Transcripts For CSPAN2 Supreme 20240705

Your argument case 221219, leless versus the department of commerce. Marston martin as. Mister chief justice, may it please the court. For too long chevron has distorted the judicial process and undermined stato inrpretation. It should be overruled for three reasons, first, cheon violates the constitution. Article 3 a pers judges to say what the law is. It requires them to interpret federal statutes using their stnd independent judgment. Chevron undermines that du. It reallocate interpreti authorities from courts to agencies and forces courts to adopt inferior agency constructions that are issued for political or policy reasons. In doingso, chevron blocks judges from serving as faithful agents of congress. It mandates judicial biaan encourages agency overreach. By removing key checks on ecutive power it threatens individual liberty. Chevron also violates the apa, the most straightforward reading of section 706 requires review of legal questions. Congre put constitutional and statutory interpretati o equal footing anreired independent legal judgment to both. As Justice Scalia wrote, the text contemplatescourts, not agencies will authoritatively resolve ambiguities and statutes. And third, this courts only justification for chevron is the implied delegation theory but that theory is a fiction. There is no reason to think congress intends every ambiguity ve statute to give agencies ongoing power to interpret and reinterefederal law in ways that override its best meaning. In this case the agency misinterpreted the msa to for struggling fishermen to pay up to 20 of their annual profits to federal ant the government says that even if all nine of you agree with us that the agencys construction is worse than ours youhould nonetheless defer to that construction and uphold their program under chevron. Thats not consistent with the rule of la if we have the best view of the statute we should win this case. I welcome the courts questions. M martinez, how much difference is intentioned with the judicial role . T very much intention. How much would it require . Your argument is that chevrons difference is problematic but how do we determine how much difference is too much difference . You have crossed the line when youav a rule that says we will alcate Interpretive Authority from article 3 courts to an agency so when youve got difference that amounts to that which is what chevron deference is than ihi youve crossed the line. What you ve really done what im asking is how do we know whe t line is, we showed difference, the skidmore deference, we are deferential in factfinding et cetera. So im just trying to determine whether you are saying if it is not do no file review, presumptions or deference, then it is probletic. Difference becomes problematic when it requires a judge to say the law means x when the judge thinks the law meansy. Skidmore deferen is not problematic be doesnt require that. It essentially says, we would be comfortable with skidmore, because the agency has an Important Role to play in the process oft the agencies helped draft the stute, the agency has knowledge of policy context around the statute and its implementation, courts should pay special attention to what agencies say buthe agency ultimate whas to bring its expertise to bear in a way that is persuasive. The court isnt peuasive. If the court thinks the law means x even if the agency think the law meansy the court needs to go with the best interpretation of the statute just like it does in every other area of statutory constitutional interpretation. Suppose the statute says the department of transrtation will set length limits for trucks that a reasonable. Is that a legal question for the court, or is tt a policy question for the agency . The Legal Authority says they have to be reasonable. Thats a term tha courts apply in many situations. I think a court looking at that statute would determine the best meaning of the statute and the best meaning of the statute there would be the use of the term reasonable confers upon the Agency Discretion to choose among certain policy options. That dsnt mean the agency can do whatever it wants because there are limits and the court has to police the limits, michigan versuepa is a good example. Congress used a broad term le appropriate and the question, wasnt similar to reasonably giving the agency a range of discretion but at the same time when the agency said we don have to consider costs in figuring out of something is appropriate the court said no as a legal matter, the best interpretation of the word apopriate in the context of the statute requires the agency what statute says the agency can regulate truck length for vehicles that travel in interstate mmerce, question whether or not the delegation for interstateommerce is satisfied in particular circumstancethat are present . That would be a case ofhe court were called upon to interpret if the dispute was about what interstate commerce means that would be a classic legal question that would be legal question for the court. It highlights because intetate commerce is probably there because of the constitutional limitations, highlights the fact that really the me rules should apply to interpreting constitutional you could imagine situations where interstate commerce determinations were fac bound, trucks transferring loads, transfer points on borders for each one or not. Isnt the policy judgment of the agency pertinent in that situation . The policy judgment of the agency is pertinent in determining the facts because the agency might be on the ground and understand the factual scenario but theres an important legal oonent to that question. And any other context, for example if you were interpreting the constitution the court would think it is its own job to interpret the constitutional requirement of interstate commerce and would give its best meaning. Let me give you a few your examples along the same lines. Is a new product designed to promote healthy chesterol levels a dietary supplement or drug . Can you give that one more time . A new product designed to promothealthy cholesterol levels. Ist a dietary supplement, thats a statutory term, or drug . I think it would depend on the original understanding of the text of the statute read in context. You think the court should determine whether this new product is a diery supplement or drug without giving deference to the agency where it is not clear from the text of the statute or from using any traditiol methods of statutory interpretation whether in fact a new product is a dietary you want the courts to decide that . With respect to that question or any other legal question i think what the court would do, there are going to be hard questions but i thi the court would bring the tritional tools of construction to bear. They do that der chevron. Weve made clear all the traditional tools. If you can find an answer, that is the answer. The court is very rarely in the situation in wch you are talking where it thinks the law means x and instead it saysy. If it thinks it means x under chevron as we have understood it and made clear and drained it in a little bit over these la few years it is supposed to say x but sometimes lara runs out. Sometimes theres a gap. Sometimes theres a genuine ambiguity. I dont know. In that case i would rather haveeople at hhs telling me if this new product was a dietary supplement or drug. First of all i dont think chevron is a doctor that only applies to tiebreaker 5050 scenarios. It was ner understood that way and Justice Scalia in 1989 there are just sometimes when you lk at a statute and the most honest reading is that theres a gap there. Because of the limits of language, because of the limits of our ability to predict the future andho fills that gap . What i would push back on his i dont think theres a gap if the court looks at the statute and thinks this is a really hard case, really close statut 52 likely, 52 confidence the x is right. Another one. Does the term power producon, these are real cases. These are typil chevron cases. Does the term Power Production capacity refer to ac power sent to the electric grid or dc power that is produced by a solar panel . Same answer as the first hypothetical but let me give you a different framework for thinkingbout this problem. Lets imagine if the statute me to accord before the agency acted in the first place. What what court do . What a court look at the statutory term like that as presenti a hard interpretive question and say this is hard, 5248, the law has run outnd im not going to do that, the court would with the best interpretaon. The court in that case would have to make a choice but you see herthe court can say the best optn is to listen carefully d to defer if it is asonable and consistent with everything we know Congress Said to defer to people who kn things about these things to people o understand the way particular questions fit in a broader statutory and regulatory scheme, the people who have understanding of the pocies and the factor that led to this. 1 3 example from my last one. U know about which is irestne chevron. It is a stationary source in the clean air act. Does it refer to coal plants for each pollution emiing device within the plant . We think the decision reflected the best interpretati with respect to justice course whichs other cpa. We think if that was the best interpretation, can i go back and what you described earlier about listening to the agey and taking into account of those things. Our rule would allow that. That skidmore. The only difference between o rule and the skidmore approach and after listening to the agencys explanation, all the things you said, if the court isnt persuaded by the agency, the agencys interpretation is rrect, chevron would say you still have to go with the agency. Why not . I think this is all around the wordmbiguity. I know that there have been some earlier cases that suggested that if thereere two plausible meanings u went with the agency meaning. I thin weve gone far beyond that. It has to be two reasoble meanings. Assuming, you make an assumption that ere is a best answer. I dont know how you can say theres a best answer when justices of this court routinely disagree and we routinely disagree. Is the best answer simply majority answer . When i dissent i tnk otrs got often do but putting that aside, in those situations, there are two plausible, not nearly plausible, there are two best answers, the question is o makes the choice or helps you make the choice, and if the court can disagree reasonably and comes to that tiebreaker point, it could be 5149, it could 5253. If it is that close, why shouldnt the person with all the qualities we spoke about, the entity come with all t qualities, expertise, experience, on the ground execution, knowledge of consequences, why shouldnt deference be given to th . I think your explanation of ambiguity just now proves the problem with chevron. What you sai is whenever theres a case, stutory case in which members of the court disagree with one anoer that is essentially saying the statute is ambiguous because rele people nobody believes as weve described it, if you work hard to figure out a statutory problem, it you dont say it is difficult, there are two interpretations, not everybody agrees with this in 3 seconds flat, you nt say that. Everything you do, look at the text, look at legislative history if you believe in legislative history. Ok at context. Look at every tool you can, and still there are places where we nt know whether this drug, whether this product is a drug or a dietary supplement, and it is best to defer to people who had long experience o the ground, who have seen 10 of these kinds of situations and judges should know what they dont know. I think i uerstood Justice Sotomayor to be saying wn justices disagree about the mess the meaning of the statute becauseveryone on the court is reasonable that showshere is an ambiguity. If thats the test, that cant be wrong. My implication was using the statutory tools, you can still come abusing them in good faith, using them, you c still come up with no answer. No clear answer. You can come up with no clear answer because some statutes are hard. You can come up with the best answer in the reason i think that. Because a majority agrees. Because if you had the same statute with the same interpretive question sed to you without the agency having acted i dont think you would say theres no answer here. You would choose the best answer. Im struggling to understand wh is at stake here given the questions becae as i derstand Justice Kagans hypotheticals, one option would be to y it is ambiguous and the Agency Always wins. Thats what i understood evron to mean coming in here today. Another would be to listen carefully to both sides and provide special weit under skidmore to a coequal branch of governments views about the law, which one would think we would do anyway and would be considered great great weight in arriving at the be aner and the same if there were no interpretive principles advanced by the executive branch, if there hadnt been some sort of rule o adjudication, is that correct . Tha is correct and the difference between the skidmore approach you just id out in the chevron approach is at the end of the day once you conser the expertise and information the agency has to be, who is the judge persuaded are not persuaded . Is the judge persued at the end day with proper deference given to a coequal branch of government or does the judge abdicate that responsibility and say automatically whatever the agency says wins . Even if the judge is not persuaded. If i could just finish up. What is the effective difference of that . Ems to me in the first case when a judge says heres the law it is settled, we are done. Can be appealed but at the end of the day if the Supreme Court upholds that interpretation, we are finishe whereas under chevron, are finished . What happens . The agency can overrule what the court said. The ency can over what itself said. Thats a strange thing that in every other area of statutory interpretation we understand the law have one fixed meaning of the goal is to figure out that fixed meaning buchevron, by design creates this world in which the agency is