1
00:00:00,080 --> 00:00:06,800
You'll hear argument next in case 22451,
Loper Bright Enterprises versus Raimondo.

2
00:00:06,800 --> 00:00:07,800
Mister Clement.

3
00:00:07,840 --> 00:00:12,640
Mister chief justice, and may it please
the court, this case well illustrates the

4
00:00:12,640 --> 00:00:17,795
real world cost of Chevron, which do not
fall exclusively on the chevrons of the

5
00:00:17,795 --> 00:00:21,475
world but injure small businesses
and individuals as well.

6
00:00:21,795 --> 00:00:24,995
Commercial fishing is hard.
Space onboard vehicle...

7
00:00:24,995 --> 00:00:27,955
Vessels is tight, and
margins are tighter still.

8
00:00:29,300 --> 00:00:33,460
Therefore, for the for the... For my clients,
having to carry federal observers on

9
00:00:33,460 --> 00:00:38,100
board is a burden, but having to pay
their salaries is a crippling blow.

10
00:00:38,260 --> 00:00:43,465
Congress recognized as much by strictly
limiting the circumstances in which domestic

11
00:00:43,465 --> 00:00:48,665
fishing vessels could be saddled with
monitoring costs and capping them at two to 3%

12
00:00:48,665 --> 00:00:54,185
of the value of the catch. But the agency
here showed no such restraint, requiring

13
00:00:54,185 --> 00:00:59,150
monitoring on 50% of the trips at a
cost of up 20% of their annual returns.

14
00:00:59,310 --> 00:01:04,030
Nonetheless, the court below deferred to
the agency because it viewed the statute as

15
00:01:04,030 --> 00:01:05,870
silent on the who pays question.

16
00:01:06,350 --> 00:01:10,830
There is no justification for giving the
tide of the government or conjuring agency

17
00:01:10,830 --> 00:01:16,065
authority from silence. Both the APA and
constitutional avoidance principles call

18
00:01:16,065 --> 00:01:20,785
for de novo review, asking only what's
the best reading of the statute.

19
00:01:21,105 --> 00:01:25,265
Asking instead, is the statute
ambiguous, is fundamentally misguided.

20
00:01:25,640 --> 00:01:29,720
The whole point of statutory construction
is to bring clarity, not to identify

21
00:01:29,720 --> 00:01:34,600
ambiguity. The government defends this
practice not as the best ring of the APA but

22
00:01:34,600 --> 00:01:38,040
by invoking stare decisis.
That is doubly problematic.

23
00:01:38,365 --> 00:01:43,325
First, an issue here is only Chevron's
methodology, which is entitled to reduce

24
00:01:43,325 --> 00:01:48,125
stare decisis effect. We have no beef with
Chevron's Clean Air Act holding, and we

25
00:01:48,125 --> 00:01:52,445
could not take issue with its APA holding
because it failed to mention that statute.

26
00:01:52,880 --> 00:01:57,920
But second, all the traditional stare
decisis factors point in favor of overruling

27
00:01:57,920 --> 00:02:03,520
Chevron's methodology. The doctrine is
unworkable as its critical threshold question

28
00:02:03,520 --> 00:02:06,400
of ambiguity is hopelessly ambiguous.

29
00:02:06,785 --> 00:02:12,705
It is also a a reliance destroying doctrine
because it facilitates agency flip

30
00:02:12,705 --> 00:02:17,425
flopping. So the reality here is the
Chevron two step has to go and should be

31
00:02:17,425 --> 00:02:19,105
replaced with only one question.

32
00:02:19,185 --> 00:02:20,865
What is the best reading of the statute?

33
00:02:21,110 --> 00:02:22,710
I welcome the court's questions.

34
00:02:23,430 --> 00:02:24,430
Mister

35
00:02:24,630 --> 00:02:27,430
Clement, you, heard the government's...

36
00:02:27,510 --> 00:02:31,350
The general... General's
arguments, with respect...

37
00:02:31,350 --> 00:02:37,685
Use of of mandamus as a basis
for, sort of deference.

38
00:02:38,405 --> 00:02:40,485
And could you comment on that?

39
00:02:40,485 --> 00:02:45,445
Because my understanding of mandamus is
that the duty has to be clear before it,

40
00:02:45,685 --> 00:02:49,620
actually lies. But I'd
like your comment on that.

41
00:02:49,700 --> 00:02:53,860
Absolutely, justice Thomas. So I think
mandamus is a critical recognition of the

42
00:02:53,860 --> 00:02:58,180
fact that, of course, congress can limit
the remedies available in particular

43
00:02:58,180 --> 00:03:02,020
circumstances, and that's the right way
to understand the mandamus standard.

44
00:03:02,335 --> 00:03:06,095
But that's quite different from telling
the courts that they're to engage in

45
00:03:06,095 --> 00:03:10,815
statutory construction as congress clearly
did in section seven zero six of the APA,

46
00:03:10,895 --> 00:03:14,815
but then say there's a point at which you
can't actually give us your best answer

47
00:03:14,815 --> 00:03:18,610
because you're deferring. And I think it's
important from a separation of powers to

48
00:03:18,610 --> 00:03:22,130
under... Purpose to understand that
it's not just remedies are different.

49
00:03:22,130 --> 00:03:23,730
There's an accountability difference.

50
00:03:23,730 --> 00:03:28,530
Because I suppose congress tomorrow could
decide that we're gonna go back to a world

51
00:03:28,530 --> 00:03:32,685
where the only review of executive branch
action is mandamus, but then congress

52
00:03:32,685 --> 00:03:36,045
would be fully responsible for
that highly unpopular decision.

53
00:03:36,365 --> 00:03:38,765
But... So that's the difference, I
think, the fundamental difference from a

54
00:03:38,765 --> 00:03:42,685
separation of power standpoint between a
limitation on remedies where congress does

55
00:03:42,685 --> 00:03:48,100
it specifically and essentially telling the
courts in the APA specifically, you have

56
00:03:48,100 --> 00:03:52,340
the interpretive authority over statutes
no less than constitutional issues, but

57
00:03:52,340 --> 00:03:55,700
then overlaying a doctrine that says
what we're doing is interpretation.

58
00:03:55,780 --> 00:03:58,900
And that's the critical thing about the
interchange between footnote nine and

59
00:03:58,900 --> 00:04:03,545
footnote 11. Footnote nine tells you as
clearly as you can what you are doing in a

60
00:04:03,545 --> 00:04:06,105
Chevron case is statutory interpretation.

61
00:04:06,425 --> 00:04:11,385
But then in footnote 11, it says at a
certain point, you stop doing statutory

62
00:04:11,385 --> 00:04:16,210
interpretation even though you think
there's a better answer and you defer to a

63
00:04:16,210 --> 00:04:17,570
different branch of government.

64
00:04:17,650 --> 00:04:20,930
And it's not the branch of government the
framers gave the interpretive authority

65
00:04:20,930 --> 00:04:25,090
to. It's the branch of government that the
framers gave the implementing authority.

66
00:04:25,170 --> 00:04:29,065
So I think from that standpoint, Chevron
is a fundamental, egregiously wrong

67
00:04:29,065 --> 00:04:32,265
decision that just gets it wrong
on basis of separation of powers.

68
00:04:32,265 --> 00:04:34,265
There's such a tension in this.

69
00:04:34,265 --> 00:04:40,025
Interpretive authority, everybody
seems to concede, means discretion.

70
00:04:40,600 --> 00:04:46,120
It means there's multiple meanings that you
can take from something, and someone has

71
00:04:46,120 --> 00:04:48,440
to choose among those meanings.

72
00:04:49,160 --> 00:04:51,960
It seems like most people
agree if the court...

73
00:04:51,960 --> 00:04:58,135
If the statute uses reasonable, that
Congress is delegating the definition of

74
00:04:58,135 --> 00:05:04,695
reasonable to the agency. And the agency
is deciding what is reasonable within some

75
00:05:04,695 --> 00:05:10,375
outer limit, either set within
the statute or or within the law.

76
00:05:10,960 --> 00:05:13,360
But the point is that I don't...

77
00:05:13,920 --> 00:05:19,280
It's great rhetoric, mister
Clement, but we do delegate.

78
00:05:19,280 --> 00:05:23,840
We have recognized delegations to
agencies from the beginning of

79
00:05:23,840 --> 00:05:24,000
the

80
00:05:24,000 --> 00:05:28,935
founding of interpretation. And so I I...

81
00:05:28,935 --> 00:05:32,215
I'm I'm at a loss to understand
where the argument comes from.

82
00:05:32,215 --> 00:05:36,295
Well, let me try to clarify. I think
there is a difference between recognizing

83
00:05:36,295 --> 00:05:39,015
discretion and recognizing delegation.

84
00:05:39,450 --> 00:05:44,410
There are certain statutory terms, as
you yourself point out, that that that

85
00:05:44,410 --> 00:05:50,090
properly construed by the courts definitively
would give the agency a realm of

86
00:05:50,090 --> 00:05:51,450
discretion in which to operate.

87
00:05:51,815 --> 00:05:55,575
But there are other terms in which
it is really a binary question.

88
00:05:55,735 --> 00:06:00,295
And the problem, the fundamental feeling
of Chevron is it doesn't do a good job of

89
00:06:00,295 --> 00:06:03,975
distinguishing between the two,
and the best example is brand x.

90
00:06:05,190 --> 00:06:09,270
Broadband communications are either
an information service or they are a

91
00:06:09,270 --> 00:06:13,430
telecommunications service. It might be hard
to figure out which one, but they can't

92
00:06:13,430 --> 00:06:15,350
be one on a Tuesday and the next on a

93
00:06:15,350 --> 00:06:17,030
Thursday Oh, wait a
minute. That's that's...

94
00:06:17,030 --> 00:06:22,775
That it may be binary to you, but I do know
that with the development of technology

95
00:06:23,415 --> 00:06:30,295
and with the development of how that is
implemented in terms of transmission and the

96
00:06:30,295 --> 00:06:32,695
Internet, that over time
that's going to change.

97
00:06:33,370 --> 00:06:34,250
But justice Sotomayor...

98
00:06:34,250 --> 00:06:38,330
And just the... And the same issue even
in the case that we're in right now.

99
00:06:38,810 --> 00:06:43,610
There were two areas that congress looked
at and knew that monitors were critical.

100
00:06:43,610 --> 00:06:49,465
Okay? Foreign sea travel for obvious
reasons because there's very little that

101
00:06:49,705 --> 00:06:53,785
outside, once those ships
leave that people...

102
00:06:53,785 --> 00:06:56,265
That the US government can do to them.

103
00:06:56,825 --> 00:06:59,625
And the other was the... I think
it was the North Pacific area.

104
00:07:00,140 --> 00:07:07,100
But the point is that that doesn't mean that
similar problems didn't arise later and

105
00:07:07,100 --> 00:07:13,900
that the broad words giving the secretary
the power to monitor and implement

106
00:07:13,900 --> 00:07:20,275
measures to ensure that its conservation
goals were being followed wasn't given to

107
00:07:20,275 --> 00:07:26,035
the agency. Those are the facts that what
we should be looking at, in my judgment,

108
00:07:26,515 --> 00:07:32,220
is is... Are... Is this measure commensurate
with what drove the similar measure,

109
00:07:32,220 --> 00:07:35,100
not identical, in the other two examples?

110
00:07:35,100 --> 00:07:37,340
And the agency should
have first crack at that.

111
00:07:37,580 --> 00:07:38,620
So I disagree. If they're

112
00:07:38,620 --> 00:07:43,155
not similar, the court will look at it
and say, your decision was arbitrary and

113
00:07:43,155 --> 00:07:47,075
capricious. If they are
similar, we might say, okay.

