In case 22451, local right enterprise versus raimondo. Mr. Chief justice, may it please the court, this case commercial fishing his heart. Space on board the vehicle vessels are tight and margins are tighter still. Therefore, for my client having to carry federal observers on board is a burden, but having to pay their salaries is a crippling blow. Congress recognizes much by strictly limiting the circumstances in which domestic Fishing Vessels can be battle with monitoring costs and capping them at 2 3 of the value of the catch. The agency showed no such restraint requiring monitoring of 50 of the trips and a cause of 20 of their annual returns. Nonetheless the court deferred to the agency because it blew view the statue assignment. There is no justification for giving the tide to the government. Both the apa and constitution of what his principles call for de novo review asking only what is the best reading of the statute. Asking instead is the statue ambiguous is fundamentally misguided. The whole point was to bring clarity and not to identify ambiguity. The government defends this practice not is the best ring of the apa by invoking starter sizes. That is doubly problematic. The issue is only chevrons methodology and title to reduce the effect. We have no beef with the chevron Clean Air Act holding and we cannot take issue with apa holding because it failed to mention that statue. Second, all of the factors point in favor of over rudy overruling the methodology, unworkable as its threshold is hopelessly ambiguous. It is also a reliance destroying doctrine, because it is a taste agency flipflopping. The reality here is the chevron to step has to go and should be replaced with only one question, what is the best reading of the statue . I welcome the course questions. Youve heard the government for the generals argument with the use of mandamus mandamus as a basis for deference. Could you comment on that . My understanding of mandamus is the duty has to be clear before it actually lies. I would like your comment on that. Absolutely, Justice Thomas. I think mandamus is a critical recognition of the fact that congress can remedy the availabilities in particular circumstances. That is the right way to understand the mandamus standard. That is quite different from telling the court they are to engage in as congress clearly did. But then say there is a point in which you cannot actually give us the best answer because you are deferring. I think it is important from a separation of powers purpose to understand it is not as remedies, there is an accountability difference. I suppose congress could decide we are going to go back to a world where the only review of action is mandamus. Congress would then be fully responsible for that highly unpopular decision. That is the difference, the fundamental difference from a separation of powers stamp between a limitation on remedy and specifically telling the court in the apa specifically you have the Interpretive Authority over statues no less than constitutional issues, but then overlaying a doctrine that says what we are doing is interpretation. That is the critical thing about the interchange between footnote 9 and footnote 11. Footnote 9 tells you as clearly as i can what you are doing a statutory interpretation. In footnote 11 it says that a certain point you stop doing statutory interpretation, even though you think there is a better answer. You refer to a Different Branch of government. It is not the branch the framers gave the interpretive authory two. It is the branch the framers gave the implementing authority. I think from that standpoint chevron is a fundamental and egregiously wrong decision that gets it wrong on the basis of separation of powers. There is such a contention in this. Interpretive Authority Means discretion. It means there are multiple meetings that you can take from something and someone has to choose among those meetings. It seems like most people agree if the statue uses reasonable that congress is delegating the definition of reasonable to the agency. The agency is deciding what is reasonable within some outer limits either set within the statue or within the law. The point is, it is great rhetoric, mr. Clement, but we do delegate. We have recognized allegations to agencies from the beginning of the founding of interpretation. I am at a loss to understand where the argument comes from. I think there is a difference between recognizing discretion and recognizing delegation. There are certain statutory terms as you yourself went out that properly construed by the courts definitively would give the agency a realm of discretion in which to operate. There are other terms in which it is really a binary question. The fundamental feeling of chevron is it doesnt do a good job of distinguishing between the two. The best example is brand ex. Broadband communications are either an Information Service or telecommunications service. It might be hard to figure out which one, but there cannot be one of the tuesday mx on a thursday. Wait a minute, it may be binary to you. I do know with the development of technology and with the development of how that is implemented in terms of transmission and the internet that over time that is going to change. The same issue even in the case that we are in right now, there were two areas the Congress Look that and you that reviewed for easy travel for obvious reasons. There is very little outside once those ships leave that the u. S. Government can do to them. The other, i think it was the North Pacific area, but the point is that doesnt mean that similar problems didnt arise later and that the broad words giving the secretary the power to monitor and implement measures to ensure that his conservation goals were being followed wasnt given to the agency. Those are the facts and what we should be looking at in my judgment. Is this measure commensurate with what drove a similar measure, not identical, in the other two examples. The agency should have first crack at that. If they are not similar the court will look and say your decision was arbitrary and capricious. If they are similar we might say okay, this