because there is this zone of discretion the agency can flipflop and then force courts to flipflop with them. Im strk on that score by the brand x cas which involved broadband in which this court said okay, agency, you add a medically win. With respect to one interpretation, the Bush Administration i think it was and of course the next Administration Proposed an opposite rule and t next administration flipped it back closer to the first, the present administration seeing about goi back to wre it plays a real prlem, chevron is a reliance destroying documents. Imagine if you are a personal regulated tity trying to figure out what theaw is, the best interpretation of the law and not have to check the cfr every couple years to see if the law has changed. Chevro skidmore would allow courts to provide meaningful consideration to persuasive opinions by agencies. The only thing it doesnt do is require a court to give up its interpretive say and deeper to interpretation that is n persuasive. What i am stuck on is what seems to be an aumption your argument that every question posed with respect to interpreting a statute is a gaone. I see chevron as doing the very important work of helping courts stay away from policymaking. I would like to go through that le a help me understand why, if we do away with chevrons framework, we wont have a problem of courts actually making a policy decision . Justice kagan gave a number of examples and i think the reason thosexamples are hard or ambiguous or whatever is because at bottom they are not asking legal questions, they are asking policy questions. How is it th stationary source is to be designed, thats not really a legal question. There could several reasonable ways of interpreting that and at the end ofhe day, i think the way iave been thinking about chevrons congsses given that policy choice to thegey and my concern is that if we take away Something Like chevron, the court will then suddenly become become a policymaker by majority rule or not, making policy determinaon so how can we avoid that . We agree the cous should not be involved in policymaking and the enterprise of statutory interpretation when properly understood is designed to take courts out of policymaking because what the court is trying to do is act as a faithful agent of what congress has done and find the best is that what chevron does. s and chevron step one, even in this very case asking the question, one, has congrs made that policy determination. For example here the question is whether or not monitors on boats have to be paid for by the owner of the boat . I see that as a policy question. Congress could have said yes o no, theres nothing about law inherently in the question of should the monitors on the boat be paid for by the owners or the government so step one is, has congress and the statute swered that question, when we say no, everybody agrees thats not in the statute, then we say the agency camake that determination so long as they do so in a reasonable way, and court sort of police the boundaries of reasonableness but whether orothe monitors are paid for is not a legal question. He question of whether or not the law allows the agency to force the monitors to be paid for by private industry is solutely a legal question. Igree with you that is not the same question, isnt thatus another way of saying policy determination made by the agency i dont think so. The difference when the policymaker whether congress or the ancis sitting there trying to figure out the best policy, would the world be a better place if industry has to pay for these monitors or not. That is a policy question. Because when it comes to a court the courts not figuring out the best thing for the world, the court is figuring out what did congress wa here. I guess im aai the court really is figuring out what the best thing in the world is if we look at it through your lens. If the answer to the question ishould they pay for it or not, the agency has a ew and unless we are deferring to that view, the question the court should be answering is not should agency, should industry pay for the monitors, the question the court should be answering is did congress require or all agency to pay for that and thats a different question thunderstanding of statutory interpretation is a difference between law and policymaking, they are to their to exerci judgment, serving as neutral umpires, not players so here, what is the estion warsupposed to be answering . Does t statute require, has congress required the monitors to be paid for by industry or given the agency the authority to make that decision and i dont think, both ofse versions of that question i legal questions and the answer is no. Can i ask about the line between law and policy . I want to ask in the context of Justice Kagans example. Wheres the line between something that woulde bject to arbitrary and caprious review and something that the question of law . Im wondering if we can s the definition of Dietary Supplements or drugs mig be something that is a question of statutory interpretation and the context of the statute but which category might be question of policy for the agency. Ishat possible . That would be more of an application of factual question but the core question of what is the meaning of diety sulent, those are legal whether this particular cholesterol reducing drug selling one pattern or the other depends on how does this function. What is the mechanism . Thats right but i think it is important to retain the legal component of that question and make sure the courts have authority over that legal component. Let me ask about your article 3 argument. Justice thomas asked what the line is and courts all the time make judgments about whether things are reasonable but i dont derstand you to be disagreeing that things like whether something, and agency can be tasked with deciding what is the most feasible and useful and reasonable, court could do that too. Is that a delegation of judial power that would offend article 3 in your view . The way to think about those kinds of statutory provisions would be the best interpretaon of the statute given the nature of the word asonable in context is to confer a range of discretion on the agency. I think the court in that case if the agency is operating within the rangef discretion that is arbitrary and capricious review. Is the agency is operating at the edge and you have to figure out where the guardrails are thats the legal question so if the statute says the agcy can pick red, blue or green the choice among those options is for the agency but if you have a legal question like does pink count as read that is a legal question. Thank you, mr. Martinez. How much of the actual question onheround is this . I saw a study that said we havent relied on chevron for 14 years, an the judge for 10 years who has never invoked chevron step 2, judges are used to deciding things andhe they get around to doing it they tend to think what tyve come up with is not only the best answer but the on answer. And i just wonder how oen this comes up. It comes up lot. Thisourt hasnt relied on chevron since 2016 but the lower court still have apply it. These cases show what happens when courts are applying this doctrine, they are getting to a point they dont have to figure t the best answer. Instead of asking what doethe statute mean that can ask a different question which is is the state ambiguous enough that they let the agency do the work for us. Justice alito . Would you agree one of the reasons chevron was originall so popular was concern that judges were allowing their policy views, consciously or unconsciously, to influence their interpretation of the statutes in question . Yes. Why was that fewer unfounded . Three things. First of all, i think the fear has diminish over time regardless of what was then i large part due to the cellular storage of elements in the way this court and lower courts generally now think about statutory construction. In the old days there was a lot of reliance on legislative history and eeflowing analysis that made it easier for policy considerations to infect judicial decisionmaking but this court has made clr that we should be text focuse unfaithful agency to congress so that is one difference. Anher difference is courts now have become more appreciative of the fact that we are not just talking about rules of judicial he made commonlaw how to interpt statut, we have the ata here. Justice scalias a big defender of chevron in its original incarnation but overcome time came trealize there was text that bore on this question. When youre enforcing that xt you come to the same place as article 3 argument which is courts have to exercise independent judgment. Do you think the tenets o interpretation we have now on all the other tools that we have in our statutory interpretation, tokit, are, like the enigma chine so we have these statutes and they are written in code and we ru them through the and ecmo machine and we have the best interpretation, do you think thats how it works . What this court does with respect tohe normal construction is it generates those cannons, rough rul of thumb to help guidthe interpretive process because if the court believes the canons best approximate the best original meaning of the statute especially, someannons that are not purely textual cannons but a informed by constitutionaloundational constitutional values, is chevrons theoryifferent from that . With chevron you are doing someing, not trying to find the best interpretion anymore, you are agreeing you have to impose the not best interpretation because you have to defer. Unlike the oth cannons, this is the only one it says to courts you can stop doing the normal interpretive funio and we will allocate that interpretive function outside of article 3. Thank you. The solicitor general or someone has given us a list of 77 cases in which the court has used the chevron approach and interpreted what the l was. You are overruling chevron. No. Your out is storage us isis now . So the agency does Something Else . People can come backecause it is not storage us isis . With respect to the effects of applying normal rules of construction instead of chevron i say two thingsfirst of all, the 7 day holdings, bottomline holdings in those cases would get storage us isis so they would not be undermined, theres no convulsive change of the law with respect. I dtnderstand what happens when you have a new approach but let me move on to the second part of my question which is the cases that come to the court are usually the hard cases, you say in the last 14 years weve barely referenced chevron. Do you know what the bre up is . How often have we been consistently upheld the agency in these cases . In cases since 2016, i dont know the track record. B i will say n the side where we disagree, do you suggest that our disagreements were based on ignoring of chevron or doing exactly what you say we should be doing wch is to say this is outside the bounds of reasonableness or around the guardrails because you are going outside of plausible reasonable interpretation. In cases like the American Hospital case or Digital Realty case are two rent examples, the court unanimouy overturned the Lower Court Decision because it does exactly the right thing, it do the cannons and the statute is clear but what those decisions show us how unworkable chevron ibecause the lower courts didn really do what they were supposed to do and came to the opposite conclusi not necessarily because they thought your interpretation wasnt the best but because it taught statute was ambiguous enough that it required deference. That judgment isnhent in every question. That kind of problem is not just judging but decisionmaking period of life so it is not clear to me that the fact that there may be some ambiguity about how much ambiguit a question Justice Thomas asked, takes away from the basic premise of chevron which is a reasonable interpretation within the bounds of common statutory interpretation should be given deference. I do think the ambuity trigger introduces a threshold question thats very hard to apply neutrally. You have great judges, never requir him to go past the. Judge silvers a man, another great judge said that in most cases he thoht the statute was ambiguous and if theres that much disagreement then i think thats a sign that chevron isnt worble and this court tried to rainous ws but ose efforts show is you need a secret decoder ring to figure out at the law means under this courts approach, you ha to apply a robust stepne inquiry, taking into account footte 9 and taking into account how much ambiguity is needed, in the dc circuit you do step one. 5 wheryou have to figure out whether the agencyecognize the statute was ambiguous. Under kaiser theres step 3 that says turnudeference when the agency is operating outside its area of expertise and overlying that youav major questions so i think thats course creation. The courts creation because it is trying to solve the fundamental problem which is chevron is doing some very weird, taking Interpretive Authority that belongs to court and giving it to agencies so all these bells and whistles our efforts to addre symptoms but its time for the court to address the undlyg problem which is chevron itself. I wonder if you look at this from cgresss perspective. What is the next piece of legislation on the horizon. Who knows . Dont have a crystal ball but im going to guess that it is Artificial Intelligence. Lets imagin congress and act an Artificial Intelligence bill and has all kinds of delegations, maybe it create an agency for theurpose or uses exiing agencies and has all kin of delegations to that agency or agencies about how regulate Artificial Intelligence so the nation can capture opportunities and meets the challengesf that. By the nature of things and the nature of the subject there will be all kinds places where although thes not explicit delation congress has left a gap, created and ambiguity. What congress is thinking is do we want courts to fill that gap or do we want an agency to fill that gap . Wh the normal techniques of legal interpretation have run out, the matter of artificl intelligence, what does congss want, Mister Martin is . Congress wants courts to terpret the best