Doctrine or keep it. Custice roberts well hear argument first this morning in case 221219, relentless versus the department commerce. Mr. Martinez. Or aument of Roman Martinez on behalf of the petitioners martinez mr. Chief justice, and may it please the court for too long, chevron has distorted the judicialss and undermined statutory interpretation. It should be overror three reasons. First, chevron violates the constitution. Article iii emwe judges to say what the law is. It requires them to interpret federal statutes using their best and iepdent judgment. Chevron undermines that duty. It reallocates ieretive authority from courts to agenciesanit forces courts to adopt inferior agency constructions that aued for political or policy reasons. In so, chevron blocks judges from serving as faithful agents of congress. It mandates judicial bias and enures agency overreach. And by removing key checks o executive power, it threatens individual liber. Chevron also violates the apa. The most straightforwardng of section 706 requires de novo review of legal questions. Congress put constnal and statutory interpretation on equal otg, and it required independent legal judgment as to both. As Justice Scalia wrote, the apas text contemplates that authoritatively resolveill ambiguities in statutes. And,hi, this courts only justification for chevron is the impllegation theory, but that theory is a fiction. Theres no reason tohi that congress intends every ambiguity in every agency statutive agencies an ongoing power to interpret and reint federal law in ways that override itsmeaning. In this ca, e agency misinterpreted the msa to force struggli fhermen to pay up to 20 percent of their annual profs federal agents. The ment says that even if all nine of you agree with us th the agencys construction is worse than ours, you should nonetheless defer to T Construction and uphold their program under chev thats not consistent with the rule of law. If we have the best view of the statute,e should win this case. I welcome the courts questions. Justice thom. Martinez, how much deference is in tension with the judiciaro . Martinez i think its very much in tension, your honor. Justice thomas no. How much wouldt require . I mean, your argument is that chevron deference is problemati but how do we determine how much deference is too much deference . Martinez i think youve certainly crossed the line when you have a rule that says that we going to allocate Interpretive Authority from from article iii courts to an agency. Anwhen when youve got deference that amounts to that, which is what chevron deference is, then i think youve youve crossed the line because what youve r done is Justice Thomas i think what im trying what im asking is, how do we know where the lin is . You w deference. Theres skidmore deference. Martinez sure. Justice thomas we are deferential in fact finding, et cetera. Im just trying to determine whether youre saying that we if itde novo review martinez right. Justice thomas without any presumio or deference, then its problematic. Martinez i i thinkence becomes problematic when it requires a judge to say that the law means x wheny the judge thinks the law means y. I think skidmore deference is not problematiuse it doesnt require that. Skidmore deference essentially says and we would be very comfortable with skidmore thatecse the agency has a has an Important Role to play in e ocess, often the agency has helped draft the statute, th agency has knowledge of the policy context surrounding the statute and itimementation. Of course, courts should pay special ultimately has to bring its expertise to br a way thats persuasive. And if the the court isnt persuasive, if the crthinks that the law means x even tugthe Agency Thinks the w ans y, then the court needs to go with the best interpretation of the statute, just like it does in every other chief Justice Roberts martinez area of statutory or constitutional chief Justice Roberts lets martinez interpretation. Chief Justice Roberts lets suppose the statute says the department of transportation ll set length limits for trucks that are reasonable. Martinez right. Chief Justice Roberts is that a legal question for the court, or is that a policy question for the agency . Martinez i think that chief Justice Roberts its a the the Legal Authority says they g to be reasonable. Thats a term that courts apply inany situations. Martinez i i think that a urt looking at that statute would try to determine thees meaning of the statute, and the best meaning of the statute there would be that that the use of the term real reasonable confers upon the agency disetn to choose among certain policy options. Noth doesnt mean that the agency can just do whatever it was cause there are limits, and the court has to police that mits. Michigan versus epa is a good example. Congress used a broad term like approprteand the question was which is similar to reasonable, in ginthe agency a a range of discretion. But, at the same time, when the agency said, well,e nt have to consider costs in figuring out whether somethg appropriate, the court said no, that, as a legalatr, the best interpretation of the word appropriate in the context of this statute requires the agency to consider costs. Chief Justice Roberts well, what if the statute says that thagency can regulate truck truck length for vehicles that treln interstate commerce and theres a question whether or not interstate commerce the the delegation r interstate commerce is satisfied when particular martinez right. Chief Justice Roberts circumstances are present. Martinez i ihink that that would be a case if youre if the court realled upon to interpret what if the dispute was ouwhether what