114
00:07:47,075 --> 00:07:50,915
This is alright. I don't know the answer
to that because we really haven't dug into

115
00:07:50,915 --> 00:07:55,155
that, but it's just the
point I'm making, which is

116
00:07:57,040 --> 00:08:00,400
that things change on the ground.

117
00:08:00,720 --> 00:08:05,440
So And a definition you give today
may not hold up to new facts.

118
00:08:07,200 --> 00:08:08,960
So facts do change on the ground.

119
00:08:08,960 --> 00:08:11,915
That is part of the problem
with Chevron in brand x.

120
00:08:11,915 --> 00:08:17,435
If there's a difficulty in classifying
broadband today, the difficulty is that the

121
00:08:17,435 --> 00:08:19,675
statute was last passed in 1996.

122
00:08:19,675 --> 00:08:25,080
So figuring out whether twenty twenty three
broadband is a 1996 information service

123
00:08:25,080 --> 00:08:29,640
or a nineteen ninety six telecommunication
service is a granddaddy of a problem.

124
00:08:29,640 --> 00:08:31,080
But it does have a binary answer.

125
00:08:31,080 --> 00:08:35,960
It's one or the other. Now bringing it home
to this statute, what I would say is if

126
00:08:35,960 --> 00:08:40,675
you do the Chevron ambiguity test, you find
a word like appropriate in the statute

127
00:08:40,675 --> 00:08:44,355
or maybe for some people carry, though I
think that one's pretty clear, and you say

128
00:08:44,355 --> 00:08:47,395
that word is ambiguous. So
I'm gonna go to step two.

129
00:08:47,395 --> 00:08:48,835
That's what the court below did.

130
00:08:48,835 --> 00:08:52,035
But if you look at the statute as a whole
and if you looked at it the way you would

131
00:08:52,035 --> 00:08:56,130
in any other context, I think what you
would see is this is a classic case for

132
00:08:56,130 --> 00:08:59,330
exclusius, inclusius, forget
the exact Latin phrase.

133
00:08:59,330 --> 00:09:04,210
But the point is, you have a situation
where in the most commercially well heeled

134
00:09:04,210 --> 00:09:07,025
fishery in the country,
congress did two things.

135
00:09:07,025 --> 00:09:12,625
It said you may, not must, have monitors
paid for by the industry, but you must, if

136
00:09:12,625 --> 00:09:17,185
you do that, cap the fees at two
to 3% of the value of the catch.

137
00:09:17,425 --> 00:09:22,420
Now a congress that did that with the most
well heeled fishery in the nation, I do

138
00:09:22,420 --> 00:09:26,900
not think possibly conveyed the authority
to the agency to say, with a much

139
00:09:26,900 --> 00:09:31,380
different, fishery in The Atlantic where
it's small business people, we're gonna let

140
00:09:31,380 --> 00:09:35,745
you do effectively the same thing, but we
are gonna let you do it to the tune of 20%

141
00:09:35,745 --> 00:09:41,665
of their annual returns. I think if you
strip away Chevron, this is a fairly easy

142
00:09:41,665 --> 00:09:46,570
case where you just say, wow. Congress
had this question in mind in one place or

143
00:09:46,570 --> 00:09:48,570
actually three places to be specific.

144
00:09:48,810 --> 00:09:52,650
And with every domestic fishery,
they only gave it in two instances.

145
00:09:52,650 --> 00:09:56,330
And in both instances, they said it
can be no more than two or 3% of

146
00:09:56,330 --> 00:10:00,010
the time. You're just you're just arguing
that the statute's not ambiguous on that

147
00:10:00,010 --> 00:10:01,010
question.

148
00:10:01,045 --> 00:10:07,285
I am arguing that the best reading of
the statute is that my client wins.

149
00:10:07,365 --> 00:10:09,045
Now if I have to...

150
00:10:09,125 --> 00:10:13,125
Well, but it seems to it seems to me that
you're not contemplating the possibility

151
00:10:13,125 --> 00:10:16,230
of another reason and another result.

152
00:10:16,230 --> 00:10:19,430
And and that may be right. What you're saying
is that this is not a case where there

153
00:10:19,430 --> 00:10:21,430
can be a number of
different interpretations.

154
00:10:21,750 --> 00:10:24,550
But I don't think that's coming to
grips with the Chevron question.

155
00:10:24,630 --> 00:10:27,990
Well, I hope it is, your honor, because
what I would say is exactly what I heard

156
00:10:27,990 --> 00:10:32,255
justice Kavanaugh saying, which is I
don't think there is a different rule of

157
00:10:32,255 --> 00:10:37,455
statutory construction in cases where agency
is a party when in cases when agency is

158
00:10:37,455 --> 00:10:42,470
not a party. In both cases, you just can't
get to a certain point and say, gosh.

159
00:10:42,470 --> 00:10:44,710
This is hard. I think the law has run out.

160
00:10:44,870 --> 00:10:49,030
In both cases, you are supposed to take it
all the way to coming up with your best

161
00:10:49,030 --> 00:10:51,350
answer. Now if you... Well,
you were just saying,

162
00:10:51,350 --> 00:10:56,865
I mean, that the principle of
excusio unius answers, the question.

163
00:10:57,745 --> 00:11:02,385
And if it answers the question, I I guess
I don't understand how you even get to the

164
00:11:02,385 --> 00:11:07,345
Chevron issue. Because Chevron step
one, you would give the same answer.

165
00:11:08,750 --> 00:11:12,830
Maybe you would, your honor, but nobody
knows where step two ends and step two

166
00:11:12,830 --> 00:11:17,630
begins. And, you know, for... I I mean, I
suppose now taking the hints from Kaiser,

167
00:11:17,630 --> 00:11:21,150
which is about our, not Chevron, you would
say, well, of course, you apply all the

168
00:11:21,150 --> 00:11:25,045
stand... Cannons of statutory
construction before you get to step two.

169
00:11:25,205 --> 00:11:29,365
But but the point is, in every other
case, you apply all those cannons, and if

170
00:11:29,365 --> 00:11:33,125
you're not sure about the answer, you dust
off the back of Scalia and Garner, you

171
00:11:33,125 --> 00:11:34,405
see if there aren't some other cannons.

172
00:11:34,565 --> 00:11:41,030
You have no other option. I mean, what what
Chevron is is it's a recognition that in

173
00:11:41,030 --> 00:11:46,790
certain cases, you apply all those tools,
and the conclusion you come up with is

174
00:11:46,790 --> 00:11:48,630
congress hasn't spoken to this issue.

175
00:11:49,345 --> 00:11:52,465
And if you had no other
option, you're a court.

176
00:11:52,465 --> 00:11:57,185
There's a case before you. You try as hard
as you can even though you know you're

177
00:11:57,185 --> 00:11:59,425
basically on your own. But with...

178
00:11:59,425 --> 00:12:05,190
When Chevron comes in, when there is an
agency, what Chevron says is, now there are

179
00:12:05,190 --> 00:12:09,590
two possible decision makers. There's
the agency and there's the court.

180
00:12:09,990 --> 00:12:15,750
And what we think is that Congress would
have preferred the agency to resolve this

181
00:12:15,750 --> 00:12:19,905
question when congressional
direction has...

182
00:12:19,905 --> 00:12:25,185
Cannot be failed because of the agency's
expertise, because of the agency's

183
00:12:25,185 --> 00:12:29,505
experience, because the agency understands
how this question fits within the

184
00:12:29,505 --> 00:12:33,800
statutory scheme. So it's not a
question the court couldn't do it.

185
00:12:33,800 --> 00:12:39,880
It's a question of once congressional
direction can't be found, who does congress

186
00:12:39,880 --> 00:12:41,240
want to do it?

187
00:12:41,880 --> 00:12:46,355
So, justice Kagan, I don't agree with you
that the law runs out in those circums...

188
00:12:46,355 --> 00:12:48,275
Even even though there's an agency there.

189
00:12:48,275 --> 00:12:52,355
But I will give you this. If I did believe
it, I would say, at that point, let's

190
00:12:52,355 --> 00:12:56,515
give the tie to the citizen. Let's
not give the tie to the agency.

191
00:12:56,515 --> 00:12:57,640
And I think it's important I

192
00:12:57,640 --> 00:12:59,400
don't think it's like what we would do.

193
00:12:59,400 --> 00:13:03,160
You would give the tie to the citizen,
and I would give the tie to the agency.

194
00:13:03,160 --> 00:13:05,320
Chevron is about what congress wants.

195
00:13:05,720 --> 00:13:10,280
And you can call it fictional or you want,
but we have lots of presumptions that

196
00:13:10,280 --> 00:13:13,435
operate with respect to
statutory interpretation.

197
00:13:13,595 --> 00:13:18,635
And this is just one of them. It's just
saying, congress understands as well as

198
00:13:18,635 --> 00:13:23,835
anybody different institutional's comparative
attributes and comparative virtues.

199
00:13:24,300 --> 00:13:27,500
And it does not want courts making...

200
00:13:27,820 --> 00:13:34,540
You can... I mean, it's law, but it's
policy laden judgments once once congress's

201
00:13:34,540 --> 00:13:36,460
direction can't be found.

202
00:13:36,885 --> 00:13:40,005
So, justice Kagan, if we're gonna talk about
what congress wants, we probably should

203
00:13:40,005 --> 00:13:43,605
at least divert to the fact that we do
have an amicus brief in this case from the

204
00:13:43,605 --> 00:13:45,605
house and its institutional capacity.

205
00:13:45,765 --> 00:13:48,245
And it doesn't want Chevron.
It's on our side of the case.

206
00:13:48,245 --> 00:13:50,085
It certainly doesn't want Chevron.

207
00:13:50,085 --> 00:13:52,245
It has total control over Chevron.

208
00:13:52,620 --> 00:13:57,340
It can reverse Chevron tomorrow with
respect to any particular statute and with

209
00:13:57,340 --> 00:13:59,260
respect to statutes generally.

210
00:13:59,500 --> 00:14:05,500
And it hasn't. For forty years, it has
exceeded to Chevron, except in super rare

211
00:14:05,500 --> 00:14:09,865
cases. It has basically said,
this is the background rule.

212
00:14:09,865 --> 00:14:15,305
It gives us a stable default rule from
which to write statutes, and we've accepted

213
00:14:15,305 --> 00:14:16,105
that.

214
00:14:16,105 --> 00:14:17,945
So let me say three things about that.

215
00:14:17,945 --> 00:14:21,180
First of all, I'm not sure everybody
in congress wants to overrule Chevron

216
00:14:21,180 --> 00:14:23,740
because Everybody in congress
doesn't wanna do everything.

217
00:14:23,740 --> 00:14:28,060
And My point is it's really convenient for
some members of congress not to have to

218
00:14:28,060 --> 00:14:31,740
tackle the hard questions and to rely on
their friends in the executive branch to

219
00:14:31,740 --> 00:14:33,100
get them everything they want.

220
00:14:33,340 --> 00:14:36,335
I also think justice Kavanaugh's right that
even if congress did it, the president

221
00:14:36,335 --> 00:14:39,455
would veto it. And I think
the third problem is...

222
00:14:39,455 --> 00:14:44,335
And and fundamentally even more problematic
is if you get back to that fundamental

223
00:14:44,335 --> 00:14:49,210
premise of Chevron that when there's silence
or ambiguity, we know the agency wanted

224
00:14:49,210 --> 00:14:54,490
to delegate to the agency. That is just
fictional and it's fictional in a particular

225
00:14:54,490 --> 00:14:58,090
way which is it assumes that
ambiguity is ours of delegation.

226
00:14:58,475 --> 00:15:00,715
But ambiguity is not ours of delegation.

227
00:15:00,715 --> 00:15:04,715
And more often, what ambiguity is, I don't
have enough votes in congress to make it

228
00:15:04,715 --> 00:15:07,035
clear. So I'm gonna leave it ambiguous.