interpretation. Congress knows there are going to be gaps because congress can hardly see a week in the future with respect to the subject let alone a year or a dede in the future and Congress Knows there are gng to be things that will just not be clear how this will apply or what it will mean with respect to countless factual situations this country will have to address. Does Congress Want this court to decidehose questions policy laden questions of artificial intligence . I dont thinkongress wants the court to do policy, but its ordinary function which is terpret the law and apply the best understanding of the law. The implication of your question is this is some sort of intentional delegation by congress, the chevron deference is implicit delegation but i dont think thats right. Many people including an insightful article you wrote 20 years ago make clear this is fictional. It is academic speak for presumed. We are presuming conessional intent, theongressional intent is delegation explicit on the facof the statute but what we are thinking is Congress Knows things about different institutions about what they know, their competence, and Congress Know that this court and lower courts are not competent with respect to deciding all the quesons about ai that are going to come up in the fure and what Congress Wants, we presume, is for people who know about ai to decide those questions and al those same people who know about ai are peop w to some degree in some way are accountable to the political process, they have constiencies, they have factfinding abilities, they ar obligated to go consult with people, they report to a president who needs to be ected and all kinds of ways with respect expertise and with respect to their connections to the public and other policies out making entities those are the people cgress wants to decide questions amncaut ai. We dont even know what the questions are aut ai little on the answers to them, we being the cour. If we are trying to fure out the reasonable thing to infer to congress, the far more reasonable presumption,he one thats most consistent with our constitutional structure is congress wilpresume courts will do policy, they will pick the best interpretation, the cots best interpretation as to the statute the same y they would do it with respect to any other statute and i think this case, ai is a trickier example this case, whether it is is not hiding here. The issue we are deciding is more like that, more likely countless poly issues that are going to confront this country in the yes and decades ahead. Will courts beble to decide these issues abt things they know nothing about . Courts that are completely disconnected from the policy process, the political process, and just dont have any experte and experience in an area or are people in agencies going to do that, thats what the case is about. The constitutional answers Congress Needs to set the rules with respect to ai. It can delegate some policymaking dcretion to agencies, but once the law is written in interpretive function has begun, that job is for the courts. I ink this case is a good example because the problem with chevron, curis to see what the solicitor general says but does anyone think congress is presuming the agency would get to decide the question of who pays . One last question. Do you thi that congress could codify chevron . I dont think so because i think a statute that codifies chevron would say that the interpreve authority has been reallocated from the court to the ency. That Interpretation Congress cannot decide that in cases after all the statutory tools have been used and there remains gap or ambiguity congress could not who know something about somhing to decide the questions that will be left over. That gives away and would take away from courts and give to agencies core judicial interpretive authori. I dont think congress could do that the same way congss couldnt tell the president how to exercise the pardon power, cant tell courts how to do interpretation and defer to someone else. Thank you. Justice gore such. Do we have to decide the constitutional question . It make sense to deci the constitutional question. Do we have to . You could resolve this case under the apa and we wou welcome an interpretation that comes our way especially informed by constitutional avoidance principles that have a lot of salience here is anything in your argumen suggest or depend upon the idea that judges should make or decide policy questions about ai . No. We one hundred agree judges should not do policy. We just think they should do law. Chevron is about legal questions. The queion about past decisions. This court has moved away from using legislative histo to some degree. Weve made other changes in interpretive approaches without coresss intervention, soreign immunity context returning to the clear statemt rule that preexisted, the courts jurisprudence for 0 years and then we wandered into legislative history and circle back around and corrted our own mistake which we had to deal with the question of what to do with those precedents. Our answer was to leave them alone from those ancient regimes. Are u asking us to do anything different when it comes to chevron . No. If i could explain how i think the world would look with respect to the oldases, story decisives would apply to those cases. I dont think anything would change, stationary source would still mean what it meant when the court issued the bottom line interpretation and i dont think a ruling in favor of our side would require or entail returning any of those cases what we care about is prospectively with respect to the fishing regulation herein with respect to other cases that come forward to the courts making sure the courts are the ones doing the interpreting and not agencies. Justice kavanaugh. First of all on skidmore there was reference to skids a more deference and i guess i dont think that is the right term, at it is respect or Pay Attention to, but if we throw the term difference, we are going to walk into other problem like we have witthe chevron deference. Deference is ambiguous. It is inrecise. I think the better way, often times when people say deference what they mean is if you think the answer is x you should defer to someone elses answer which is different. I think that would be inapproprie. I would not use skidmore deference, it runs the risk of giving that implication. We are talki serious consideration of the points the agency makes but ultimately you have to be persuaded. If you are persuaded, that means you concluded thegency has the best interpretation and you apply the rules. Skidmore is about the power to persuad not control. Exactly. On the constitutional issue that jtice new gore such and Justice Kagan were raising, we ve lots of questions about overruling chevron without breaching the constitutional issue. So iuess why would we reach, we agreed with you on overruling chevron on other grounds, the need to address a hypothetical the justi kagan raised about Congress Passing a chevron type regime . Like i said earlier we would welcome overruling chevron especially under the apa if informed by constitional avoidance principles but there arehree reasons you should consider going beyond that to the constitutional holngs. There will be some cases tha as a technical matter section 706 of the apa doesnt apply so if it is an apa holding it may be in those cases there might be lingering uncertainty whether deference should apply to cases that are not technically under section 706. A lot of the analysis figuring out the duty to interpret the law, a lot of that analysis overlaps with the constitutional points and it is not that far, not that different to agree with us on the constitution as well. The court efers to rule on nonconstitutional grounds and recognized that theres a ty about what the constitution needs. I would submit this is one of those situations. On the question how much does chevron matter on the ground, i think you addreed this by citing judge silverman. There are a lot of cases. Very regularly. It happens all the time. The two cases like these two, that suggested it is hard to figure out how chevr step one is supposed to work. Thats case where there was a statutory definition of the term whistleblower tha required the person to have goneo the sec and submitted a complaint and the government concluded that was ambigus, the statute to require a report to the sec. There are examples like ese that come up all the time. This court doesnt have to inrvene every time. The reason the problem is they are, you told lower courts how to do their interpretation. As long as that is out there, i got a lot of cases get it wrong and wont be in the business o error correction on each one. On the question of how congress canperate without chevron. Ngress often uses terms like the agency can use reasonable limits. That gives discretion to the agency to do what Justice Kagan was talking out, oh how the world will exist 5 or 10 years from now and not have to worry about going back to congress the question is for congress and its drafting choices. What kind of broad terms that users as posed to more defined terms or statutory language. That is how i thought congress would operate in a world where chevron tt is exactly right. In those situations, the courts job is figuring outhe best interpretation of that word in most cases those types of capacious words are the best understaing of those words the congress is conferring the discretion on the agency. Rms or statutory terms usual kinds of statutory language. Ye it cant rewrite that. At least thats how i thought congress could operate in world where chevron does not exist. Martinez i i think thats exactly right, jusce kavanaugh. And i think that, like i said earlier, in in those situations, the courts job is basically figuring out what the best interpretation of that word is. And in many cases, maybe most cases, those types of capacious words are basically heest Justice Barrett . I want to return to the question Justice Sotomayor rais about stare decisis. You said over will show up on wooden have an effect on my cases tha it got to chevron step two and then defer to the agency. That understand you correctly . Those bottoli holdings would be right. But t btom of holngefer to so or simply the agencies and trepidation w reasonable. Maybe like an brand x they might be lik we would reach a different interpretation if it were ouric call but its ambigus so the agency cant decide. Maybe nothing happens immediately to r those cases but isnt the door open for litigants to come back and say stationa srce really means x or broadband or whatever specific term was an brand x. Isnt it inviting a flood of litigation even if for the moment those holdings stained deck . Aottomline holdings i would quibble slightly. I would describe the bottom of holdings as being the awful. s true people could ce and save introverted methods have changed since h bottom and holding was issued and we think a different result now should apply. Thats why courts consider requests to overturn precedent. I think it would apply the same standards that would apply to other stare decisis inquies and it would be the rare case at would require where a court would say this a decision that only isnt the best interpretation but its like so bad at so practically important that were going to overturn our own president. I thinkhat would be w the safeguard. Wheto you say the bottomline holdings, you change the lel ofop generality. It isnt about my building is the agencys interpretationspen to people to come backnd say it actually not lawful. This is wrong. The court got itrong because the best interpretation isnt the agency . Litigants couldake that argument but have to overcome the normal stare decisis test which is very hard to overcome. So they would have to show its really long and really practically important. Most courts is going to find that thrhold is met like almost very really almost may never. As a practical matter your not going to be offending those bottomline decisions even if you let people and three, challenge them. You just referd to as a serious stare decisis threshold though it have to be overcome so lets talk about the threshold. Why is it given his that it was in kisor. Why would a different result obtained here . I think my first edge i that the chief justices been suggested there mig be different and think the reasons why it reall is different is because there are important differences betwe chevronnd auer. The most important is showing allows an almost like a feature of chevron, not a bug, it isnt encourages and allows agenciesom to flipflop. The reliance consideration with to chevron is for the government side weaker because the agencies like to flipflop all at once were as with our deference the idea is that the agcy it will be very hard for the agency to fliflop. Its more important t crect chevron because it has a mistake thatue doesnt. There are other differees chevron is problematic because it ls agencies say what ngress intended or what congress is meaning was as opposed to saying what they themselves met wit the regulation they enacted. The deference makes more sense when youre defri to the entity that actually created the provision in question as opposed to deferring to the interpretation of a provisi that was greeted by congress. Chevron i nit limited to agency expertise. Auer is limited to anc expertise so auer is narrower. I do think theres a diffence even with respect to the apa quayth apa more clearly puts constitutional interpretation and statutory interpretation on equal footing. The plurality in kisorort o emphasize that the apa was enacted after, year after seminal rock ando maybe that was aa basis to think that congress was okay with something that look lik auer deference but thats not true. Chevnave many years after the apa. There are a lot of differences the flesh out the important what the chief justices making which was the analysis doesnt automatically transfer overet to chevron. Justice jackson . So i purchase it several times that you agree that judges should not be doing policy number should be doingaw. I guess i agree w i ttea its ay not as easy as iteems to distinguish between the two. And that it appean a lot of your answers