interstate commerce means, i think that would be a classic legal estion that would be a legal question for the court. And i think it actually highlights because interstate commerce is probably there because of the constitutional limitatio, highlights the fact that, really, the sameul should apply to interpreting constitutional chief Justice Roberts well, i mean martinez provisions as statutes. Chf Justice Roberts you could imagine you could imagine situations where the interstate commee determination is peculiarly factbound, you know, trucks transferring loads and at transfer pois the border. Is that in interstate commerce for each one or no and isnt the policy judgment of the agencyernent in that situation . Martinez i thin ctainly, the policy judgment of the agencys is pertinent in determining sort of the facts because the agency might be on the ground and understand the ctl scenario. But i think theres a n important legal component to that question, that in any other context, like, for example, if you were interpreting th constitution, i think the court would would quite reasonably thinits its own job to interpret the constitutional requirem intstate commerce and would would say would give it its best meaning. And i think Justice Kagan well, let me give you martinez the same approach Justice Kagan a few more examples along the same lines, mr. Martinez. Is n product designed to promote healthy cholesterol levels a dietary supplement or a ug martinez sorry. Can you give that one more tim Justice Kagan a new product degned to promote healthy cholesterol levels, is it a dietary supplement thats a statutory term martinez ok. Justice kagan or aru martinez i i think it would depend on on the the original understanding of the text of that statuten read in context. Justice kagan you you want the martinez and i think thats a legal questionor court. Justice kagan you think that the court should detmi whether this new product is a dietary sulent or a drug without giving deference to the agency, where its t clear from t tt of the statute or from using any traditional methods of statutory interpretation whether, in fact, the new product is a dietary supplement or a drug . Martinez i justice ga you want the courts to decide that . Martinez Justice Kagan, i think with respect to that question or any other ofhe a legal question, i think what the court wod do, there there are going to be hard questions, but i think the court would bring all the traditional tools of construction to bear Justice Kagan they do that martin and would Justice Kagan under chevron. They you know, we have made clear all the traditional tools, you can find an answer, that is the answer. So the court is very rarely in the situation wch youre talking where it thinks the law means x and ineait says y. If it thinks it means x, under chevron, as weve understood it and made clear and rgn it in a little bit over these last few year s supposed to say x. But sometimes law runs out. Sometimethes a gap. Sometimes theres a genuine biity. And i i dont know. In that ca, would rather have people at hhs telling me whether this new product was a dietary supplement or a drug. Martinez so, your honor, i think a couple things. First of all, i dont thin chevron is a doctrine that only applies to tiebreaker 50 50 scenarios. Its never been understood that way. You know, Justice Scalia in hi famous article in 1989 Justice Kagan its not a tiebreaker. There are just some times where you look at a stutand the most honest reading is that theres theres theres a gap there rtez but Justice Kagan because of the limits olauage, because of the limits of our ability to predict the futu. And so who fills that gap . Martinez but i i guess what would sort of push back on is i dont think theres a gap if the court looks at the statute and thinks, hey, this is a really hard case, its a really close statute. Fiftytwo percent likely, i think you know, iav52 percent confidence that x is right Justice Kagan ill give you martinez 48 percent likely Justice Kagan ill give you another one, mr. Martinez. Do t term Power Production im just these are real cas. Martinez right. Justice kagan these are these are prototypical chevron cas. Martinez but juickagan does the term Power Production capacity fer to ac power that is sent out to the electric grid or dc por ats produced by a solar panel . Martinez i think same answer as the first hypothetic. But let me try to let me try to so ogive you a different framework for thinking about this probl. Lets imagine that that statute came to a court before an en had even actedn e first place. What would a court do . Would a court look at the statute atatutory term like that thats a hard presents a hard interpretive question and say wellth is hard, its sort of i think the law has run out and im just not going to be able to decide this. I think the court would go with the best intpration. Justice kagan the the the the court might the court in that case would have to make choice. But, you see, here, the court can say, you know, the option is to listen carefully and to defer if its reasab and if its consistent with everything that we know that congress has said, to defer to people who actually know things about these things martinez but Justice Kagan to you know, to people who understand the way particular questions fit within a broertatutory and regulatory scheme, to people who have understanding of the policies and of e cts that led to this. Ill give you thd example. Martinez can i respond . Justice kagan and this wi b my last one, mr. Martinez, and its going bfairest one because its going to be one you know about, which is chevron. As a stationary source in the clean air act, does it refer to whole plants