229
00:15:07,035 --> 00:15:09,915
That's how we're gonna get over the
bicameralism and presentment hurdle.

230
00:15:09,915 --> 00:15:13,035
And then we'll give it to my friends in
the agency and they'll take it from here.

231
00:15:13,510 --> 00:15:17,910
And that ends up with the phenomenon where
we have major problems in society that

232
00:15:17,910 --> 00:15:22,630
aren't being solved because instead of
actually doing the hard work of legislation

233
00:15:22,710 --> 00:15:26,150
where you have to compromise with the
other side at the risk of maybe drawing a

234
00:15:26,150 --> 00:15:31,475
primary challenger, You rely on an executive
branch friend to do what you want, and

235
00:15:31,475 --> 00:15:32,835
it's not hypothetical. When I

236
00:15:32,835 --> 00:15:36,115
hear you talk about the You said you
end up in gridlock, which we have now.

237
00:15:36,675 --> 00:15:40,515
No. What I'm saying is Chevron is a big
factor in contributing to gridlock.

238
00:15:40,515 --> 00:15:41,875
And let me give you a concrete example.

239
00:15:42,490 --> 00:15:47,370
I would think that the uniquely twenty
first century phenomenon of cryptocurrency

240
00:15:47,530 --> 00:15:50,570
would have been addressed by congress, and
I certainly would have thought that would

241
00:15:50,570 --> 00:15:54,810
have been true in the wake of the
FTX debacle, but it hasn't happened.

242
00:15:54,810 --> 00:15:58,975
Why hasn't happened? Because there's an
agency head out there that thinks that he

243
00:15:58,975 --> 00:16:03,535
already has the authority to address this
uniquely twenty first century problem with

244
00:16:03,535 --> 00:16:05,935
a couple of statutes passed
in the nineteen thirties.

245
00:16:05,935 --> 00:16:10,015
And he's gonna wave his wand and he's gonna
say the words investment contract are

246
00:16:10,015 --> 00:16:14,910
ambiguous, and that's gonna suck all of
this into my regulatory ambit even though

247
00:16:14,910 --> 00:16:18,910
that same person when he was a professor
said this is probably a job for the CFTC.

248
00:16:18,910 --> 00:16:20,990
Mister Clinton That's... Oh, sorry.

249
00:16:21,150 --> 00:16:24,350
I was just gonna ask you
to address stardustasis.

250
00:16:24,350 --> 00:16:27,755
Let's say... Let's let's assume for the
sake of argument that I agree with you that

251
00:16:27,755 --> 00:16:32,075
in 07/2006, congress has spoken to the
problem that we're not applying a fictional

252
00:16:32,075 --> 00:16:33,995
presumption, but that
congress has told us.

253
00:16:34,155 --> 00:16:36,235
You know, we want courts to
decide questions of law.

254
00:16:37,050 --> 00:16:40,730
The the solicitor general in the last
argument talked about how litigants will be

255
00:16:40,730 --> 00:16:45,770
lining up for cases that were decided under
step two to seek to reopen challenges to

256
00:16:45,770 --> 00:16:49,370
the agency's interpretation. What do
you have to say about the disruptive

257
00:16:49,370 --> 00:16:50,650
consequences of overruling?

258
00:16:51,035 --> 00:16:54,395
So I think the solicitor general, with
all due respect, will be saying the exact

259
00:16:54,395 --> 00:16:57,435
opposite if this court overrules the
decision and will be saying, no.

260
00:16:57,435 --> 00:16:59,595
You gotta look at it at the
right level of generality.

261
00:16:59,755 --> 00:17:05,490
What I would say is this court has moved
away dramatically from certain methods of

262
00:17:05,490 --> 00:17:10,050
interpretation, more dramatically than just
we look at legislative history less now

263
00:17:10,050 --> 00:17:14,530
than we used to. Implied causes of
action, as far as I can tell, are dead.

264
00:17:14,690 --> 00:17:19,055
But that didn't mean that every decision
that was decided in the bad old days was

265
00:17:19,055 --> 00:17:20,655
overruled ipso facto.

266
00:17:20,655 --> 00:17:24,015
But that's a little bit different because
those implied causes of action, the court

267
00:17:24,015 --> 00:17:26,255
was saying this is what the statute means.

268
00:17:26,255 --> 00:17:28,815
Like, title nine implies the
cause of action or whatever.

269
00:17:29,455 --> 00:17:33,455
This would be different because the court
would just be saying, may not be the best,

270
00:17:33,540 --> 00:17:35,620
but the agency's
interpretation is reasonable.

271
00:17:35,620 --> 00:17:38,980
So it doesn't settle it in the same way
that maybe some of those old implied cause

272
00:17:38,980 --> 00:17:40,260
of action cases did.

273
00:17:40,340 --> 00:17:45,380
If you don't want there to be disruption,
all you have to do is make the precise

274
00:17:45,380 --> 00:17:49,665
level of generality move that you alluded
to, which is I would think in every one of

275
00:17:49,665 --> 00:17:55,665
these Chevron cases, the question is, is
the agency's interpretation of the statute

276
00:17:55,665 --> 00:18:00,145
lawful? And if the court has already held,
yes, it is lawful, I would think that

277
00:18:00,145 --> 00:18:04,680
would settle the matter. And as I say in
our brief, the only reason I have any doubt

278
00:18:04,680 --> 00:18:07,000
about that is because of brand x.

279
00:18:07,320 --> 00:18:11,800
And brand x is a huge embarrassment for the
government and the government's friend.

280
00:18:11,800 --> 00:18:13,560
I looked through the bottom side amicus.

281
00:18:13,560 --> 00:18:15,800
I counted 13 amicus briefs
on the bottom side.

282
00:18:16,275 --> 00:18:21,075
Only two of them cited brand x because,
gosh, it would be nice for that decision to

283
00:18:21,075 --> 00:18:22,755
just go away, wouldn't it?

284
00:18:22,755 --> 00:18:24,195
Sorry, justice Thomas.

285
00:18:27,475 --> 00:18:31,800
But that absolutely makes clear that,
you know, this is a reliance destroying

286
00:18:31,800 --> 00:18:37,080
doctrine. And, frankly, if you said that
Chevron is over and all of those step two

287
00:18:37,080 --> 00:18:41,480
cases that were decided are gonna have stare
decisis effect because of the level of

288
00:18:41,480 --> 00:18:45,160
generality point I made, you would
be giving new stability to the law.

289
00:18:45,160 --> 00:18:46,520
It would be improving stability.

290
00:18:46,865 --> 00:18:49,105
That's an important
distinction from Kaiser.

291
00:18:49,265 --> 00:18:51,425
In Kaiser, you know,
the Kaiser doctrine...

292
00:18:51,425 --> 00:18:55,665
The Auer doctrine rather never had its
brand x moment where this court made clear

293
00:18:55,665 --> 00:18:58,145
that the agency could flip a 180 degrees.

294
00:18:58,305 --> 00:19:00,625
And indeed, in Kaiser itself,
it suggested the opposite.

295
00:19:01,190 --> 00:19:06,070
But here with Chevron, we know this
is a a reliance destroying doctrine.

296
00:19:06,230 --> 00:19:08,710
Here's another thing to think
about in terms of Kaiser.

297
00:19:08,790 --> 00:19:11,910
As I read the court's decision, in addition
to the fact that we know it doesn't

298
00:19:11,910 --> 00:19:16,165
directly speak to Chevron, thanks to the
chief justice, I also read it as all all it

299
00:19:16,165 --> 00:19:18,165
says is you need a special justification.

300
00:19:18,485 --> 00:19:22,805
Well, I think we've offered you special
justifications in droves and special

301
00:19:22,805 --> 00:19:24,805
justification beyond the
decision being wrong.

302
00:19:24,965 --> 00:19:29,650
And I don't know of a case where you would
defer on stare decisis grounds when the

303
00:19:29,650 --> 00:19:33,410
relevant decision didn't cite
the relevant statute at all.

304
00:19:33,730 --> 00:19:37,010
I mean, look, this would be a different
world if Chevron went in and wrestled with

305
00:19:37,010 --> 00:19:41,890
section seven zero six and said, despite
all contrary textual indications that it

306
00:19:41,890 --> 00:19:46,305
forecloses de novo review of statutes, I
suppose I'd have to be here making every

307
00:19:46,305 --> 00:19:49,905
single stare decisis argument,
but that is not what Chevron did.

308
00:19:49,905 --> 00:19:52,065
It didn't even mention
the relevant statute.

309
00:19:52,225 --> 00:19:56,065
Now, of course, I don't wanna be seen as
running away from the stare decisis factors

310
00:19:56,190 --> 00:20:00,110
cause I'm happy to walk through all of
them, cause I think all of them cut in our

311
00:20:00,110 --> 00:20:03,070
favor. The decision is
tremendously unworkable.

312
00:20:03,070 --> 00:20:04,830
Nobody knows what ambiguity is.

313
00:20:04,910 --> 00:20:08,845
Even my learned friend on the other side
says there's no formula for it, and that's

314
00:20:08,845 --> 00:20:11,885
an elaboration on what the government
said the last time up here, which is that

315
00:20:11,885 --> 00:20:13,965
nobody knows what ambiguity means.

316
00:20:13,965 --> 00:20:16,605
But that's just workability.
Let's talk about reliance.

317
00:20:16,685 --> 00:20:20,045
I talked about the brand x problems,
are very serious problems.

318
00:20:20,365 --> 00:20:24,730
And, like, I love the brand x case because
broadband regulation provides a perfect

319
00:20:24,730 --> 00:20:28,410
example of the flip flop that can
happen, but it's not my only example.

320
00:20:28,410 --> 00:20:32,090
There are amicus briefs that talk about
the national labor relations board flip

321
00:20:32,090 --> 00:20:36,435
flopping on everything. Ask the little
sisters about stability and reliance

322
00:20:36,435 --> 00:20:40,595
interests as their fate changes from
administration to administration.

323
00:20:40,755 --> 00:20:45,315
It is a it is a disaster. And then you
get to the real world effects on citizens

324
00:20:45,315 --> 00:20:49,770
that justice Gorsuch alluded to, but I'd
like to emphasize its effect on congress.

325
00:20:49,770 --> 00:20:53,370
Because, honestly, I think when the court
was originally doing Chevron, it was

326
00:20:53,370 --> 00:20:57,770
looking only at a comparison between article
two and article three, and who's better

327
00:20:57,770 --> 00:20:59,450
at resolving these hard questions.

328
00:20:59,610 --> 00:21:03,825
I think it got even that question wrong,
but it failed to think about the the

329
00:21:03,825 --> 00:21:06,705
incentives it was giving
the article one branch.

330
00:21:06,705 --> 00:21:09,185
And that's what forty years
of experience has shown us.

331
00:21:09,185 --> 00:21:12,865
And forty years of experience has shown
us that it's virtually impossible to

332
00:21:12,865 --> 00:21:18,470
legislate on meaningful issues, major
questions, if you will, because because right

333
00:21:18,470 --> 00:21:23,270
now, roughly half of the people in congress
at any given point are gonna have their

334
00:21:23,270 --> 00:21:24,630
friends in the executive branch.

335
00:21:24,630 --> 00:21:29,670
So their choice on a controversial issue
is compromise and forge a long term

336
00:21:29,670 --> 00:21:34,955
solution at the cost of maybe getting a
primary challenger, or instead just call up

337
00:21:34,955 --> 00:21:39,435
your buddy who used to be your co staffer
in the executive branch now and have him

338
00:21:39,435 --> 00:21:43,835
give everything on your wish list
based on a broad statutory term.

339
00:21:44,090 --> 00:21:46,090
And my friends asked
for empirical evidence.

340
00:21:46,090 --> 00:21:48,570
I think you just have to
look at this court's docket.