you say you come up with the best answer, its a legal questn. But im not so sure its a legal question as opposed to is the best und the sort of policy regime. Thes a real separation of powers of danger here tod the tent that youre saying that judges are decidin whetherer or not this is Something Agency should do or not, whether this is legal question or not. Thers the old saying when yore a hammer everything looks like a nail. Im concern judges are going to look at all of the questions related to a stu and call them legal if we dont have Something Like chevron that requires judges to be actually thinking about their proper role relative to this issue. How can you assuage my concern in that regard . I think t points. The first i would make on the distinction between law and policy and how the kind of may e seem like they blur together. I think there are so many instances in which a court can get ain question that comes befe it, may be involved in agency regime but the agencyas an active jet. The court in that circumstance does its best. It doesnt have guidance for from agency. It does itst best. But doe it have to . Are other regimeses in which a courts presented with a question and identifies it as a policy question that i cannot answer. What im saying is its not necessarily true that just because the court gets an issue it automatically says this must be legal. I have to a. If the court, to go back to Justice Kagan isez hypothetical, what is aietary supplement and thegency had not acted i think the court would absolutely give meaning to that. I dont think the court wld think what it is doing is making policy. Let me give you a particular example. In the food and drug and cosmetic act situation, new drugs can be approved only at adequate and wellcontrolled investigation shows that the drug will hets intended effect. This term, what is an adequate and wellcontrolled investigation, is it your view Congress Wanted to courts to decide what iteans for study to be adequate or wellcontrolled . How would a court go about determining something determine whether that somhing its supposed be doing or the agency is supposed meeting . I think what that means is the court would go in and do everything that we all agree should happen under step one. The onlyop difference i it after doing a step what analysis the courtth concludes theres a betr view and a o less better you coe in the court should goith the better view. When does the court dide this is not my call . I guess thats a part that opping out for me in you analysis. You jt say we do step what analysis that then the court makes the interpretive decision about what this mns. I i dont think the court evr says its not my call if the question in front of it is a question of statury interpretation. Every statutory interpretation question is one of law thatay court can decide, you are saying . Yes. Theres never a statutory iserpretation question that when a policy that you see congress may have been intending to agency to enter . By definition people talk about interpreting a statute your talk about a legal question in the same we are taught by the interpreting the constitution thenen you have a constitutional question. No one sayou wouldve applied deference there. So thes never a world, maybe we just differ on this. Im worried about the courts becoming ur legislators, that we have a oneway some of the experts have lood at this, some of the legal scholars have looked at this is tha they say when theres an ambiguity that are different kinds of ambiguities. You migh have a situation in which theres a statutory term and it is ambiguous in a sense that t are several reasonable meanings of what statutory source might mean, for example, several different ways you could fi that. When you get down to the level of analysis, the question is, whos goinggs to make the choice as between what those meanings are . And i hr you saying that might be a best choice, but i guess it were talking about a policy question, there are several reonable meanings, why should the court be the one to make that determination . An couldnt we be in a rubber congress intended for the agency to actually decide which choice is best . Where would disagree is what you set at the end when you assume it was aolicy question. I would say if the question is the meaning of a statutory term thats an interpretive question that the legal question and would be treated as a legal question if you cut that accessing question for the agency had acted. Let me ask you one more thing about practical implications. But say it is a legal question and youve analyzed adequate a controlled investigations. If i am an agency and im trying to be responsible, how is ts going to work as a practical matter . Is t agency going to goow to court every time it gets one of thesees undefined terms in a statute and seek a declaratory judgment as to meaningf adequate a controlled, and wellcontrolled investigations before goes forrd with its policy . No. All right. So the agency canha come up with its o definition and implement it as an way to be sued with respect to that, and eve term undefined in a statute 112 litigation about . What the agency has use whatever no such do which is hard to get with the law mns and then act accordingly. If someone challenges that the net will get sorted out if theres a legal question, statutory interpretation questi that will get sorted out by the courts. What we do about the chaos we talked aut in the city partington case that comesrom perhaps having different courts, right . With 11 different jurisdiions that have Legal Authority. So Something Likehe definition of adequate and wellcontrolled investigations you sayhe courts will sort it out. First of all it will take years perhaps for the courts to sort it out. What is a agency supposede doing in the meantime . And different courts from all of these dferent jurisdictions could actually have a different ews Justice Sotomayor pointed o of what adequate and wellcontrolled investigations are supposed to a do. So isnt it sort of impractical and chaotic to have a wld in which every undefined term in the statute is subject to litigation if youre trying tost govern . I dont think its impractical. I think to the extent that Justice Kagans questions sort of indicate theres actually a relatively small set of cases in which chevron is going to make a difference you have the same problem with respect to the cases that maybe 20 years ago unde a loser aroach to chevron wouldnt have gotten deference. Wouldnt youav more of her palm in the world in which weve gotten rid of chevron because thats going to give incentives to parties to raise legal issues that they wldnt have raced before . I dont think its a problem to have parties if they think and agencie overstepping the boundaries. But under chevron rege, right,hats the background rule, then yre going to parties thinking twice before going to have a litigation road wi rpect to a term because they are going to sayt the end of day the agency has a reasonable interpretation, thats with the court is going to find, so its not youre going to parties being less likelyo challenge Agency Action tt is unlawful under the be interpretation of the state because a noteto when the going to courthe judge is not going to play its independent neutral judgment and instead is going to tt the scales and defer to agency. Thank you. Thank you, counsel. Gene prelogar. Mr. Chief justice, and mayt please the court. The chevron framework is a bedrock principle of administrative l with deep roots in thismr courts jurisprudenc overbuilding of president is never a small matter, overruling a president as foundational as chevron suld require actually ked wigner justification, and petitioners dont have one. They say that article iii requires dnovo review of all statutory interpretation questions. But thats flatly inconsistent with precedent going back to the Marshall Court and with the traditional limits on mandamus jurisdiction, which governed most jicial review of executive action in the early republic. Theyve said that chevron violesue process. But the applicatn of deferential standards of review doesnt constitute impermissible bias. Anth contend that the apa requires de novo review. But that theory is inconsistent with the statutes history and the way its be understood ever since its enactment, including in the more th 7cases in which this court has relied on chevron to sustain an agens interpretation. On top of all that, reliance interestin this context are at their apex. Congress, agencies, states, regulated parties, and the American Public have all relied on chevron and the regulations upheld under it to make important decisions thatou be upended by overruling that framework. Thousands of judicial decions sustaining an agencys rulemaking or adjudication as reasonable would be en to challenge, and that profound disruption is pecially unwarranted because congress could modify or overrule the chevron framework at any time. Congress has many tis considered proposals to do so, but its never taken that step. Instead, congress has legislated for decades with chevron as the background rule informing the degree of discretion that congressas chosen to confer on federal agencies. Just five years ago kisor, this court declined similar calls t overrule the auer deference doctrine based on many of the same flawed arguments that petitioners are making here. The court served that it would be the rare overruling that would introduce so much inability into so many areas of the law, all in one blow. Overruling chevron would be an even greater and unwranted shock to the legal system. I welcome the courts questions. Justice thomas general, section 706 of the apa was not mentioned in chevron. How would you reconce the requirements of on is on federal courts under 706 with your view of chevron . General prelogar section 706 says that courts should decide all relevant questions of law and interpret statutesbut none of that is inconsistent with the chevroframework because 706 doesnt prescribe a universal standard of view to govern those kinds of statutory interpretation questions. And the urts are interpreting statutes when they walk through the chevron framework. First, theres all the work that the court does at step one of chevron. That is using the tools of interetation to identify whether congress has spoken to the issue in the case and, if so, chevron said thats the end of theatter. So, in that sense, in a step one case, the court has, of course, interpreted thstatute. But, in a situation where, at the end of that interpretive process, the court is left with no conclusion that its actually able to ascertain that congress has spoken, then, in that circumstance, i think the right interpretation othe statute is that Congress Left a gap or maybe created an ambiguity and simultaneoly vested the agency with the important responsibility, pursuant to an exess delegation, to administer that statute with t regulations that have the force law. And thats within tells the court what the relevant question of law thats left over to resolve is. Its whether the agency acted within the bounds that congress itself prescribed. So i dont think theres any fundamenl incompatibility with section 706 and what cheon dictates about how to think about congresss delegaons. Justice sotomayor can i say, counsel general, i know plenty of statutes where congress uses the word de vo. It didnt here, correct, in 706 . General prelogar thas correct. Justice sotomayor i thought it, and i think it, would be revolutionary to say that congress canlimit judicial review. Aedpa is the quintessential question where wnot only give deference to state court decisions, we say even if got it wrong, if it didnt get it unreasonably wng, we are superseding the courts ability to declare a violaon of the constitution and give relief. So i i i think it would be radical to say that congress couldnt implement chevron. In fact, there is legislation to overrule chevron, requiring de novo review, that hasnt ssed. There are statutes that basically dont say apply de novoeview, correct . General prelogar yes. Justice sotomayor and there are statutes that require differential review explicitly to legal questions, correct . General prelogar yes. Justice sotomayor besides chevn . General prelogar yes. Justice somar all right. So now we have were now at 706. And my your adversary, your opposi counsel, said that he didnt see that much disrupti from overruling chevron, that nobody would really ing up those old cases. Do you have a view on that general prelogar i think that my friend, it it might be easy for him to say that because he inot going to be involved in the endless litigation that i think would result if this court were to overrule chevron. I understand his point to be that all of the holdings in those cases will be secure because stare decis will apply in those contexts. But the important thinto realize is that in those cases, as Justice Barretts quesons emphasized, the court has decided that what the agency did was reasonable. The statute has essentially been interpred to vest the agency with discretion such that the agencys gulation is being held lawful or valid on the basis of reasonabless, and i think that that means that litigants will come out of t woodwork seeking to open those decisions and contending that they didnt actually address what they now say is the relevant question, not whether the agencys interpretation is reasonable or whether the regulation can be upheld on that basis, but how the statute should be interpreted without anng any deference to the agencys interpretation. Chief Justice Roberts counsel, ill ask you the same question i asked your friend. Yobegan by saying chevron is foundational. Get a lot of statutory interpretations from agencies, and i dont know whether it was 14 or 16 years, we havent relied on chevron over tt time. I i mean, have we overruled it in practice even weve let the had to leave the lower courts to continue to grapple with it . Geral prelogar no, i dont think so, mr. Chief justice. Its been eight years since this court relied on chevron at step two, but theres no case that my friends haveeen able to point to where the court has said that a statute was biguous or left a gap and chevron would otherwise apply,ut