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