341
00:21:48,810 --> 00:21:51,850
It's been one major rule after another.

342
00:21:51,850 --> 00:21:54,410
It hasn't been one major
statute after another.

343
00:21:54,490 --> 00:21:58,055
I would have thought congress might have
addressed student loan forgiveness if that

344
00:21:58,055 --> 00:22:00,455
were really such an important
issue to one party in the...

345
00:22:00,455 --> 00:22:04,855
In in in congress. I would have thought
maybe they would have fixed the the eviction

346
00:22:04,855 --> 00:22:07,815
moratorium. I could go on
and on on these issues.

347
00:22:07,815 --> 00:22:13,150
They don't get addressed because Chevron
makes it so easy for them not to tackle the

348
00:22:13,150 --> 00:22:15,710
hard issues and forge
a permanent solution.

349
00:22:15,950 --> 00:22:19,310
My friends on the other side also talk
about, you know, this is this is great

350
00:22:19,310 --> 00:22:21,230
because it leads to uniformity in the law.

351
00:22:21,625 --> 00:22:23,465
Well, I don't think
that's an end in itself.

352
00:22:23,465 --> 00:22:26,825
Again, if it were up to me, if if we
think uniformity is so great, let's have

353
00:22:26,825 --> 00:22:29,865
uniformity and let's have the thumb
on the scale inside of the citizen.

354
00:22:30,185 --> 00:22:34,425
But the reality is the kind of uniformity
that you get under Chevron is something

355
00:22:34,425 --> 00:22:38,110
only the government could love because
every court in the country has to agree on

356
00:22:38,110 --> 00:22:41,150
the current administration's
view of a debatable statute.

357
00:22:41,310 --> 00:22:45,470
You don't get the kind of uniformity that
you actually want, which is a stable

358
00:22:45,470 --> 00:22:48,270
decision that says this is
what the statute means.

359
00:22:48,270 --> 00:22:53,645
Mister Kemet, can I ask you the same
question I asked mister Martinez about why

360
00:22:53,725 --> 00:22:56,845
Chevron was initially popular?

361
00:22:57,085 --> 00:23:03,885
People who were very sophisticated and
had a deep understanding of how judges

362
00:23:04,205 --> 00:23:10,100
decide what a statute means and a deep
understanding of how administrative agencies

363
00:23:10,100 --> 00:23:16,020
work thought that Chevron would be an
improvement because it would take judges out

364
00:23:16,020 --> 00:23:19,380
of the business of making what
were essentially policy decisions.

365
00:23:19,380 --> 00:23:24,155
Now were they wrong then? And if they
weren't wrong, then what, if anything, has

366
00:23:24,155 --> 00:23:25,435
changed since then?

367
00:23:25,675 --> 00:23:29,195
So justice Alito, I think they
were partially right then.

368
00:23:29,195 --> 00:23:33,515
So let me say what's changed and what
hasn't changed, I e, what the court missed

369
00:23:33,515 --> 00:23:37,510
back in Chevron. What has changed is
we've come a long way in statutory

370
00:23:37,510 --> 00:23:42,870
interpretation. And, you know, if Chevron
was a response to some of the excesses of

371
00:23:42,870 --> 00:23:47,235
the DC circuit in the freewheeling
days of the late seventies and the use

372
00:23:47,235 --> 00:23:50,755
legislative history, and oh, by the way,
the text of the statute appears in the

373
00:23:50,755 --> 00:23:54,035
margin of my opinion, and I'm not gonna
talk about it again because I'm off to the

374
00:23:54,035 --> 00:23:56,915
races. We now, I think,
are all textualist.

375
00:23:56,915 --> 00:24:00,035
The focus is much greater
on the text of the statute.

376
00:24:00,350 --> 00:24:05,230
And once you recognize that, you recognize
the problem with deferring at a certain

377
00:24:05,230 --> 00:24:09,310
point to the agencies. And let's look at
the track record of the agencies before

378
00:24:09,310 --> 00:24:13,565
this court. If they are so expert, they
should be able to persuade you in case after

379
00:24:13,565 --> 00:24:15,725
case that they're getting
these statutes right.

380
00:24:15,965 --> 00:24:20,365
By my count and by the Cato Institute in
their in their amicus brief, since the

381
00:24:20,365 --> 00:24:25,725
court last cited Chevron, the administration
is batting about 300 in these cases.

382
00:24:25,725 --> 00:24:29,860
So expertise is not all what it's cracked
up to be, and that's true even in the most

383
00:24:29,860 --> 00:24:33,780
complicated cases. Look at the
American Hospital Association's case.

384
00:24:34,020 --> 00:24:37,860
I don't think you're gonna find a statute
that's more complicated than that one, but

385
00:24:37,860 --> 00:24:44,115
yet this court had no trouble unanimously
saying that you can't have hospital chain

386
00:24:44,115 --> 00:24:46,995
specific pricing without
first doing a survey.

387
00:24:46,995 --> 00:24:49,475
Well, I don't know whether you
can say we had no trouble.

388
00:24:51,395 --> 00:24:52,995
I I was gonna say that, but...

389
00:24:52,995 --> 00:24:53,250
Yeah.

390
00:24:53,250 --> 00:24:54,250
So was I...

391
00:24:55,250 --> 00:24:57,170
No one was troubled to write a dissent.

392
00:24:57,170 --> 00:24:59,490
Let let me me put it that way.

393
00:24:59,490 --> 00:25:01,170
But... And and I can use other examples.

394
00:25:01,170 --> 00:25:05,490
Encino, a case where this court said that
Chevron wasn't applicable because of a

395
00:25:05,490 --> 00:25:09,165
procedural defect. Now it split the court
five to four, but how did it decide the

396
00:25:09,165 --> 00:25:12,125
case? Decided the case with
the distributive canon.

397
00:25:12,125 --> 00:25:16,125
Do you think the labor department wage
and hour division is the experts on the

398
00:25:16,125 --> 00:25:18,125
distributive canon, or do
you think the courts are?

399
00:25:19,070 --> 00:25:20,750
Thank thank you, mister Clement.

400
00:25:21,150 --> 00:25:27,230
The answer, from mister Martinez on several,
questions about what happens when you,

401
00:25:27,230 --> 00:25:30,830
you know, get rid of Chevron
in this case was, Skidmore.

402
00:25:31,310 --> 00:25:36,585
And if Skidmore is going to occupy a
more prominent role going forward, I...

403
00:25:36,585 --> 00:25:40,265
I'd like to know exactly what your
understanding of that principle is.

404
00:25:40,585 --> 00:25:44,665
So my understanding of Skidmore consistent
with justice Kavanaugh's is it's not

405
00:25:44,665 --> 00:25:46,025
actually a deference doctrine.

406
00:25:46,025 --> 00:25:49,310
Call it a doctrine of
weight or persuasiveness.

407
00:25:49,310 --> 00:25:53,870
And then the beauty of of Skidmore, as I
understand it, I suppose the defect as

408
00:25:53,870 --> 00:25:57,230
well. Justice Scalia called it the
totality of the circumstances.

409
00:25:57,310 --> 00:26:00,990
But I think the Skidmore test allows you
to consider the weight of the agency's

410
00:26:00,990 --> 00:26:04,985
views, but then consider, is it something
they came up with, like, right after the

411
00:26:04,985 --> 00:26:08,905
statute was passed so it actually sheds
light on the original public meaning of the

412
00:26:08,905 --> 00:26:12,105
statute? Or is it something that they
didn't adopt for twenty years later?

413
00:26:12,185 --> 00:26:15,865
Or did they adopt one policy right after
the statute was passed and actually flip it

414
00:26:15,865 --> 00:26:20,750
over twenty years later? All of that is
something that Skidmore can account for that

415
00:26:20,750 --> 00:26:23,230
Chevron has never been
caused to account for.

416
00:26:23,230 --> 00:26:28,030
Now you could modify it, you know, a la
Kaiser and try to add all of that to it, but

417
00:26:28,030 --> 00:26:29,790
I do think that the Chevron ex...

418
00:26:29,790 --> 00:26:30,790
Experiment has failed.

419
00:26:31,175 --> 00:26:33,895
Well, it's usually described
as a deference doctrine.

420
00:26:33,895 --> 00:26:35,895
People talk about skidmore deference.

421
00:26:36,375 --> 00:26:37,975
Yes. They do, mister chief justice.

422
00:26:37,975 --> 00:26:41,815
And that puzzled me a little bit, and I
went to the dictionary and I looked up

423
00:26:41,815 --> 00:26:45,895
deference, and the most common definition
is yielding to the will of another.

424
00:26:46,440 --> 00:26:50,200
And I think if that's the definition of
of deference, then you shouldn't apply

425
00:26:50,200 --> 00:26:54,280
Chevron... Skidmore rather in a way
where you actually say, alright.

426
00:26:54,280 --> 00:26:58,600
This is super close, and I think I have the
right answer, but I'm gonna yield to the

427
00:26:58,600 --> 00:26:59,880
position of the executive branch.

428
00:27:00,365 --> 00:27:04,925
That's never what Skidmore, has
been understood to mean or said.

429
00:27:04,925 --> 00:27:11,805
It it said that the persuasiveness of the
government's interpretation depends upon

430
00:27:11,805 --> 00:27:15,325
the circumstances and some
of those you enumerated.

431
00:27:16,240 --> 00:27:17,760
Absolutely. Call it what you will.

432
00:27:17,760 --> 00:27:19,360
That's what it is. Right?

433
00:27:19,360 --> 00:27:23,600
Look. I don't mean to be pedantic, but I
do think that calling it deference sort of

434
00:27:23,600 --> 00:27:27,520
gets you to footnote 11 land in a junior
varsity way, and I think that would be

435
00:27:27,520 --> 00:27:31,075
unfortunate. And the other great thing
about Skidmore is it You're out of school

436
00:27:31,075 --> 00:27:31,395
here.

437
00:27:31,395 --> 00:27:32,035
Oh, sorry.

438
00:27:32,035 --> 00:27:34,675
Skidmore... I mean, what
does Skidmore mean?

439
00:27:34,675 --> 00:27:38,275
Skidmore means if we think you're
right, we'll tell you you're right.

440
00:27:38,435 --> 00:27:42,595
So the idea that Skidmore is
going to be a backup at...

441
00:27:42,595 --> 00:27:47,510
Once you get rid of Chevron, That
Skidmore means anything other than

442
00:27:48,310 --> 00:27:52,310
nothing. Skidmore has
always meant nothing.

443
00:27:53,110 --> 00:27:58,405
Justice Jackson, the earlier one, would
beg to differ with you on that score.

444
00:27:58,405 --> 00:28:00,005
He thought it was quite important.

445
00:28:00,005 --> 00:28:04,085
And I think, you know, if you look at the
Skidmore case itself, I mean, it took into

446
00:28:04,085 --> 00:28:07,845
account the wage and hour
division's view of waiting time.

447
00:28:08,085 --> 00:28:11,180
And ironically enough, in that case said,
you know, we can't have a bright line test

448
00:28:11,180 --> 00:28:14,460
one way or another because the agency has
looked at this and thought a lot of time,

449
00:28:14,460 --> 00:28:16,620
and it's really gonna be more
fact dependent than that.

450
00:28:16,620 --> 00:28:18,140
We can take that into account.

451
00:28:18,300 --> 00:28:22,460
I think in some of these situations, you
are gonna be able to look at the agency's

452
00:28:22,460 --> 00:28:25,605
expertise and make a judgment
that this is in their bailiwick.

453
00:28:25,605 --> 00:28:27,285
They've really made some
pretty good points.

454
00:28:27,445 --> 00:28:31,205
But in other context, you're gonna see that
what the agency wants you to defer to is

455
00:28:31,205 --> 00:28:34,485
its own view that, as in this
case, we ran out of money.