the court is not going to defer in that circumstance. I think that that chief justice berts no. But, i mean, thats simply a functionf the fact, when when we go through the work of trying to interpret what a statute means, when we get to the end, that seems to be the right interpretation, and general prelogar i agree. Those are step one holdings. So i so i thinkhat they are consistent witthe chevron framework. And the fact that this court hasnt had a step two case in recent years in no wayndates that in those cases where congress is,n ct, leaving ambiguities or gaps, chevron no longer sets the right ground rule for understanding the scope of the delegation. Justice kavaug can i ask you abouwhat i see is an internal inconsistency in chevron itself . It relates to footnote 9, which is instructs that a court should use all the traditional tools of statutory interpretaon before getting to step two. My concern about that or my confusion about that is, if you use all the traditionatools of statutory interpretation, youll get an answer. And we know that because, in cases where we dont have an agency involved and we usehose same traditional tools, we get an answer. So how do we deal with footnote 9,hich seems to suggest that youll never get to step twof you follow footnote 9 by what it says . General prelogar so what the court saidn footnote 9 is that the court should use all of the tradional tools to ascertain whether congress had an intent on the issue. And that, of course, is an important part of this framework because, if Congress Actually spoke to the issue, then the agency doesnt have any discretion to act in a way thats contrary to congresss express direction. Justice kavanaugh do you think ths different from ascertaining what the statute means . General prelogar i thinthat there can be a relevant difference and it touches on exactly what you were asking about in the context where a court s to do it without an agency. In that circumstance, i think its absolutely right that e court is ultimately going to keep working and decide how it thinks the statute should best be ainistered, even in the circumstance where there might be an ambiguity or a gap to fill. But what chevron recognizeis that there is a third option available. Its not justongress spoke to the issue and it necessarily authorized what the agency did or congress spokto the issue and it prohibited what the agency did. There is a category of cases and statutesut there where, really, using all of the tools, the st interpretation of the statute is that congress didnt resolve it. It left that gap or ambiguity and coupleit with this express authorization to thegency to carry that statute into effect. This is congress and the agenci working together hand in hand to put into effect this Justice Kavanaugh how would you define ambiguity or how would you, if you were a judge, say, yes, this is ambiguous or no, thats not ambiguous . General prelogar so i would draw on what the court said recently in kisor where it said a statute ambiguous when the court has exhausted the tools of interptation and hasnt found a single right answer. And i recognize, Justice Kavanaugh, and you have expressed these concerns that there are some limits language here and its not subject to precise mathematical quantification, buthats because i think its a standard that inherently requires the application ofudgment. And at the end of the day, what the urt should be looking for and asking itself is, did congress resolve this one . Do i have confidence that tually ive got it, i i understand what congss meant to say in this statute and it meant to proscribe a a uniform approach to stationary source, that it has to be plantwide or it has to be a partular piece of equipment . But, in a circumstance like chevron itself with stationary source or some of the amples that the justices have been talking about with reasonable feasible, i think you can get to the end of that process and a judge could say i think, actually, the way the right way to understand this statute is that its conferring discretion on the agency to take a range of permissible approaches. Justickavanaugh do you do you think its possible for a judge to say, the best reading the statute is x, but i think it is ambiguous and, therefore, im going to defer to the agency, which has offered y . General prelogar no, i think thathat would probably Justice Kavanaugh that cant happen . I think that happens all the time. General prelogar well, i ink that there are two dferent ways in which courts use the term best interpretation of t statute. So, if what youre asking me is, is there a world in which a judge could go through the rigoroustep one inquiry, apply all of the tools, and say, i think theres a best interpretation insofar as i think congress spoke to the issue, but the agencys interpretation is it could be permissible, i recognize theres some doubt here, the answer is no. Chevron does not require court to ignore what is ascertained doing the step one inquiry. At that point, that is the the judges conclusionhat Congress Actually spoke to the issue and chevron is totally clear about this, give effect to it. But, if what youre asking me is, there a world in which the court could get to the end of the step one inquiry, decide that congress hasnt spoken to the issue,nd then say, if, in fact, the courts had been given the ro of filling the gap, i would have done it differently, i would have exercised whatever discretion that Congress Left open in this statute in a different way, even oking to things like the overall objectives in the Statutory Program as a who, then yes, of course, in that circumstance, its its implementing congressdirectives Justice Gorsuch i mean, general general prelogar for the urt to not interrupt, but those are two different very different views about what qualifies as an ambiguity youve just given us. One is there is a better interpretation. I provide it as a court. The other is well, ye, but im going to defer anyway given whever considerations you want to throw into the ambiguity bucket. And ths exactly the problem that your friends on the other side suggest have persisted in the lower courts for0 years and why some judges claim never to have found an ambiguity and other equally excellent circuit judg have said they find them all the time. And its also why, dont know, maybe a dozen or more circuit judges have writteasking us to overrule chevron. And and and nd and it also may be why one of your colleagues last year saii dont know what ambiguity means at this lectern. And shouldhat be a clue that something needs to be fixed here, that even thfederal government at the podium cant answer the question at triggers ambiguity . Youve given us two different alternatives today, and so many Lower Court Judges who just want to follow whatever we tell them to do faithfully cant figure it out. General prelar so theres a lot packed in there, Justice Gorsuch, and i want to respond to each your concerns. First, i would draw from chevron and kisor in defininwhat is an ambiguity. It is when a court has applied the tools of construction d cant ascertain that congress had an intent on the matter. So i think that thats the core question for a court at step one of chevron, and if thats the circumstance, at would only ever move a court to applying deference at step two. Now i understand the concern you expressed that maybe lower courts are too reflexively finding that theres ambiguity at justicgorsuch well, you gave us a second definition just a moment ago, and general prelogar i was trying to somemes how i thought that Justice Gorsuch some yeah. General prelog in the case law best interpretation Justice Gorsuch yes. Generaprelogar is used in two different Justice Gorsuch right. General prelogar i dont think thats a different understanding of chevron. Justice gorsh well general prelogar i think thats really a difference Justice Gorsuch your your friend general prelogar between step one and step two. Justice gorsuch your friend a year ago thought so and and and Lower Court Judges think so. General prelogar soet me respond to the concern Justice Gorsuch so you age general prelogar about Lower Court Judges. Ifou think that they are too readily finding ambiguity, i ink the court could do in this case exactly what it did in kisor Justice Gorsuch we done that, like like, 15 times over the last eight 10 years, say, really, really, really, go look at all the statuty tools, and yet here we have a case, two cases, one in which one urt found ambiguity and went to step two and another one which well, i cant tell what it did, but theres a pretty gd argument it it tried to resolve it at step one. So, even in a case involving herring fishermen and the queson whether they have to pay for government officials to be onboard their boats, which may call for some experte, but it doesnt have much to do with fishing or fisheri, it has to do with payments of of of government costs, we we Lower Court Judges even here in this rather prosaic case cant figure out what chevro means. General prelogar well, i do ink that issuing a reminder to courts about the thoroughness Justice Gorsuch another one . General prelogar hs necessary at step one could make a difference in this context. And i can just sha anecdotally on behalf of the government that we have canvassed the litigating components andooked at the lower court case law. D aftekisos granted auer deference far less freqntly, so i think it can matter and that lower courts can get that kind of message if youre worried about it. But, Justice Gorsuch, the other point to add here is that if you are concerned that lower courts have different reactions in trying to implement chevron at step one, i think its important to think about the aernative as well. Its not as though, if this court overruled chevn, thats going to get rid of statutory gaps or biguities. Justice gorsuch no, it takes general prelogar ey will persist Justice Gorsuch us back to skidmore, which justice jackson, the most ardent of new deale, wrote and that persisted in this court for 40 yearsmore or less, after the apa. And the world seemed to continue on its axis just fine. General prelogar but its not going to create greate predictability or stability or consistency across judges. Justice gorsuch thats ats general prelogar if anything, i think that Justice Gorsuch an interesting thing to suggest, at chevron predicts stability, when the whole point i didnt see you mention brand x much in your brief. But i im sorry to go back there, but my good friend, but brand x is aecipe for instability, isnt it, because each new administration n me in and undo the work of a prior one. Theyre all reasonable. I mean, my goodness, the american peoplelect them. Of course, theyre reasonable people. laughter. justice gouch and and Justice Sotomayor that may be the first laughter. would have thought that chevron, at least as this courts understood it, is a ci for antireliance. General prelogar so i disagree so i disagree with that characterization about brand x and i think my friends have kied m up some dust about exactly what brand x does and doesnt do. So you do endorse branded . It is a logical follow on of chevron. As brand x recognizes if the court is found at step one Congress Book to the issue theres no roomnder brand x of the agency to rever the court or semichange semig meaning of the statute. Instead the statute has been attributed and what congress has goes. Itsnly in category at step two casesere brand x comes into play and in that circumstance is because the court in therior case is understood the statu to leave a gap or ambiguity for the agency to fill considering a range of regulatory approaches. The meaning of statute doesnt change. It remains a gapap for the ageny to fillnd if the agenc is running through all of the procedural hoops which can be quite burdensome to change its regulatory approach it is still acting with the discretio if it issues an interpretive rule without notice and comment or issues and adjudication, it may or may not be that burdensome. Brand x also says an agency can overturn a prior judicial interpretation. I thoughthat as a circuit judge with respect i to any alin who was allowed io the country underhe tenthnt circuits understanding of the law. The government come back and says you havee to overturn your precedent, tenth circuit, a is not allowed in the country. We had overrule our judicial precedent. Do you think thats an appropriate understanding of the law that judicial precedents may be the president of this court can b overturned by the agencies . Dip into what t judicial precedent helped it would help of. Statute waslear then of course not. Brand x does require thatre resolve. If the prior president held congress did resolve the issue and delegate to the agency the responsibili and role in administering and filling thepp gap including with the possibility of changing bravely approaches based on thing like say dontlity is you overrule chevron because of be shocked to theystem but the reality of how this works is chevron itself ushersn shocks to the system every four or eight yearshen the new administration comes in, whether its Communications Law or Securities Law or competition law, eironmental law and goes from pillar two post like professor pierce wrote and he had bn a fan of chevron, now is not because he says its a source of extreme instability in the law. Thats his phrase. It seems like you Pay Attention to what happens when a new administtion comes in that epa, at sec, at ftc, you name it. Its jus massive change. Th is at war with reliance. That stabity. But to hold up stability and the lines is a little tough given watching how it operasvery four years. Let me give you a coupl of different reactions to that. Fethat is a small sliver of cass or circumstances, andn the mind run case involving Agency Regulations agencies build on those regulations as the foundation. There is no evidence agencies are after flipflopping left and right are doing so on a whim. It brings me to the important point thatt on sorry to interrupt but i dont think theyre doing it on a whim. I think they disagree with the policy of theey Prior Administration and they are using what chevron gives them and what they cant get thrgh congress to do it themselves, selfhelp, ando