is all right. I dont know the answer. We really havent dug into that. It is just a point that i am making, which is things change on the ground. A definition you give today may not hold up to new facts. Backs do change on the ground. That is probably probable chevron and brand x. If there is a difficulty in classifying broadband today, the difficult to get the statue was last passed in 1996. Going out of 2023 broadband is a 1996 Information Service or 1996 Telecommunications Services the granddaddy of a problem. It does have a binary answer. Bringing it home to the statue, what i would say is if you do the chevron ambiguity test if i never like a pro it in the statue or maybe for some people carry. I think that one is pretty clear. To say that word is ambiguous i want to go to step two. But if you look at the statue as a whole. If you look at it the way you would in any other context, i think what you would see if this is a classic case, i forget the exact phrase. The point is you have a situation that in the worst fishery in the Country Congress that you may not not musthave monitors paid for by the industry. But if you do that you must have the fee at 2 3 of the value of the catch. A congress that did that with the most well healed fishery in the nation, i do nothing possibly convey the authority to the agency to say with a much different fishery in the atlantic where its Small Business people, where going to let you do effectively the same thing, but we are going to let you do it to the turn terms of 20 of their annual returns. If you strip away chevron this is a fairly easy case where you just make congress had this question in mind in one place or actually replaces the be specific. With every domestic fishery they only gave it in two instances. In both they said it can be no more than 2 or 3 . If you are arguing the statue is not ambiguous on that question. If i am arguing the best reading of the statute is that my client wins. If i have to, i would it seems were not contemplating the result. That may be right. You are saying this is about a case where there could be a number of interpretations. I dont think that is coming to grips with the chevron question. I hope it is. What i would say is exactly what i heard Justice Kavanaugh say, which is i do not think there is a different rule in cases where agency is a party or if agency is not. In both cases you cannot get to a certain point and say this is hard. I think the law has run out. In both cases you are supposed to take it all the way to coming up with your best answer. You were just saying the principal answers the question. If it answers the question, i guess i dont understand how you even get to the chevron issue. Chevron that one you would give the same in the. Maybe you would, but nobody knows where step two against her ends. I mean i suppose now taking the hits from kaiser, which is about something not chevron usa of course you would apply the canons of statuty construction before you get to step two. The point is in every other case you apply those cannons. If youre not sure about the answer you dust off the back and see if there are some other cannons. Because you have no other option, what chevron is it is a recognition that in certain cases you apply all those tools and the conclusion you come up with is congress hasnt spoken to this issue. If you had no other option, you are a court and there is a case before you, you try as hard as you can. Even though you know you are basically on your own. When there is an agency what chevron says is now there are two possible decisionmakers. There is the agency and there is the court. What we think is that congress would have preferred the agency to resolve this question. When congressional direction cannot be found, because of the agencys expertise. Because of the agencys experience, because the agency understands how this question fits within the statutory scheme. It is not a question that the court could not do it. It is a question of once congressional direction cannot be found, who does Congress Want to do it . Justice kagan , i do not agree with you that the law runs out, even though there is an agency there. I would give you this, if i did i would say at that point lets give the tie to the citizen. Lets not give the tie to the agency. I dont think is what we would do. You will give the tie to the citizen and i to the agency. Chevron is about what Congress Want. You can call it fictional all you want, and we have lots of presumptions that operate with respect to statutory interpretation. This is just one of them. It is just saying congress understands as well as anybody different institutionals comparative attributes and virtues. It does not want courts making, i mean it is law, but it is policy laden judgments. Once congress cannot find direction. If we want to talk about what Congress Wants we probably should advert to the fact that we do have an amicus briefing in this case from the house. It does not want chevron. It has total control over chevron. It can reverse it tomorrow with respect to any titular statute and with respect to statue generally and it hasnt. For 40 years it has exceeded except for super rare cases. It has basically said this is the background rule. It gives us a default rule from which to write statute. We have except accepted. I am not sure everybody in Congress Wants to overrule chevron. Everybody in congress doesnt want to do everything. It is really can be for some members of congress and not have to tackle on the hard questions and allow for their friends to get them everything they want. Even if congress did it, the president would be to. I think the third problem, even more problematic, if you get back to that fundamental premise of chevron that when there is silence or ambiguity we know the agency wanted to delegated delegate to the agency it is fictional and in a particular way. It assumes ambiguity is always delegation of. But it is not. More often when ambiguity yes, i dont have enough votes in congress to make it clear. I want to leave it ambiguous and that is how we are going to get over the hurdle. We will give it to my friends in the agency