456
00:28:34,565 --> 00:28:38,830
And it sure would be nice if we could just
impose this fine and continue to monitor

457
00:28:38,830 --> 00:28:43,390
these people at a 50% rate, by making them
pay for it instead of us having to pay

458
00:28:43,390 --> 00:28:44,430
for it. Mean, that's... There's no

459
00:28:44,590 --> 00:28:46,590
Thank you. Expertise. Mister Thomas?

460
00:28:47,310 --> 00:28:50,875
Missus Salido? Mister Kagan? Cagelin.

461
00:28:50,875 --> 00:28:55,355
I guess what I'm struck by, mister Clement,
and and and this follows from this

462
00:28:55,355 --> 00:29:01,275
Skidmore thing, because Skidmore is not
a doctrine of humility, but Chevron is.

463
00:29:01,435 --> 00:29:06,250
Chevron is a doctrine that says, you know,
we recognize that there are some places

464
00:29:06,250 --> 00:29:11,450
where congressional direction has run out,
and we think congress would have wanted

465
00:29:11,450 --> 00:29:14,250
the agency to do something
rather than the courts.

466
00:29:14,250 --> 00:29:20,495
We accept that because that's the best
reading of congress and also because we know

467
00:29:20,495 --> 00:29:22,575
in our hard of hearts that con...

468
00:29:22,575 --> 00:29:26,175
That agencies know things
that courts do not.

469
00:29:26,415 --> 00:29:28,175
And that's the basis of Chevron.

470
00:29:28,175 --> 00:29:34,120
And then you take that doctrine of humility
and you put on top of it stare decisis,

471
00:29:34,120 --> 00:29:38,920
another doctrine of humility, which is
to suggest we don't willy nilly reverse

472
00:29:38,920 --> 00:29:41,720
things unless there's an...
A special justification.

473
00:29:42,040 --> 00:29:45,205
Here, Kaiser said, it's
even more than that.

474
00:29:45,205 --> 00:29:50,005
There's even more reason not to reverse
something because there have been 70 supreme

475
00:29:50,005 --> 00:29:55,205
court decisions relying on Chevron,
because there have been 17,000 lower court

476
00:29:55,205 --> 00:30:00,260
decisions relying on Chevron. And you're
saying blow up one doctrine of humility,

477
00:30:00,820 --> 00:30:06,180
blow up another doctrine of humility, and
then expect anybody to think that the

478
00:30:06,180 --> 00:30:08,580
courts are acting like courts.

479
00:30:09,060 --> 00:30:14,215
With respect, your honor, this court has,
on multiple occasions, corrected its own

480
00:30:14,215 --> 00:30:18,455
errors when it comes to statutory
interpretation, how to deal with qualified

481
00:30:18,455 --> 00:30:20,695
immunity, implied causes of action.

482
00:30:20,775 --> 00:30:25,575
In the Encino motor cases... Motor case,
there was a canon of construction that said

483
00:30:25,575 --> 00:30:30,130
exemptions to FLSA provisions
should be construed narrowly.

484
00:30:30,210 --> 00:30:34,370
This court overruled that and said that
should have no role to play in interpreting

485
00:30:34,370 --> 00:30:37,810
the FLSA. It didn't run through
the stare decisis factors.

486
00:30:37,890 --> 00:30:41,170
So I think there is... I don't know whether
you call it humility or just clarity.

487
00:30:41,465 --> 00:30:45,945
But when the question is judicial
methodology, I think it's very weird to ask

488
00:30:45,945 --> 00:30:48,185
congress to fix your problems for you.

489
00:30:48,265 --> 00:30:52,025
I don't think you actually wanna invite,
in all candor, that particular fox into

490
00:30:52,025 --> 00:30:56,025
your head... Henhouse and tell you how to
go about interpreting statutes or how to

491
00:30:56,025 --> 00:30:57,970
go about dealing with qualified immunity

492
00:30:58,130 --> 00:31:04,610
Kaiser, five justices, a majority
of this court, made clear that, our

493
00:31:04,610 --> 00:31:08,290
deference was, subject
to normal judicial...

494
00:31:08,610 --> 00:31:10,770
Normal principles of stare decisis.

495
00:31:10,770 --> 00:31:15,315
And to the extent that there was a ratchet
up or a ratchet down, it ratcheted them

496
00:31:15,315 --> 00:31:22,195
up because it understood that that deference
decision supported was the basis for

497
00:31:22,675 --> 00:31:25,715
tens, hundreds, thousands
of other decisions.

498
00:31:26,480 --> 00:31:31,360
So I'm gonna be at a disadvantage in
debating what exactly Kaiser held.

499
00:31:31,360 --> 00:31:35,760
But the way I read Kaiser is it said that
you need a special justification beyond

500
00:31:35,760 --> 00:31:39,280
the decision being wrong. I think
we've given you that in spades.

501
00:31:39,685 --> 00:31:43,925
Kaiser did not, with all due respect,
wrestle with Saucier against Katz.

502
00:31:43,925 --> 00:31:47,125
It didn't wreck... It didn't
wrestle with Gaudin in the opinion.

503
00:31:47,365 --> 00:31:51,365
So I think I can I can reconcile
all your law by saying, alright?

504
00:31:51,365 --> 00:31:55,610
When it's a procedural rule or court made
rule of interpretation, maybe we look to

505
00:31:55,610 --> 00:31:59,210
some of the same factors but they don't
apply with the same weight as they would if

506
00:31:59,210 --> 00:32:03,130
it were a substantive result. And that
does make sense because at least under our

507
00:32:03,130 --> 00:32:07,450
view of the world, when you move on from
a bad methodology, you don't overturn all

508
00:32:07,450 --> 00:32:09,265
those decisions. So substantive decisions.

509
00:32:09,265 --> 00:32:13,745
They still stay there. So section nineteen
eighty two still has an implied cause of

510
00:32:13,745 --> 00:32:16,305
action. Section nineteen eighty
one still has a cause of action.

511
00:32:16,305 --> 00:32:19,425
I could go on and on. Those cases
don't get over to you, mister Clement.

512
00:32:19,425 --> 00:32:20,425
Justice Gorsuch?

513
00:32:21,130 --> 00:32:23,610
One lesson of humility is
admit when you're wrong.

514
00:32:24,250 --> 00:32:30,890
Justice Scalia, who took Chevron, which
nobody understood to include this two step

515
00:32:31,130 --> 00:32:36,535
move as originally written, and
turned it into what we now know.

516
00:32:37,175 --> 00:32:40,455
And late in life, he came
to regret that decision.

517
00:32:41,415 --> 00:32:43,815
What do we make of that
lesson about humility?

518
00:32:43,975 --> 00:32:49,175
No. Look. I I do think that, you know,
reconsidering particularly a methodological

519
00:32:49,175 --> 00:32:52,350
error is part of judicial humility.

520
00:32:52,350 --> 00:32:57,070
And I do think if you look at justice
Scalia's Perez opinion, the mortgage banker

521
00:32:57,070 --> 00:33:03,795
cases, one of the things he said there most
clearly, but he said all along, was our

522
00:33:03,795 --> 00:33:08,115
decision in Chevron was completely heedless
of section seven zero six of the APA.

523
00:33:08,115 --> 00:33:12,995
And if you're looking for a special
justification to overturn an opinion, I think

524
00:33:12,995 --> 00:33:17,875
whiffing on the underlying statute entirely
has got to be at the top of the list.

525
00:33:18,240 --> 00:33:21,760
Thank you. Justice
Kavanaugh? Couple questions.

526
00:33:22,080 --> 00:33:26,400
First on Skidmore, I just wanna say how
I've thought about it, and you can tell me

527
00:33:26,400 --> 00:33:33,325
whether this is wrong, that it,
respects contemporaneous and consistent

528
00:33:33,325 --> 00:33:39,645
interpretations as evidence of the proper
original meaning of the statute because

529
00:33:39,645 --> 00:33:43,965
that's kind of common sense in statutory
interpretation more generally, that if an

530
00:33:43,965 --> 00:33:49,060
interpretation was contemporaneous and
consistent, it's more likely to be correct.

531
00:33:49,060 --> 00:33:54,660
So that's respect, but the word deference,
I wouldn't have wouldn't have used there.

532
00:33:55,220 --> 00:33:56,980
I think you have that exactly right.

533
00:33:56,980 --> 00:34:01,825
And one of the virtues of looking at
Skidmore that way is it is consistent with a

534
00:34:01,825 --> 00:34:05,825
principle that this court articulated in
the Christopher against Smith Klein Beckman

535
00:34:05,825 --> 00:34:10,625
case, which is sometimes the industry
is the one with a consistent long term

536
00:34:10,625 --> 00:34:14,640
understanding of the statute that goes
all the way back and sheds light on the

537
00:34:14,640 --> 00:34:18,320
original public meeting. And it seems to
me Skidmore allows you to say, if the

538
00:34:18,320 --> 00:34:22,000
industry says... It's taken a position
that's consistent from the beginning and the

539
00:34:22,000 --> 00:34:26,595
agency flips twenty five years into the
enterprise, Skidmore gives you the tools for

540
00:34:26,595 --> 00:34:29,235
saying, alright, agency,
you're gonna lose that case.

541
00:34:29,235 --> 00:34:29,875
Chevron does.

542
00:34:29,875 --> 00:34:34,835
Right. A big difference between Skidmore
and Chevron, there are others, is when the

543
00:34:34,835 --> 00:34:37,475
agency changes position every four years,

544
00:34:39,030 --> 00:34:43,910
that's going to still get Chevron
deference, but Skidmore would...

545
00:34:43,910 --> 00:34:48,150
The respect to that interpretation would
drop out because it's not been a consistent

546
00:34:48,150 --> 00:34:53,430
and contemporaneous, consistent from the
contemporaneous understanding of the

547
00:34:53,430 --> 00:34:54,045
statute.

548
00:34:54,045 --> 00:34:58,285
Absolutely. Flip flopping is a huge
Skidmore minus, and it's a matter of

549
00:34:58,285 --> 00:35:01,245
indifference. Or, actually, if you look
at some of the things that justice Scalia

550
00:35:01,245 --> 00:35:04,765
said in the beginning when he was
enthusiastic about the doctrine, the fact...

551
00:35:04,765 --> 00:35:07,885
He viewed the fact that agencies could
flip flop under Chevron as being an

552
00:35:07,885 --> 00:35:08,885
affirmative virtue.

553
00:35:09,220 --> 00:35:14,420
And, justice Kagan raises, an important
point about judicial restraint or humility

554
00:35:14,420 --> 00:35:17,540
in terms of Chevron, and that...

555
00:35:17,780 --> 00:35:19,700
That's an important concern for any judge.

556
00:35:19,700 --> 00:35:23,780
I think the flip side, why this is hard,
the other concern for any judge is,

557
00:35:24,100 --> 00:35:30,475
abdication to the executive branch running
roughshod over limits established in the

558
00:35:30,475 --> 00:35:33,755
constitution or, in
this case, by congress.

559
00:35:33,755 --> 00:35:35,675
So I think we gotta find the...

560
00:35:35,915 --> 00:35:41,270
That's that's why it's hard, find the right
balance between restraint and letting

561
00:35:41,270 --> 00:35:43,910
the executive get away, with too much.

562
00:35:43,910 --> 00:35:47,990
On that front, do you, there
was questions earlier.

563
00:35:47,990 --> 00:35:50,070
Do judges really rely on Chevron?

564
00:35:50,070 --> 00:35:51,350
You wanna speak to that?

565
00:35:51,430 --> 00:35:54,575
No. I'd love to speak to that because I
think that's an important consideration.

566
00:35:54,575 --> 00:35:57,775
I mean, one of the premises of one of
justice Kagan's questions in the first

567
00:35:57,775 --> 00:36:02,095
argument was that, you know, you rarely
get to Chevron step two, but there are

568
00:36:02,095 --> 00:36:04,335
statistics on this. There is a...