do it themselves unitelly, which is completely inconsisten bicameralism and presentment to get your policy objectives enacted into law. The premise i think thats embedded in the questions a ideair congress had spoken to tt issue. In cirmstance for congress didnt resolve it and the fact wanted a change of flexibility, theres nothing inhereny problematic orve incompatible wh our system of government to recognize ancies can turn out these directors. Look at stationary srce. That was a circumstance with the court said applyg all the tools. Congress dnt have you on it. It didnt want to feclose and equipment specific definition. It was entirely permissible for the expertgency to come and take stock of the entire situation and yes take account of t policy goals of an Incoming Administration to better account for the interest of the regulated parties and give them flexibility. Taking into account t policy goals of the new administration reflects a democratic structure where we d the new administration being elected byhe people on the basis of ay certain policymy col policymaking is very stable but precisely because we are not acunble to the people and have lifetimeppointments. So if we have gaps and ambiguitiesve in states and the judiciary is comingfi int fill them. I spose we would have something of a separation of powers or, excuse me, separation of powers concern related to judicial policymaking. Am i wrong to be worried abo gethat . No. That concern is valid. Itsn valid along to separate dimeions. One is to recognize in these scenarios where were we t chron step two, i definition its because the statute doesnt supply answer and the court cant ascertain congress meant to resolve it. Inng that circumstance its sensible for congress to give the issue to an agency when it is charged with administering the statute a necessity is going to fill the gap along the way and congress could legitimately want the agency to draw on its policymaking expertise in figure of the right wa to fill the gap. What you say to mr. Martinez who says we can characterize that as question of law because the court was involved in step one i ming the determination, and so it seems a little odd i think i took this away from his presentation, to suddenly save when were in a stepo gap filling world now going to call it a policy qstion as opposed to illegal. I tnk you can so characterize as a legal question while recognizing that in the circumstance to bar jusce kagans words for the law has run out and congress has actually spoken to the issue, the court if the resolvehat issue is going to hav to draw on a set of considetions to inform its judgment. I wouldnt call itt policymakig what it means the courtant suggest the answer it is giving is dictated o the precise issue by congress becau by definition we are in a rubber congress didnt speak to it. The court will have to take a narrow range of circumstances things like overarching statutory objectives to try to fill in the gap. Wh congress has left the gap in charge the Expert Agency with administration role, congress could have every expectation, and chevron says congress has expectation, that the agency will fill the gap in the courts were respected within the bounds of reasonableness. Generalat prelogar, most scholars of statutory interpretation consider chevron to be an interpretive canon, much like clear statement rules, rule of lenity, judicially created. Do you see chevron that way and if so is it different in kind . I think it is different. I dont conceive it as a cannon. It is fundamentally rooted in kind of setting to ground rules for how allll three bnches of the government operating togeer. I what i understand the cou to been doing in chevr is recognizing there are legitate reasons why congress cannot answer every question itself and what people want to go handinhandith an agency by charginghat agency with administering thest statute. The role of the court to give effect to that. Its not just an ierpretive canon but rather it really is gunned in the separation of powers. So is it dependent on on a judgment about what congress would want, one that would have to be empiricly tested . I dont think its getting into congresses subjective intent. I think the primary rationale foth chevron gav with its appraisal that thiss as an overarching matter what congress would have intended when it comes to gap i dont mean to suggest this Means Congress thinks it each and every gap it is great ine moment. Sometimes i think a desk and the clear whe it says regional rates it knows its not self prescre what those rates will be in concreteircumstances. Its freaking gaps andges have to fill it. A circumstance where congress does know its creating at the time someo is going to come in and fill it in. s either going to be the agen or its going to be the Court Without deference. I think the court uprightly recognize congress would want for the agency to do. This goes back to t question of wha is the trigger of ambiguity that justice gorsh was asking you. Think about a concrete example like pulsipher which it United States is on on the other sie pending before the court turning on what and joins together. We think that what isr. Clea. Its out there. Lets put aside the question of whether the dartment of justice and ecutive can get deference, re that issue from the picture. Is that the kind of question, judges, very smart vy reasonable judges reaed Different Solutions about what that word in the statute met. Is thathe kind of question then thinking about brand x saint doesnt he to be the best just have to be a plausible reasonable one. Is that the kind of statutory questions of the trigger ambiguity and step two dierent . Its hard to speak in generaliti about this. I am struggling because the court has recognized the department of justice does not get deree in the criminal context with respect to that particular issue. But i gss what i would say to try to address the overarching question ishat i think its going to be a specific exercise in every case and i cant say heres the formula i can give you to know when to statutory interpretation exercise at step one runs out a the court should feel like, i dt have an answer, congress didnt supply one and when not. I tnk its going to be based on the statury thing. The court should make it a three in green taking on all the relevant aspects of interpretation that c bear on meeting andnd show coness did resolve it. That is the role of the court and its the role of the court likewise to enforce congresses directions. Putting aside the government position and pulsifer,ay maybe thats an unfair qstn as to but that kind of question you think would be the kind of question that cld, lets take it outside of what is the word and mean. A qstion of statutory structure, the placement of a, the kind of thing, that is a kind of question that depends on the circumstae could trigger step two different . It conceivably could. I want to open and acknowledge the court is tt there are typesf statutory questions that dont fit within the chevron framework because there are statute specific reasons to think congress was in givin this question to the agency. I think the major questions doctrine is a species of that. The court said this is an centra agency ton do. In the mine run ce yes, and to the extent youre saying it feels odd for it to depend on comm in the context congress, it is not the antiquity of the cap recognizes the agency is going to have to come up with an answer as part of implementing except about at Times Congress doesnt intentionally ambiguity of the gap. Its limits of foright. So think a court ultimately its ableou to ascertain that although its not perfectly clear in the statute you configure what congress intended, give effect to that, thats step one. At least congrs knows it is going to unintentionly create ambiguity. Apps, cheon is a stable background. Its bn over 40 years years. This court acknowledged that congress legislates against the background of that rule and so it knowsha with anything its doing its penitential that will trigger deference. Can ask youou about the phrae long runs out . On what you think about that would be if youad the same statutory interpretation go ahead and finish, sure. Same statutory interpretation issue in i a nonagency case, could the court decide it . If the answer is yes, the court could decide it,n thenhe law snt run out so, therefore, you could ask yourself the question in an agency case. If this wereonagency case would become to answer on this place . If so you dont go to step two. Whats wrong with that . If thats not correc because donthink youre going to agree with that, how would you define when thert law runs out short of that which i think is a problem as you said hard to speak in generalities about this. Thats the problem. Yes. You predicted myye answer. I dont agree its own in a circumstance wherehe statute would be incapable o the court issuing a decision at the end of the day. If the case comes to the court and it has to resol it, its would have to do its level bt. What iru meant by the longrunng at is if the court has walked throh all of the tools of construction and interpretation and doesnthink congress directlypoke to this issue, congress itself did resolve it, then the kinds of tools the court is going to have to use will be ones that sound in things like the overarching statutory objectives tt congress revealed as part of its plan. A chevron circumstance, the insight of the Court Opinion was that the court doesntave to go on and supply the answe in the best way to understand congress have n resolve it itself was to make therimary decisionmaker or the person with the primary role in the first instance to be agency. Tnk you,ouel. Justice thomas, anything further . Just a couple questions. You said tha in an exchange with justice sotayor and the that congress could require some deference when he came to questions of statutory interpretation. In 706, the reviewing court shall decide allal relevant questions of law, interpret constitutional and statutory provisions, et cetera. Could Congress Also requires deference on the part of the court with respect to constitutional issues . So i think that would raise distinct issues in light of the different history that woulde in play in that kind of hypothetical. Thes not been a longstanding history o courts deferring to agencieshen it comes to interpreting the nstitution so that could be a uniq aicles for interest atak stake. The history in precisely the opposite direction when he comes to statutory interpretation where agencies a charged with administering it because as we tried to explain chevron was not anci innovation, it was not something new. These priips going back to the vyounding years of the republic. They are reflected inn things like mandamus practice were virtually all executive actions for the first 100 years of our nations history was reviewed deferentiallyndontinued and long flight of cases from this urt recognizing specifically and a circumstance when you have the executive admin with statute, congress could expect for those delegations to be respected. Ihink mandamus is a little bit different and the other extraordinary writs in that you had quite a high hdle before they became applicable. But back to you, we normally say that this Court Reviews question of law de novo, and that inclustatutory and constitutional. I would you distinguish that normal practice from what youre saying . I thi its more nuanced thanua that. I certainly take the point that the Court Reviewsany legal questions the noble but thats not invariably the case. There can be issues that arise under distinct statute that set forth more deferential standards of review. Aedpa isnt a good example of that. There could be circumstances li mandamusith the nature of the action itself dictates review and i dont thinkt wouldor be accurate to say as uniform across the board matter the noble is a standard that always and eventually applies that a consistent with cases that were static and chevron ing back to the early 1800s, things like edwards versus darby with the court itself recognize and ofight of context we have ambiguy in particular angevin expert Agency Charged with administering the statute, deference can be warranted. Thank you. Justice alito . Can you provi a concise definition of wha ambiguity means in this context . Ambiguity exists when the court has exhausted the tools of interpretation and hasnt been able to arrive at confidence theres a right answer thatt congress spoke to the issue. As Justice Kavanaugh was recent question presented, in cases dont involve a agency, we never say we have exhsted all of our tools of interpretation and we jt cant figure out what this means. So that would seem to suggest you never geto step two. With the relevant question of step one is whether congress is, in fact, resolving it or delegating to the agency. I agree in a circumstance where you dont haven agency the court can insad the backup option in the situation would agency would otherwise be available is the court has to do it but i dont think that undermines the very real on the ground possibility that congress is legislating a meeting to give the agency the gap. Come back to the question of a definition of ambiguity. What her juicy the first time was its when we use all our tools and we cant figure out what it needs, then its ambiguous. Want to provide an alternative definition . May be the best way to try to clarify what the definition im trying to give is to use an example of Something Like a statutory term le reasonable. I really would want like a la definition so all the course that have to apply the regime to advocate will be able to apply in the many Different Cases that come before them. The court gave this definition in kisor five years ago and think a threat definition to use you as well. What is a . And cortez usel or exhausted the tools of interpration and as of late that it reveals up ght answer. In that circumstance chevron said the right way to think about that statute you are running into the problem we never doth that i don agency. Because in those cases i think you got to provide a different definition. Widely heard you say at a couple of times during your argument was its when we cant figure out, and we cant figure