and they will take it from here. That is that with the eight a phenomenon we have major problems in society that are not being solved. Instead of doing the hard work of legislation we have to compromise with the other side at the risk of maybe throwing a primary challenger. You rely on a executive branch grant to do what you want. It is not hypothetical. You say we end up in gridlock, which we have now. What i am saying chevron is a big factor contributing. I would think the uniquely 21st century phenomena of cryptocurrency would have been addressed by congress. I certainly wouldve thought that wouldve been true in the wake of the ftx debacle. It hasnt. Why . Because there is an agency head out there who thinks he already has the authority to address this uniquely 21stcentury problem with a couple of statues passed in the 1930s. Hes going to waive his want and say the words investment contracts are ambiguous and that is want to suck all of this into my regulatory orbit, even though when that same person is a professor that this is probably a job for the cfdc. I was just going to say lets assume for the sake of argument that i agree that in 706 congress has spoken to the problem we are not applying a fictional presumption. Congress has told us we want the court to decide questions of law. Solicitor general in the last argument talks about how litigants will be lining up for state cases decided under step two to reopen challenges to the agencys interpretation. What you have to say about the destructive consequences of overruling . I think the solicitor general will be saying the exact opposite if this Court Overrules this decision. What i would say is this court has moved away dramatically from certain methods of interpretation. More dramatically than just we look at legislative History Lesson we used to. Implied causes of action as far as i can tell our dad. That didnt mean that every decision that was decided in the battled days was overruled. That is a little different. Those apply causes of actions, the court was saying this is what the statute means. I do not apply to the cause of action or whatever. This would be different. The court would just be saying it may not be the best, but the agencys interpretation is reasonable. It does not settle in the same way that some of those old implied cause of action cases did. If you dont want there to be disruption all you have to do is make the precise level of generality that you alluded to. I would think in every one of these chevron cases the question is is the agencys interpretation of the statute lawful . If the court has already held yes, i would think that would settle the matter. As i say in a brief, the only reason i have any doubt is because of brand x. Brand x is a huge embarrassment for the government and the governments friend. I looked through the amicus and i counted 13 amicus briefs. Only two sided brand x. It will be nice for that decision to just go away, wouldnt it . Sorry, Justice Thomas. Laugh if that absolutely makes clear this is a reliance destroying doctrine. Frankly if you said that chevron is over and all of those step two cases that were decided are going to have starry sizes affect because of the level of generality point, you will be giving you stability to the law. It will be improving stability. That is an important distinction from kaiser. The kaiser doctrine never had its brand x moment where this court make clear the agency can flip 180 degrees. Indeed in kaiser itself it suggests that the opposite. Here with chevron we know this is a reliance destroying doctrine. Here is another thing to think about in terms of kaiser. As i read the courts decision in addition to the fact that we know it doesnt directly speak to chevron, i also read it as all this at the unit a special justification. I think weve offered special justifications in droves. Special justification beyond the decision. I do not know of a case where you would defer when the relevant decision did not cite the relevant statue at all. This would be a different world if chevron went in and russell with 706 is that despite all textural indication it forecloses review of statute. I suppose i would have to be here making every single starry decisis argument. That is not what chevron did. It did not mention the relevant patch you. I do not want to be seen as running away from the starry decisis factors. I am happy to walk through all of them. I think all of them cut in our favor. The decision is tremendously unworkable. Nobody knows what ambiguity is. Even my learned friend on the other side says there is no formula. That is an elaboration of what the government said the last time, which is nobody knows what ambiguity means. Lets talk about reliance and talk about the brand x problems that are very serious problems. I love the brand x case, brought their regulation provides a perfect example of the flipflop that can happen, but it is not my only example. There are amicus brief to talk about the National Labor of relations were flipflopping on everything. Ask Little Sisters about stability and reliance interest as their fate changes from administration to administration. And then you get to the real world effects on citizens that Justice Gorsuch alluded to. I would like to emphasize its effect on congress. The court was originally doing chevron it was looking only at a comparison between article two and article three. I think you got even that question wrong. It failed to think about the incentives it was giving the article on branch. That is what 40 years of experience has shown us. In 40 years it has shown that it is virtually impossible to legislate a meaningful issues and major questions, if you will. Right now roughly half the people in congress at any given point of want to have their friends in the executive branch. Their choice on a controversial issue is compromised and forges a longterm solution at the cost of maybe getting a primary challenge of orange dad, just call up your buddy who used to be your call staffer in the executive branch now and have him give everything on your wish list, based on a broad statutory term. My friends asked for empirica