569
00:36:04,335 --> 00:36:08,420
You know, the most exhaustive survey of over
a thousand cases by Barnett and Walker,

570
00:36:08,420 --> 00:36:10,980
we cited on page 33 of the blue brief.

571
00:36:11,140 --> 00:36:13,620
It found that courts were reaching 70...

572
00:36:13,620 --> 00:36:16,660
Were reaching step two in
seventy percent of the cases.

573
00:36:16,980 --> 00:36:20,425
Seventy percent of the cases. The Cato
Institute brief, you might think, well,

574
00:36:20,425 --> 00:36:23,545
things have gotten better because that
was a longitudinal study over a number of

575
00:36:23,545 --> 00:36:26,985
years. You might think, well, things are
getting a lot better because we've signaled

576
00:36:26,985 --> 00:36:29,225
that Chevron is on sort of life support.

577
00:36:29,305 --> 00:36:33,705
But the Cato ran the numbers for, like,
twenty twenty twenty and 2021, and it's down

578
00:36:33,705 --> 00:36:38,560
to sixty percent. But it's still well over
half the time your average judge in the

579
00:36:38,560 --> 00:36:43,840
court of appeals is getting to step two,
and judge Kethledge, you know, he hasn't

580
00:36:43,840 --> 00:36:47,440
updated that speech. But as far as I know,
judge Kethledge still hasn't gotten to

581
00:36:47,440 --> 00:36:52,085
step two once. And, you know, that's an
that's that's an unsettlement in the law.

582
00:36:52,085 --> 00:36:55,685
That's a disconnect in the law that it's
very hard to get your fingers around.

583
00:36:55,685 --> 00:36:59,525
Like, at least if, you know, one circuit
says the statute means x and another

584
00:36:59,525 --> 00:37:01,925
circuit says why, everybody can see that.

585
00:37:01,925 --> 00:37:04,165
Cert can be granted. This
court can resolve the case.

586
00:37:04,620 --> 00:37:08,940
But if courts are deciding some case is step
one, some case is step two in ways that

587
00:37:08,940 --> 00:37:11,740
are radically different, I don't even
know how you really unearth that.

588
00:37:11,740 --> 00:37:14,380
So I think that's another
huge problem with this.

589
00:37:14,380 --> 00:37:19,435
One, last question. If Chevron were overruled,
I think your brief says we should go

590
00:37:19,435 --> 00:37:22,875
ahead and decide the issue, the
statutory issue in this case.

591
00:37:22,875 --> 00:37:25,115
Can you speak very briefly to why?

592
00:37:26,235 --> 00:37:30,475
Very briefly. Because I think it would give
a great illustration of how to do plain

593
00:37:30,475 --> 00:37:32,075
old fashioned statutory construction.

594
00:37:32,540 --> 00:37:37,820
It would also be a useful object lesson
in how far very good judges get astray by

595
00:37:37,820 --> 00:37:41,740
applying Chevron. Because another problem
with Chevron, I'll still try to be brief,

596
00:37:41,900 --> 00:37:44,940
it tends to focus on one or two terms and
ask whether they're ambiguous, and you

597
00:37:44,940 --> 00:37:46,540
lose the context of the statute.

598
00:37:46,540 --> 00:37:50,145
I think if you have the context of this
statute and the fact that the only other

599
00:37:50,145 --> 00:37:55,025
places they put these kind of fees on
domestic fisheries, they put a a serious cap,

600
00:37:55,025 --> 00:37:58,305
and then they did it only for the most
well heeled fisheries or in special

601
00:37:58,305 --> 00:38:02,145
circumstances, this is an easy case doing
good old fashioned statutory construction.

602
00:38:02,310 --> 00:38:02,630
Thank

603
00:38:02,630 --> 00:38:03,910
you. Justice Barrett?

604
00:38:04,390 --> 00:38:08,230
So we have a host of canons, clear
statement rules, some of which are

605
00:38:08,230 --> 00:38:11,510
constitutionally inspired. And when I
asked the solicitor general in the last

606
00:38:11,510 --> 00:38:15,110
argument about whether Chevron should be
thought of thought of as part of that

607
00:38:15,110 --> 00:38:20,085
package, She said that Chevron kind of
stood distinct, that Chevron was unique.

608
00:38:20,165 --> 00:38:21,205
Can you address that?

609
00:38:21,365 --> 00:38:22,725
I think she's right about that.

610
00:38:22,725 --> 00:38:25,845
I think it it sits out there like an
island, and that's part of the reason to

611
00:38:25,845 --> 00:38:29,720
overrule it. And I think all the other
canons I think all the other canons that I

612
00:38:29,720 --> 00:38:34,040
can think of are fully consistent with
de novo statutory, interpretation.

613
00:38:34,040 --> 00:38:37,640
I might be missing one, but the ones I
think of is when you're doing de novo

614
00:38:37,640 --> 00:38:41,320
statutory construction, you take
into account all of those canons.

615
00:38:41,320 --> 00:38:45,715
Chevron's the only one I know that says
that at a certain point, you just stop the

616
00:38:45,715 --> 00:38:51,875
de novo stuff and you sort of surrender even
under circumstances where if the agency

617
00:38:51,875 --> 00:38:53,955
weren't a litigant, you would keep going.

618
00:38:53,955 --> 00:38:55,475
Only Chevron does that.

619
00:38:56,510 --> 00:39:01,310
One last question. You said, you know, you
pointed out that on our docket, we've had

620
00:39:01,310 --> 00:39:05,630
multiple cases in which the major
questions doctrine has come up.

621
00:39:05,630 --> 00:39:08,590
Do you think that overruling Chevron
is gonna solve that problem?

622
00:39:08,590 --> 00:39:12,265
Because in a lot of those cases, the
agency has hung its head on words like

623
00:39:12,265 --> 00:39:16,825
appropriate, you know, and the kind of
language which I think, and you can tell me

624
00:39:16,825 --> 00:39:21,225
if you disagree about this, I think you
agree that when a statute uses a word that

625
00:39:21,225 --> 00:39:25,670
leaves room for discretion, like appropriate,
feasible, reasonable, that that is a

626
00:39:25,670 --> 00:39:27,510
delegation of authority to the agency.

627
00:39:27,670 --> 00:39:32,710
So don't you think agencies will still
continue to rely on words like that in ways

628
00:39:32,710 --> 00:39:35,990
that might not, you know,
limit our emergency docket?

629
00:39:35,990 --> 00:39:40,845
I'm not so naive to say that overruling
Chevron is gonna solve all the problems with

630
00:39:40,845 --> 00:39:44,365
the emergency docket, but it
is gonna make it a lot better.

631
00:39:44,605 --> 00:39:47,805
Because sure, there's some places where
they use appropriate or they try to use

632
00:39:47,805 --> 00:39:51,165
modify, which was bold in light
of AT and T, but whatever.

633
00:39:51,165 --> 00:39:53,325
They pick some of these words
that are more capacious.

634
00:39:53,780 --> 00:39:56,100
But that broadband case is coming here.

635
00:39:56,100 --> 00:39:59,380
That's a case that
shouldn't be, chevronized.

636
00:39:59,380 --> 00:40:03,860
You know, some some days somebody's gonna
litigate whether crypto is an investment

637
00:40:03,860 --> 00:40:08,895
contract. Justice Kagan's confident that,
you know, AI is gonna get here because of

638
00:40:08,895 --> 00:40:12,015
a statute, I think it's more likely that
congress is gonna say, well, there's some

639
00:40:12,015 --> 00:40:13,455
scientific officer in commerce.

640
00:40:13,455 --> 00:40:14,815
We'll let them fix the problem.

641
00:40:14,895 --> 00:40:18,095
But... So so my my own view
of this is it's not gonna...

642
00:40:18,095 --> 00:40:22,095
It's not a cure all, but it's gonna move
things very much in the right direction.

643
00:40:22,175 --> 00:40:24,190
Thank you. Thank you.

644
00:40:26,110 --> 00:40:28,350
General Preluder, welcome back.

645
00:40:28,830 --> 00:40:32,190
Thank you, mister chief justice,
and may it please the court.

646
00:40:32,510 --> 00:40:36,350
Throughout this litigation and at times
this morning, petitioners have sought to

647
00:40:36,350 --> 00:40:40,325
characterize this case as presenting a
fundamental question of the separation of

648
00:40:40,325 --> 00:40:45,605
powers and a test of article three, will
courts continue to say what the law is?

649
00:40:45,845 --> 00:40:49,685
But I think stepping back, I wanna make
sure that what doesn't get lost in the

650
00:40:49,685 --> 00:40:53,690
shuffle is that petitioners have made
an important concession that I think

651
00:40:53,690 --> 00:40:58,730
illustrates that the issue here is actually
far narrower and that their attacks on

652
00:40:58,730 --> 00:41:02,090
Chevron lack merit and are unnecessary.

653
00:41:02,650 --> 00:41:08,165
The concession is this. Petitioners acknowledge
that congress can expressly delegate

654
00:41:08,165 --> 00:41:12,405
to agencies the authority to define
statutory terms and fill gaps.

655
00:41:12,485 --> 00:41:13,045
Imagine,

656
00:41:13,045 --> 00:41:13,205
for

657
00:41:13,205 --> 00:41:17,845
example, if the statute said in Chevron,
stationary source as defined by the

658
00:41:17,845 --> 00:41:22,550
administrator. I take both petitioners
to give that up and recognize that is a

659
00:41:22,550 --> 00:41:25,190
delegation, and court should respect that.

660
00:41:25,190 --> 00:41:28,550
The role of the court in that circumstance
is to make sure that the agency has

661
00:41:28,550 --> 00:41:31,190
followed the proper
procedures and stayed what...

662
00:41:31,190 --> 00:41:34,150
Within whatever outer bounds
Congress itself has set.

663
00:41:34,625 --> 00:41:39,345
And all of that complies with the
constitution, of course, because Congress has

664
00:41:39,345 --> 00:41:43,345
article one authority to delegate gap
filling authority to agencies, and the

665
00:41:43,345 --> 00:41:47,505
executive has core article two
authority to fill in those gaps.

666
00:41:47,505 --> 00:41:49,665
That's a core exercise
of the executive power.

667
00:41:49,860 --> 00:41:53,940
And then the article three courts are just
fulfilling their judicial role when they

668
00:41:53,940 --> 00:41:57,700
give effect to what Congress has done in
its choice to rely on the agency in that

669
00:41:57,700 --> 00:42:02,115
regard. But I think what all of this shows
is that the constitutional attacks on

670
00:42:02,115 --> 00:42:06,195
Chevron and the suggestion that it's
egregiously wrong in that regard lack merit

671
00:42:06,195 --> 00:42:10,035
because there is no constitutional
distinction between that kind of expressed

672
00:42:10,035 --> 00:42:13,635
delegation and the delegations
recognized in Chevron.

673
00:42:14,130 --> 00:42:18,610
If congress can expressly vest an agency
with authority to interpret the law through

674
00:42:18,610 --> 00:42:22,610
an express delegation, then it can do the
same thing implicitly, especially in a

675
00:42:22,610 --> 00:42:26,935
world where congress has to provide the
agency with the express authority to carry

676
00:42:26,935 --> 00:42:30,455
the statute into operation with
the force and effect of law.

677
00:42:30,695 --> 00:42:35,095
Now we can debate, of course, whether
Chevron drew the right line in identifying

678
00:42:35,095 --> 00:42:37,335
exactly when these
delegations have occurred.

679
00:42:37,415 --> 00:42:41,015
I think the court got that right for all
of the reasons I've tried to explain this

680
00:42:41,015 --> 00:42:45,300
morning. But I I think it's important to
recognize that that debate doesn't have a

681
00:42:45,300 --> 00:42:48,580
constitutional dimension to it
that falls out of the equation.