out what congress intended. Is that what you mean to say . That is inquiry chevron prescribes, at this is drawn from footnote nine which is another formulation of this, use the tools of interpretation t see if the reveal what you mean by what congress intended . Do you mean to say you get to step two whenever we dont think that a majority of the house and a majority of the senate had an intent on the specific question that is before the court . Then you would alway get to step two. No. I dont think its about individual legislato intent. The court and chevron just the word congrs which are looking at the statute and what the statute reveals about whether its resolving an issue or not. Thank you. Ustice sotomayor . There hasnt been much discussion on why this is entitled to stare decisis consideration. Therebeen an argument by petitioners that its not really holding of the case, is a meth only and weve set in the past andts a method that lower courts have to use subject to change in, change we can make without considering stare decisis. So could you address that argument . Yes. I think petitioners have pointed to two relevant typ of cases that they suggest just been stare decisis is apply here. First they say the court has sometimes change the interpretive tools. My dependent greater favorite these with some justices and megaphone ooffavor later. I dont think those provide a parallel because the court is never dislled those kinds of interpretive tools into a governing framework. For example, dictated to lower courts you should be applying legislative history in all cases. I dont think it has the same ki of roots in the type of bindings governing framework that chevron has which has function in quite a different way respect to how you understa and to prevent congresses directives. The secon disappointed to is pearsonhich held in the context of the rule that that s entitled to we can stare decisis. The court saidhat is entirely a rule integral to judicia management about howow courts decide the process. That i would looking would beces and it foolish to occur congress to step inth to fix it. I think the considerations run in precisely the oppit direction you because chevron i not just the binding framework about how court conduct a business. It als gives notice to the legiature about how its statutes wouldeonstrued. If the court got this wng when chevron was decided in the legiative intent, congress is there at c the ready and is perhaps the best part or institution in government to be able to correct it and say going for what it wants the ground rules to be. The finalhi i would say i that these are precisely the nds of considerations the court took indic account in kisor and applying the stronst form of stare decisis to auer deference. My friends have o largely ignord e analysis on this. The majority of the court where the c step in, these of deference decisions are balls that evolved into congss courts and our big reliance interest at stake because there are dozens in the case, here thousands, decisns that could stand to be displaced and create chaos and chevron is overruled. I think from a stare decisis perspective that pcent counts as president , to. You answered the reliance quesonecause one of the arguments on the other side is no one, wh the first argument, the court has in the blood chevron in how manyears, and so nobody should have legitimate reliance interest. And the second argument against reliances that no one should have reliance on the wrong interpretation, basically. Yes. And i think those kinds of arguments are inconsistent with kisor and also inconsistent with what we know about what happens in the real wld the agencyen regulations that a bit on theooks for decades. People makenv investment decisis he basis of that. Pele that decide what contracts in or two on theasis of that. States in cooperative federalism ogms have designed and invested resources into their share ofhat program. All that could behrn into disarray and that they can be subject to a new challenge on the basis that regulation was upheld answering the wrong question, applicant whether it conflicts with some purportedly better interpretation of the statute. Thank you. Justice kagan . Theres been a fair bit of talk about h because you dont have ath formula for saying when theres a gap or ambigty so that you go to step two or because judges may hav different tendencies which might be temperamental as much as anything else, to find ambiguity, because of that is going to be some variability. Its hardd to argue there will e some variability, but could you hetalk about the variability of the alternative scenario pgh yes and this ismportant point to focus on because as i find a say in the World Without chevron is that is so congress is always going to see clearly and will not leave gaps or ambiguities jenga and the duties were you apply t tools and that in your left with no certainty. And a circumstance in a World Without chevron whatha we will e is what Justice Alito was suggesting, the courts what to go ono and try t answer the question but theree are 800 jut a court judges around theation and its fairr to say it will likely have different takes about what to do in the circumstance and what to give greater weight to and how to ultimately fill the gap and administering the statute. Thats going to create problems for a couple of different reasons. Ea to go back to jtice alitos earlier question, those differences were part of the impetus for chevron because those were looking awfully ideological nature come awfully partisan in nature. Chevron all the empirical evidence suggests dampens that kind of Ideological Division between courts thats right. Theres good empirical evinc to support judges have an easy time reaching, gnt under the chro framework and elyse identified when they can agree congress did not itself resolve an issue, then they do when you ve to boldly go on and try to figure out what theyre going to say is theotm line of the best way to put the state into operation. That is rooted in chevron and it reflects thi uniformity concern, one of the basic justificio for chevron and one of thehe reasons why this inference of legislative intentn provide that kind of unifo rule for the nation subject to the ground rules of course the juju revw under chevron. The alternative world whe theres a chevron is there will open up wide disputes among the lower courts may be on the mine run statutory interpretation questions and mplex programs, things like medicare and medicaid. I think it could mean regulated parties are subject to different rusnto theco parts of the country. You lose the uniformity value and it diminishes the force of the political accountability value. Congress would have good reason to think agencies should do this in court she respected within the bounds of reasonableness. Thank you. Justice gorsuch . You agree that courts under the apa after a few questions of involving the constitution to novant . Yes, i think there might be certain circumstances respect to certain provisions were a more deferential standards apply. I i agree they don defer to agencies. And you agree that eewhere in the law when posed with questions ofla law, courts reviw ose the noble, generally speaking . I think in manyy contexts its a noble. Sorely not in all contexts. The examples you w ge were aedpa and mandamus come right . Yes, i think those are good examples of situations where the specifications of a standard of review thats morede deferentia. I wonder whether those have more to do with remedies . In the mandamus case a court should say oran c say what the law is. It just cant provi relief unless its conviction about the statute meaning i sufficiently clear. Same thing in aedpa, that we require a heightened standard before relie is granted. Same thing in sovereign immunity context. When we think the statute says the government is liable but we impose a higheref standard befoe we grant access to the fisc. I acknowledge i think many of those doctrines do turn on limitations built into the writ limitations on remedies. I dont think we write to say in the mandamus kate the courts do you thinknally let me put aside what the executivefficer did and interpret the statute to s and i think with the right interest to the right answer is executive was violating the law but not clued outside the scope of executive authority. What he could do so if there are two steps to that analysis. One and resolve it and say, a, its not clear, so i cant provide a redy. General prelogar but i think, for petitioners to succeed on their article iii argument, they have to show not just that you can review de novo, but you have to. Justice gorsuch im not asking about article iii. Im just asking about the apa and what it means. General prelogar yeah. So sorry if i minderstood. I do think, though, that what the history shows at the very least is the has been no fundamental rule tt you have to review all questions and thats where the history of the apa matters. Thisourt recognized apa was a restatement of Judicial Practice when it came to review at thetatutory interpretations as wve explained there are reall deep roots here, a long line of precedent in history showing the courts will sometimes defer. On those its absolutely true you do pnt out cases like edwards lessee, others where this court gave respect to the federal governments contemporaneous and uniform interpretation of the statute and thats exactly what skmore does, it gives respect to contemporaneous and unirm interpretations, but■ chevron doesnt matter whether its contemporaneous and uniform, it can be out of the blue and still gets deference, right . I disagree with the premise that im reading from th, but all right. There are dozens of them. I acknowledge they use varying formations and maybe you could use some with skidmore i have a lot that look like chevron. Lets say you dont, then what . Iave to dispute the premise look at nlrb versus first publications these are cases in the 1940s that were leading cases in put aside what happened in the 40s, back and forth and wound out in skidmore. At the very lea Justice Gorsuch you wan to say its a very ol thing and old cases dont look anything like chevron, they look a lot le skidmore. I disagree with it, some say you should give it controlling wait theyre not saying pay atteion to if it has a chance of persuading. If its contemporaneous. No, know the all of them go to that fact. And i would add as well i have another question. Chevron, you emphasize is value neutral and sometimes Favor Industries that are times regulate and sometimes face the governmentnd i can see that in scenarios where we talk about the flipflop of administrations,nd new people leave come in a replace others and theres a lot of movement from industry in and out of those agencies. I think George Stigler talked about regulaty capture and i dont worry in a chevron regime about those people. They can take care of themlves theres political accounting, fine. The cases i saw routinelyn the courts of appeals and niggs at some of them, those that have no power to influence agencies w will never capture them and whose interest are not the sorts of things that people vote generally speaking and there, chevron is almost always, i didnt see where chevron wound up benefitting those kinds of peoples and it seems to me its arguable and certaiy the other side makes this powerfulfully, that chevron has a disparate impact on diffent classes of person. And i wanted to give you a chance to respo of that. Re, i have a couple of different reactions to that. One is, of course, i acknowledgehat the way that chevron operates it gives effect to Agency Interpretation even in circumstances wre that might be oppositional and some of the categories youre idenfying. If it does at, its in accordance with congress and wishes, and even my friend greens there are certain tt congress and gaps to fill with the broad and ka capacious, i dont think theres a flaw in giving the statute the record. Lets open the possibility if the judge left to his own vices would say the fairest ruling is in favor of the immigrant, its in favor of the veteran, its in favor of the Social Security disability applican but because of a fictionalized statement what Congress Wanted when it didnt think about the problem, the government always wins. Well, i think there are a couple of different ways to come at that concer one is to emphasize again if its not just in the exercise of discretion, the court would think is fairer and fill the gap that way and theourt thinks actually the reason its fairer because i have a sense that congress spoke to this, i can determine it based on the tools that, step one. That doesnt work because youve said it doesnt matte whether Congress Actually thought about it. Yes, so there are many instances where congress didnt think about it and in every one of those, chevr is exploited against the individual, and in favor of the government. I dont think its fair to treat that as exploitation. Congress has been aware of the rules here. It could change chevron at any time. It could displace it if it thinks is being used in the circumstancewhe its not warranted. Justice cavanaugh . A few questions, ihink the other sides argument suggests that the basic analytical concern at the heart of chevron is that it treats law a policy. And that thats antithetical to our constitutional structure and the rule of law. Andhats why the footnote nine question is so important, i think. Because i you use the traditional tools in a nonagency case and got an answer,hat suggests its a statutory interpretation question and your saying, no, that y can stop short of that in an agency cas in some difficulty to fine point and then treat the rest oth case as a policy call for the executive branch. And thats treating what was a law question i a nonagency case as a policy question in an agency case, and its the same question. So its transforming law into policy. And thats very difficult, i think, to accept if you accept the idea that a premise of the rule of law is that the executive and the judiciary cant just treat the laws passed by congress is mere expressions of policy that they can change. Respond to that. So, i hear that concern and i think theay to address that concern is to reinforce the