or to each pollutionemitting device within the plant . Martinez we think that the decision ichron was reflected the best interpretation witmu respect to Justice Gorsuchs mothers epa. We think that that was the best interpretation. But but c iust go back and i think what you described earlier abt stening to the agency and taking into account althose things, our our rule would allow that. Thats idmore. I think the only difference between our rule and d e skid what the skidmore sortf proach and the chevron approach is that after listening to the agencys explanation of all the things that you said, the court isnt persuaded by the agency that the Agency Interpretation is correct, chevron would say you still have to go with the agency. And thats just like a dramatic thg. Justice soto buthy not . Meaning i i think all of the play in disagreement is around the word ambiguity. I know that there have been some earlier cases that suggested if there were two plausiblmeanings, you went with the agency meaning. I think weve gone far beyond that. It has to bewoeasonable meanings. Asming you you make an assumption that there is a best aner i dont know how you can say theres be answer when justices of this court routinely disagree and we utely disagree at 5 4. Is the best answer simply a majority answer . I dont think so. Martinez but, your honor, if Justice Sotomayor i happen, when i dissent, think the others got it wrong. [laughter] Justice Sotomayor andhe often do. [laughter] Justice Sotomayor but putting thatsi but putting that aside, in those situations, there are two plausible not ar plausible. There are two best answers. And the question iwhmakes the choice or helps you make the choice. And if the courtan can disagree reasonably and comes to that tiebreaker point, anit could be 51 49, it could be 52 53, if itthat close, why shoult the person with all of the qualities you spoke about, the entity with all of the quities, expertise, experience, ontheground execution, knowledgef consequences, why shouldnt deference be given to that entity . Martinez justicsomayor, i think your explanation of ambiguitju now just proves the problem with chevron because i think whatou said is that whenever theres a case, a ory se in which the members of the court disagree with oneer, that statute is ambiguous becausee reasonable people can disagree. Justice kagan thats what nobody believes Martinez WellJustice Kagan about chevron, mr. Rtinez. As weve described it, iyo you work hard to figure out a atutory problem. You dont say, oh, s difficult. Oh, there are two interpretations. Oh, you know, not evyby agrees with this in three seconds flat. You dont say that. You do everything you do, look at the text, look at leglave history if you believe in legislative history. Look at context. Look at every tool you can, and still therarplaces where we dont know whether this drug is a is a is a whether this produ ia drug or a dietary supplement, and its best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations. And, you know, judges should know what th dt know. Martinez i i agree with that, justice kaga but, with with all due respect, i think i understood Justice Sotomayor to be saying that whenever judge justices of this court disagree abe be meaning of the statute, because, obviously, everyone on the court is reasonable, that shows t theres an ambiguity. If thats the test, which i think was the implication of the question, then that cant be wrong. Thats much broader than Justice Sotomayor that wasnt martinez step one. Justice sotomayor my implicatio my implication was that using all the statutory tools, you can still come up, using them in good faith, using them, you can still come up with no answer mainez well, i think Justice Sotomayor with no clear sw. Martinez i i think you can can come up with no clea answer because some Justice Sotomayor or no best answer. Martinez because some statutes are hard. But i think you can come up with a best answer, and and the reason i think that is because Justice Sotomayor best only because a majority agrees . Justice jackson but martinez no, no, because because, if you had the same statute with the same interpti question posed to you without the agency having acted, i dont think you woulsatheres no answer here. I think you would choose the best answer. Justice gorsuch i mean, mr. Martinez Justice Jackson but, mr. Martinez Justice Gorsuch i guess im ruggling to understand what ven the questions because, as i understand Justice Kagans poeticals, which are are hard ones, that one option wou be to say its ambiguous and, therefore, the agency alwa wins. That thats what i understood evn to mean at least coming in here today. Another would be to st carefully to both sides and pride special weight under skidmore to a coequal branch of govemes views about the law, which one would think we would do anyway, and that they would have have be considered great weight in arriving at the best answer and that thats what a court wouldof if there were no interpretive principles advanced by the executive branch, if there hadnt been so sort of rule or adjudication. Is that is that corre . Martinez i i think thats correct. And i think the ffence between the skidmore approach that you just laid out andhe chevron approach is just, at the end of the d, ce youve considered all the expertise and all the inrmion the agency has to bear Justice Gorsuch who decides . Martinez who decides . Who is the jue rsuaded or not persuaded . Justice gorsuch is the judge persuaded at the end of the day, with proper deference given to a coequal branch of gornnt, or does the judge abdicate that responsibitynd say automatically whatever the agency says wins martinez right, even even if th