682
00:42:48,740 --> 00:42:52,180
Instead, it's just a question of whether
the court drew the right line in

683
00:42:52,180 --> 00:42:54,180
identifying when a
delegation has occurred.

684
00:42:54,495 --> 00:42:58,415
And if you recognize that, then I think
what's left over are the practical concerns

685
00:42:58,415 --> 00:43:00,095
that have been raised about Chevron.

686
00:43:00,095 --> 00:43:03,375
And I don't wanna diminish the force of the
concerns that some members of the court

687
00:43:03,375 --> 00:43:07,135
have articulated, but I also think
that those concerns are manageable.

688
00:43:07,520 --> 00:43:10,800
The court could do in this
case what it did in Kaiser.

689
00:43:10,800 --> 00:43:16,000
It could clarify and articulate the limits
of Chevron deference without taking the

690
00:43:16,000 --> 00:43:19,120
drastic step of upending
decades of settled precedent.

691
00:43:19,280 --> 00:43:20,960
And I think that's the
right thing to do here.

692
00:43:20,960 --> 00:43:24,855
You know, my my friends in their briefs
both said judges should aspire to be like

693
00:43:24,855 --> 00:43:27,095
umpires calling balls and strikes.

694
00:43:27,255 --> 00:43:30,615
But stare decisis is part of
the rules of the game here too.

695
00:43:30,695 --> 00:43:34,455
And in this case, I think all of the
stare decisis factors counsel in favor of

696
00:43:34,455 --> 00:43:36,935
retaining Chevron. I welcome
the court's questions.

697
00:43:37,590 --> 00:43:41,750
How do you... How do we discern statute...

698
00:43:41,750 --> 00:43:44,790
Delegation from statutory silence?

699
00:43:45,350 --> 00:43:49,670
So, justice Thomas, I think that it would
be wrong to suggest that you can neatly

700
00:43:49,845 --> 00:43:54,325
categorize cases as those involving
silence and those involving ambiguity.

701
00:43:54,405 --> 00:43:58,485
And and the reason for that, I recognize
that that Chevron itself used both of those

702
00:43:58,485 --> 00:44:01,845
terms, but I think that the court was just
trying to be comprehensive about those

703
00:44:01,845 --> 00:44:06,090
kinds of circumstance where congress
hasn't itself directly resolved an issue.

704
00:44:06,170 --> 00:44:08,650
There's never gonna be
total silence in a statute.

705
00:44:08,810 --> 00:44:12,490
At the very least, the agency is going to
have to be able to point to the expressed

706
00:44:12,490 --> 00:44:16,890
delegation of rulemaking authority, the
directive from congress to put the statute

707
00:44:16,890 --> 00:44:18,615
into effect with the force of law.

708
00:44:18,615 --> 00:44:21,415
So that will always be at least
a baseline in this context.

709
00:44:21,655 --> 00:44:25,255
And then in the mine run case, you'll be
able to point to any number of additional

710
00:44:25,255 --> 00:44:28,775
features of a statute that help
to signal the agency's authority.

711
00:44:28,775 --> 00:44:32,215
And, actually, this case is the perfect
example because my friend said that the

712
00:44:32,215 --> 00:44:36,430
Magnuson Stephensons Act here is silent on
the issue of whether the industry can be

713
00:44:36,430 --> 00:44:40,510
required to pay for monitors. But we have
four different provisions of the act that

714
00:44:40,510 --> 00:44:43,230
we've pointed to that undergird
the agency's authority.

715
00:44:43,390 --> 00:44:48,045
There's the provision that expressly says
that the agency can require the vessels to

716
00:44:48,045 --> 00:44:52,525
carry the monitors. Then there's the the
definition of what a monitor is under the

717
00:44:52,525 --> 00:44:55,085
statute. It can include
a private third party.

718
00:44:55,245 --> 00:44:58,685
Then there's the penalty provision that
says, in a circumstance where the vessel

719
00:44:58,685 --> 00:45:02,770
owner has contracted with a private
third party and not paid, the agency can

720
00:45:02,770 --> 00:45:07,330
penalize. And finally, there's the
residual authority to enact necessary and

721
00:45:07,330 --> 00:45:09,410
appropriate terms in these
fishery management plans.

722
00:45:09,410 --> 00:45:11,570
So we don't think that this is
a case about silence at all.

723
00:45:11,570 --> 00:45:13,010
General, yeah, that's really good.

724
00:45:13,010 --> 00:45:17,525
Again, we're back to the same question
the chief had of of mister Clement.

725
00:45:17,525 --> 00:45:20,085
That's a really good statutory
interpretation argument.

726
00:45:20,085 --> 00:45:24,885
Sounds like exactly the bread and butter
of what we do every single day, and we can

727
00:45:24,885 --> 00:45:26,245
resolve that. Right?

728
00:45:26,325 --> 00:45:30,000
We think that you could find that
the statute clear, but I think that

729
00:45:30,160 --> 00:45:34,720
The fact that you think it's clear and mister
Clement thinks it's clear, but a court

730
00:45:34,720 --> 00:45:37,840
below thought it was ambiguous should
tell us something, shouldn't it?

731
00:45:38,000 --> 00:45:41,600
No. I disagree with that. And I should say
that I think, actually, if you look at

732
00:45:41,600 --> 00:45:44,985
both what the DC Circuit and the First
Circuit were doing in these cases, they

733
00:45:44,985 --> 00:45:46,985
recognize the force of the arguments.

734
00:45:47,065 --> 00:45:51,065
The DC Circuit, it's true, and Loeber
Bride acknowledged that, ultimately, it

735
00:45:51,065 --> 00:45:54,905
couldn't conclude with confidence that the
statute definitely authorized the agency

736
00:45:54,905 --> 00:45:55,545
explicitly.

737
00:45:55,545 --> 00:45:56,665
But you think it does?

738
00:45:56,745 --> 00:45:58,470
We think that there is
a lot in the statute

739
00:45:58,470 --> 00:45:59,510
to Do you think Yes.

740
00:45:59,590 --> 00:46:00,790
Support the agency's interpretation.

741
00:46:00,870 --> 00:46:03,270
Think you win under step one,
and so does mister Clement.

742
00:46:03,270 --> 00:46:04,270
Yeah. Here we are.

743
00:46:04,310 --> 00:46:07,670
I don't think it's at all unusual to find
a case where the government thinks it has

744
00:46:07,670 --> 00:46:11,590
both the the the clear interpretation of
the statute on its side and that the agency

745
00:46:11,590 --> 00:46:12,215
has acted reasonably.

746
00:46:12,215 --> 00:46:17,335
Because we have this ambiguous ambiguity
trigger that nobody knows what it means.

747
00:46:17,335 --> 00:46:18,215
Well, just

748
00:46:18,215 --> 00:46:21,655
Now let me just ask you about the
delegation, your your your example in in the

749
00:46:21,655 --> 00:46:22,935
opening, which is interesting.

750
00:46:23,015 --> 00:46:24,015
Yeah.

751
00:46:24,140 --> 00:46:27,900
I I totally understand a
statute that does delegate.

752
00:46:28,620 --> 00:46:34,860
You know, you make up what rate you think,
and and and that might pose a delegation

753
00:46:34,860 --> 00:46:38,300
problem. It might not. Fine.
But we know congress delegated.

754
00:46:38,745 --> 00:46:44,505
That's one thing. What you're asking us to
do is infer from a linguistic ambiguity

755
00:46:44,505 --> 00:46:47,705
that may not be the product
of any intent at all.

756
00:46:48,505 --> 00:46:52,665
Pulsar. And might mean or
in some circumstances.

757
00:46:53,380 --> 00:46:57,940
And infer from that not that we should go
to look at statutory context and other

758
00:46:57,940 --> 00:47:03,620
clues within the the statute itself to
determine who has the better reading, but the

759
00:47:03,620 --> 00:47:05,140
government should always win that case.

760
00:47:05,265 --> 00:47:07,425
No. Not at all. Of course, you should look

761
00:47:07,425 --> 00:47:09,345
at Connors. Seems to me
very different tool.

762
00:47:09,345 --> 00:47:11,025
Just to... Sorry. Just to finish up.

763
00:47:11,185 --> 00:47:15,985
I I understand the delegation in one context,
but I struggle to see that we should

764
00:47:15,985 --> 00:47:20,385
infer the fiction of delegation in
the second always and necessarily.

765
00:47:20,640 --> 00:47:25,440
So I I disagree that there is a fiction
of delegation in the circumstances that

766
00:47:25,440 --> 00:47:30,000
trigger Chevron. At the outset, I wanna
make perfectly clear that, of course, the

767
00:47:30,000 --> 00:47:34,000
statutory context and structure is one of
the important tools of interpretation that

768
00:47:34,000 --> 00:47:35,675
a court should use at step one.

769
00:47:35,675 --> 00:47:39,595
So if we are in a world where the court can
walk through those factors and ascertain

770
00:47:39,595 --> 00:47:43,195
that congress spoke to the issue,
let me just be very clear.

771
00:47:43,275 --> 00:47:46,555
We recognize the court then should give
effect to what congress is saying.

772
00:47:46,715 --> 00:47:50,720
And if what you're suggesting then is that
in a world where Congress hasn't actually

773
00:47:50,720 --> 00:47:54,560
spoken to the issue, the court should
give no respect at all to the agency's

774
00:47:54,560 --> 00:47:59,520
interpretation, I disagree that that is
faithfully implementing Congress's intent.

775
00:47:59,520 --> 00:48:03,755
Because what Chevron recognized is in a
circumstance where Congress hasn't spoken to

776
00:48:03,755 --> 00:48:08,875
the issue, given the express grant of of
adjudicatory or rulemaking authority to the

777
00:48:08,875 --> 00:48:13,195
agency and necessarily recognize that the
agency is going to have to fill the gap

778
00:48:13,195 --> 00:48:16,475
along the way, it is perfectly sensible
to presume that Congress would want the

779
00:48:16,475 --> 00:48:17,330
agency to do it.

780
00:48:17,330 --> 00:48:20,770
Let me just ask you about Michigan versus
EPA too because that that had a very

781
00:48:20,770 --> 00:48:26,930
broad... Somewhere between the example you
gave of agency go forth and come up with

782
00:48:26,930 --> 00:48:31,090
rules and a linguistic ambiguity
about the meaning of the word and.

783
00:48:31,410 --> 00:48:35,545
And it said, essentially,
appropriate necessary.

784
00:48:36,025 --> 00:48:39,785
Yet the court found there were outer
boundaries even there that that can be

785
00:48:39,785 --> 00:48:40,665
exceeded. Right?

786
00:48:40,665 --> 00:48:44,105
Yes. Absolutely. And we're not
suggesting that in a world where you're

787
00:48:44,105 --> 00:48:44,505
at camp

788
00:48:44,505 --> 00:48:45,785
can do that. Right?

789
00:48:46,200 --> 00:48:50,680
But what I'm disputing is the idea that
there is always a binary answer either way

790
00:48:50,680 --> 00:48:53,080
rather than a vesting of discretion

791
00:48:53,240 --> 00:48:55,480
take a answer in Michigan versus EPA.

792
00:48:55,480 --> 00:48:58,520
Right? There was a particular agency
regulation that was under review.

793
00:48:58,520 --> 00:49:02,475
But if I understood my friend correctly
today, he seems to suggest that in all

794
00:49:02,475 --> 00:49:06,315
statutory contexts, you can look
and say, congress dictated it.

795
00:49:06,315 --> 00:49:10,475
There is a binary answer with respect to
broadband, or there's a binary answer with

796
00:49:10,475 --> 00:49:12,715
respect to how to define
stationary source.