principle in footnote 9. We agree thats an important principle. The extent will are agencies out there and courts out there effectively not giving the effecto congress own enactment, a court can police that and put the footnolt 9 principle, with a rigous analysis the court gave in kaiser. And i think its what i undetand chevron to be doing is telling instance, figure out congress spo to this issue and if so implement it, but holdpen the possibility that congress didt speak to the issue and inhat context, if congress has given the agency this primary criticay Important Role to administer the statute that shld merit within the bounds of what congress set. In a nonagency case you will not have it to rely on, but thinking that cgress didnt precisely speak to this issue, whats the best to figure out how congress would resolve it or most consistent with the overall statutory theme here, congress would, in fact, know at courts are going to have to do that in an agency. And following theerms of the statute. I think would be a fiction to suggest what the court is doing is following congresss decks police sit directions on the matter at war withenuine ambiguity times. I think its important to distinguish and i tnk you would distinguish statutory with legal questions and interetation and there are tons of statutes to go back to the ai example that explicitly conifer broad policy discrion on agencies. Yes. A thats where state farm kicks in and thats where weve always been of deferential. One statute might say no one can catch more than 50 fish today. The next statute may say the agency can define a reasonable number of fish caught in a that second statute is conferring broadly and you agree those are distinct. I think that one is a broader bestowal. I you think about the examples. So you agree congress can legislate broad policy discretion to an agency, can grant broad policy discretion explicly through words, reasonle, appropriate. Absolutely, i think the same question what does the court do thout the agency sometime in those contexts if they borrow from the reasonable example, reasonable links and there, but my friend to concede that that mning to create a zone of discretion. Thats the state farm question as i would see it. Two more quesons, i want to make se the concerns of the other se are aired and have a chance to respond. Some discussion of this would be taking power from the executive ap gnting to the judiciary. A different conception of this chevron that is taking power from congress and shifted to the executive and allow the executive in essence to unilaterally make policy without congress and one of the concerns historically from the beginning of thi country was unchecked executive power and you hear president s criticized all the time whether its roosevelt, reagan, bush, obama, criticized for exercising unchecked wer. So, the concern is about chevron and its ushering in aggressivessertions of unilateral executive power and thats theoncern that i think the other side has. Not about theudiciary taking power, buthe judiciary having taken from congress andhifted it to the executive contrary to our usual concern. So i disagree with their characterization that chevron permits the executive to claim por away from coness and congress a powerless to do anything about that. You know, in the first instance, of course, congress has to make the delegation to the agency and the court can enforce that. And the court knows to speak when it wants to bestow discretion and speak plainly to rein in an issue itself a in any context tre have been particular statutory themes and dont apply it, defer to this agency or another agency, coress is in the drivers seat. This is a technical point, most would veto getting rid of chevron difference and so, but thats a technical point. Last question which is there was talk about democratically elected political branches, but i just want your agreement on something i think youll agree on is the role of the judiciary historically under the constituti to police the line between the legislature and the executive to make sure that the executive is not operating as a king, not operating outside the bounds of the authority granted tohem by the legislature. Do you agree thats a proper judicial role, i wou sum . I of course agree with that, but i think that chevron is consistent with that, the court polices by step one, congress own choices are put into operation and further polices the exetive at step two, in kaiser, reasonableness is a test thathey can fail and making sure they dont transgress any outer bound line that congress gets. Justice barret justice jackson. Doesnt the court not only police the other branches, but itself as well . And by that i mean, to the te that the other side raises the concern that, you know, theyre treating law as li, isnt there a concern that policy questions might be treated as law and chevron is helping to police that determination in its own rerd . Yes, i think to look at this as a degation deceptive practices as defined by the secretary. If there was a statute tt said that, the court didnt come in anday the secretary said it was a deceptive practice, but i think that actually theres a better way to think about the deceptive an give any weight to. Congress directed what you should do at the court is Pay Attention to what the secretary did becse the secretary was given that role in administration. Obviously, chevron applied to circumstances where that delegaon is not quites explicit, but meant to identify the same identity with a why answer what the other side says, which is ally make congress say that . In other words, you know, it seems to me their argument is en were policing this lin between what is law and wt is policy, we should reqre congress to say the secretary gets to make this decision and when it doesnt, then i guess we look at it as a legal question that the courts can decide so i think that that argument would have moreerit if there wasnt so much water under the bridge and the fact that the court would explain when i would find this degation 40 years ago, petitioners talk about Reliance Industry here a try to diminish them. They dont talk about congresss own reliance and if they say they switch the default and mak congress say discretion is infeared, would be to congresss own reasonable expectations to grafting and doesnt account for the language that congress issing is infused with discreti. Much reasonable, necessary, those are terms that are concrete settings for the details and you cant have the background. Just Something Congress say it coul function this that kind of wld and congress has said somethg very important here, which is that the agency shall administer t statute with regulation or adjudications that have the force of law. Thats part of the statute as well. And you think that really rries a lot ments ive heard you use that and focus on tt many times when youre talking about a situation in which deference is or should be required. Exactly, so congress in eac and every statute which this is going to be applicable and deference could be available, is going to have that judgment to give the agency at that responsibility and role in implementing the statute. And let me just ask you about whether or not, goingo the issue of ambuity which has comup many times, wheth or not the court could clarify when there is a gap or ambiguity that allows for or requires the court to to step two . And what im thinking about is what i mentioned previously with your friend on the other scholars have aually identified different kinds of ambiguity. So i one snare yes we have a statute that uses a broad term and that term encompasses a range of reasonable meanings. There arehree or four differentays that could be reasonably, youknow, the meaning of stationary source for example. But then, theres also the kind of ambiguity in which a statute can mean only onething, either a or b, perhaps because of the way that the language, you know, is put forward in the statute, its just unclear whether it means a or b. I take these scholars to mean that really, i the former scenario is the one in which we have a situation, you know, where chevron deference would be required and could t courts say Something Like that . And let me just clarify. I mean, i look at i as thats reducing to a policy choice. Ce were in the world ambiit with a number of reasonable alternatives in terms of making this determination, then, its goi to be a policy choice as to which one congress, Congress Wanted in some sense or which entity Congress Wanted to make that decision so, i think that certainlyhis court could provide more guidance to lower courts and in particular identify the types of statutory issues that can connote discretion. There are going to be easy calls and situations where there might be possible ways to implement thathere really is a zone of discretion. My only concern going down the road theres some fundamental difference there are terms only two possible ways to be implemented, is thathere are kind of an endless number of statutes out there and all kinds of varietities and might lose sight of certain context whe congress was comfortable with either way of implementing that parcular determine, even if there arenly two possibilities and did, in fact, delegate thatssue to the agency. So i wouldnt want some kind o bright line rule to diminish the courts ability to recognize and implement that ki of delegation. Thank you. Thank you. Martinez, rebuttal . Thank yo your honor. Just a few pnts in rebuttal. First all, i think its very important to be cle about what chevron does, it takes the power to say that the law, what the law means. Say that the law means x a it takes that power away from courts and gives it to agencies and it tn forces agencies, foes courts to adjudicate the rights of individual litigants that are i front of them based on a versi of the law that the courts tmselves do not believe is coect. Do notelieve its the best interpretation. Ither congress nor this court can create a doctrine or a statute effectuat that. My friend on th other side said the purpose of chevron is to set the ground rules on how th different branches of government shod operate, with respect, i think the constitution sets those gund rules and makes clear that the judicial power, the pow to say what the law is, interpret the law rests with courts not with agencies and cerinly not with congress either and i thinkhe apa reinforces that. The solicitor general tried to rescue a reconceptualized chevron i think b taking issue with our argumt that under chevron, if the court thinks the best interpretation is x, it sometimes is going to have to apply y because the agency told it to. I think i you look at footnote 11 of chevron, thats exactly what chevron says. It tells the court it applied interpretation that the court itself wld not choose. In other words, interpretation of the court itself ds not think is best. The sicitor general also describes chevron as applying and the formulation i heard a lo today. It applies that the agency didnt resolve the question, which is a kind of innocuous phrasing, what is really meant by that is that it applies in cases of ambiguity and understood as a situation where reasonable people can disagree about what the law means and that broadens the scope of ference. Ambiguities are all or the place and courts resolve all the time. Thats cor to the interpretive function, theres no reason this think because congress is accidentally left ambiguity in th statute, what its really ying to do is have tha ambiguity resolvedy policy decisions made by an agency. I just asked about the justificion for chevron and whether the intent justification is valid and i took my friend to essentially concede that the delegation is fictiona nonetheless to say we apply it anyway as a presumption. I dont think that you canet the mileage that you need to get out of the intential delegation theory after youve conceded that is fictional. The only reason that it has ight is if its what Congress Wanted it to do. They didnt want to delegate it, then the doctrine reconceptualiing based on t fictional premise. Theres no reason that Congress Wanted to have policy authority to agency any ambiguity byny statute by the agency. I think the government solution to that proem is to impose a clear statement requirement on congress, hey, you canust legislate more clearly. But biguiies are unintentional. With respect to the history, your honor, i think the mandamus precedence makes clear themselveshat theyre talking abou remedies in the cases like decatur, and dunlap expressly say that if were interpreting these legal issues in a different context, where we werent limited to the mits on mandamus remedies with respect to the apa, the solicitor general is looking at texts that requires courts to interpret statutory provisions and is saying tha that rule temperatures statutory provisio is consistent with chevron which she describes i her brief as allocating interpretive t authority. Agencies get authority not courts. Chevron is not consistentith the apa. Finally, with respect to the course correction idea or md it, dont end it approach i would respectfully sgest that youve tried to mend this, youve tried to course correct over and over again overhe years and thats why we have a chevron doctrine overden with a lot of bells and whistles, its hard to apply in practice. I think in theeal world if youry to mend it without endi it, whats going to happen youre going to put a lot of pressure on the doctrines and people coming to ask you for a new caveat, a new threshold test. We would respectfully sugst that the fundamental problem is chevron itself. Interpretive authority belongs to the court. If we have the best view of the statute, we should win this case. Thank you, your honors. Thank you, counsels. The case is submitted. This week, watch cspans campaign 2024 coverage as were on the ground in New Hampshire with president ial candidates in the final week of campaigning before the first in the nation primary. Hear the candidates closing arguments and experience what its like on the campaign trail. Watch on the cspan network, free mobile app or online cspan. Com . Cspan, your unfiltered view of politics. 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