797
00:49:12,875 --> 00:49:16,680
And what Chevron recognized and what I think
is just absolutely true as a matter of

798
00:49:16,680 --> 00:49:20,680
the on the ground realities and how congress
legislates is that congress doesn't

799
00:49:20,680 --> 00:49:22,680
actually decide all of these issues.

800
00:49:22,920 --> 00:49:27,080
What Chevron recognizes is that when congress
hasn't decided it and some follow on

801
00:49:27,080 --> 00:49:30,675
person is going to have to fill in the gap,
and it's a question of whether it should

802
00:49:30,675 --> 00:49:34,755
be the courts or the agency. There is a
presumption here that congress intended it

803
00:49:34,755 --> 00:49:38,435
to be the agency, but always subject to
those guardrails about making sure the

804
00:49:38,435 --> 00:49:39,875
agency's construction is reasonable.

805
00:49:39,875 --> 00:49:40,995
Mister Clement

806
00:49:42,200 --> 00:49:46,840
mister Clement suggested that we should
ignore Chevron because it didn't deal with

807
00:49:46,840 --> 00:49:52,520
seven zero six. Do you have a theory as
to why it didn't address seven zero six?

808
00:49:52,920 --> 00:49:57,445
And and how do you respond to
that part of his argument?

809
00:49:57,445 --> 00:50:01,605
Yes. So my theory for why Chevron didn't
address seven zero six is because seven

810
00:50:01,605 --> 00:50:06,565
zero six has never been understood at any
time at the time it was enacted or in any

811
00:50:06,565 --> 00:50:11,500
of the eight decades since to have dictated
a de novo standard of review for all

812
00:50:11,500 --> 00:50:13,500
statutory interpretation questions.

813
00:50:13,660 --> 00:50:17,340
So there was no inherent tension between
section seven zero six and Chevron.

814
00:50:17,420 --> 00:50:21,900
I think it's actually just further confirmation
of what the APA's own history shows.

815
00:50:21,900 --> 00:50:25,845
As I was trying to explain in the first
argument, you know, this is a situation

816
00:50:25,845 --> 00:50:29,765
where the court has recognized that the APA
wasn't meant to create dramatic changes.

817
00:50:30,005 --> 00:50:33,365
And it would have been a dramatic change
going from all of the deference principles

818
00:50:33,365 --> 00:50:37,445
that had been deployed, particularly
in cases of ambiguity in the case law,

819
00:50:37,445 --> 00:50:41,640
including immediately leading up to the
APA, to a de novo standard on a prospective

820
00:50:41,640 --> 00:50:46,120
basis going forward would have been a big
change in the relationship of how judicial

821
00:50:46,120 --> 00:50:48,120
review occurs for agency action.

822
00:50:48,280 --> 00:50:52,200
But no one mentioned that. No one suggested
at the time that that was the right way

823
00:50:52,200 --> 00:50:55,320
to interpret the APA. It's never
how this court has interpreted it.

824
00:50:55,555 --> 00:50:59,155
I think this is an important point, justice
Barrett, in response to your questions

825
00:50:59,155 --> 00:51:00,915
about the APA. You know, it...

826
00:51:00,915 --> 00:51:03,475
It's not as though this has
just been a one off decision.

827
00:51:03,475 --> 00:51:07,315
The court has had any number of
decisions over 70 applying Chevron.

828
00:51:07,650 --> 00:51:10,770
And I think in each and every one of those,
it's important to recognize that there

829
00:51:10,770 --> 00:51:15,970
hasn't been this kind of inherent tension
between the APA and Chevron itself, which

830
00:51:15,970 --> 00:51:19,570
just, I think, further shows the court's
own understanding of section seven zero six

831
00:51:19,570 --> 00:51:21,085
as entitled some weight here.

832
00:51:21,085 --> 00:51:26,205
So I have a question about the relationship
between Brandex and your suggestion that

833
00:51:26,205 --> 00:51:28,605
we Kaiserize Chevron, essentially.

834
00:51:29,005 --> 00:51:34,750
So I understand Brandex to say that a court
must let go of its best interpretation

835
00:51:34,750 --> 00:51:38,750
of a statute if an agency advances
an inferior but plausible one.

836
00:51:38,990 --> 00:51:43,310
But you told us that one way to handle this
would be to emphasize footnote nine and

837
00:51:43,310 --> 00:51:45,470
say what we said in the
Kaiser contracts...

838
00:51:45,470 --> 00:51:49,805
Context that no, You know, use all the
tools in the toolkit and come up with your

839
00:51:49,805 --> 00:51:54,925
best interpretation. So why wouldn't
adopting your approach require us to

840
00:51:54,925 --> 00:51:56,765
essentially repudiate brand x?

841
00:51:57,165 --> 00:52:02,810
So if you understand brand x to hold,
that the court can think it has a best

842
00:52:02,810 --> 00:52:06,250
interpretation, it has figured out what
Congress was saying about this issue and

843
00:52:06,250 --> 00:52:11,290
Congress spoke and nevertheless has to
adopt some inferior agency interpretation,

844
00:52:11,450 --> 00:52:13,050
then that is inconsistent
with our approach.

845
00:52:13,050 --> 00:52:14,945
We we don't read Brand X that way.

846
00:52:14,945 --> 00:52:19,345
I understand Brand X to be distinguishing
between step one and step two holdings.

847
00:52:19,505 --> 00:52:23,905
So if there is a step one holding where, in
fact, you know, the the court has got it

848
00:52:23,905 --> 00:52:28,000
at the end of the day and recognizes that
Congress spoke to the issue, there's no

849
00:52:28,000 --> 00:52:32,400
room under Brandecks to let an agency come
along after the fact and say the statute

850
00:52:32,400 --> 00:52:34,080
should be understood some different way.

851
00:52:34,160 --> 00:52:38,000
It's only in the circumstance where there
was Chevron deference granted under step

852
00:52:38,000 --> 00:52:42,320
two. And part and parcel of that is recognizing
that that's because the statute was

853
00:52:42,320 --> 00:52:46,575
interpreted at the first time to not actually
supply an answer dictated by congress

854
00:52:46,575 --> 00:52:48,415
and instead to give the agency direction.

855
00:52:48,415 --> 00:52:49,215
I'm sorry. Discretion.

856
00:52:49,215 --> 00:52:52,575
Have a best answer if
it's a step two question?

857
00:52:52,575 --> 00:52:56,990
I mean, it seems to me that having a best
answer suggests that you engaged in a

858
00:52:56,990 --> 00:53:00,030
question of statutory interpretation, came
up with your best answer, and it might

859
00:53:00,030 --> 00:53:05,550
just be really hard. So sometimes if a court
outside of the agency context confronts

860
00:53:05,550 --> 00:53:09,145
a difficult question of statutory
interpretation, it might say, look.

861
00:53:09,145 --> 00:53:12,185
I'm 90% confident or I'm 95% confident.

862
00:53:12,185 --> 00:53:15,865
But, I mean, I I think your reading of Brand
X might depend on what the trigger for

863
00:53:15,865 --> 00:53:17,305
ambiguity is. Right?

864
00:53:17,465 --> 00:53:21,625
Well, I I do think that it's kind of clearly
demarcating the lines between step one

865
00:53:21,625 --> 00:53:25,540
and step two holdings. And so at least
the the rules of the road are clear with

866
00:53:25,540 --> 00:53:29,300
respect to when an agency might have been
granted discretion to revisit its prior

867
00:53:29,300 --> 00:53:32,980
conclusions. You know, if you're suggesting
that there's a way to read Brand X to

868
00:53:32,980 --> 00:53:37,105
say that even in a circumstance factoring
into the equation the possibility that

869
00:53:37,105 --> 00:53:40,545
congress meant to delegate to the agency,
that there is a better interpretation, a

870
00:53:40,545 --> 00:53:44,065
best interpretation that congress actually
resolved it, I just don't think you would

871
00:53:44,065 --> 00:53:47,825
ever get into the Brand X scenario because
that sounds to me like a step one ruling.

872
00:53:47,905 --> 00:53:52,900
And I take the point that there is some
inherent, you know, lack of precision in a

873
00:53:52,900 --> 00:53:56,900
term like ambiguity. That's not something
that's uniquely created by Chevron, of

874
00:53:56,900 --> 00:54:00,660
course. There are ambiguity triggers in
the laws in in all kinds of contexts.

875
00:54:00,660 --> 00:54:04,740
But it's also that kind of indeterminacy
that might be worrying you is not anything

876
00:54:04,740 --> 00:54:06,695
that's cured by overruling Chevron.

877
00:54:06,695 --> 00:54:09,815
Because as I was saying to justice Kagan in
the first argument, I think it will just

878
00:54:09,815 --> 00:54:14,135
open up a world where there is a lot of
indeterminacy and inconsistency in how

879
00:54:14,135 --> 00:54:17,255
judges are applying the principles
in a case of ambiguity.

880
00:54:17,255 --> 00:54:21,220
On that on that point, some of the amicus
briefs and the briefs point out the

881
00:54:21,220 --> 00:54:23,860
experience of some of
the states with Chevron.

882
00:54:23,860 --> 00:54:29,220
Some states don't have Chevron, and other
states have had something like Chevron but

883
00:54:29,220 --> 00:54:32,900
have eliminated it in
recent years and decades.

884
00:54:32,900 --> 00:54:37,755
And their experience, they say, has shown
that it's plenty workable in such a

885
00:54:37,755 --> 00:54:40,315
regime. So I just wanna make
sure you can respond to that.

886
00:54:40,315 --> 00:54:44,955
Yes. So my understanding is about half
the states still have something akin to a

887
00:54:44,955 --> 00:54:47,915
principle of deference. There might be
some variance with respect to how much it

888
00:54:47,915 --> 00:54:52,180
looks like Chevron. But I acknowledge that
some states have abolished any form of

889
00:54:52,180 --> 00:54:54,020
deference to administrative agencies.

890
00:54:54,260 --> 00:54:58,180
I do think that there is a lot less concern
at the state level about the lack of

891
00:54:58,180 --> 00:55:02,580
uniformity or consistency. So one of
the values that Chevron implements and

892
00:55:02,580 --> 00:55:07,555
recognizes for why congress would prefer
for an agency to be able to set these rules

893
00:55:07,715 --> 00:55:11,475
and for the courts to respect that is the
value in ensuring that there are uniform

894
00:55:11,475 --> 00:55:14,915
rules throughout the country. And I don't
think that that same experience exists at

895
00:55:14,915 --> 00:55:17,955
the state level. And I would just add as
well, in a lot of states, I think the

896
00:55:17,955 --> 00:55:21,520
political accountability rationales could
differ as well because many state court

897
00:55:21,520 --> 00:55:22,640
judges are elected.

898
00:55:23,600 --> 00:55:28,080
Did I understand you in response to a
question from justice Thomas to say that

899
00:55:28,080 --> 00:55:30,640
Chevron doesn't apply to
constitutional questions?

900
00:55:31,775 --> 00:55:36,015
Yes. It's only a a doctrine that applies in
the context of statutory interpretation.

901
00:55:36,015 --> 00:55:39,855
Well, I know. But how you interpret statutes
certainly can have an effect in raising

902
00:55:39,855 --> 00:55:43,375
particular, First Amendment
questions or otherwise.

903
00:55:43,375 --> 00:55:44,895
And does it apply in that situation?

904
00:55:45,300 --> 00:55:47,380
Department of Education has some rule.

905
00:55:47,460 --> 00:55:52,420
This applies to, you know, all all
schools, you know, and it does...

906
00:55:52,420 --> 00:55:56,500
It can apply to religious schools because
this is how we interpret, you know,

907
00:55:56,500 --> 00:55:58,725
whatever the impact of the rule is.

908
00:55:58,725 --> 00:56:03,285
And when we interpret it that way, we
don't think it raises any, free exercise

909
00:56:03,605 --> 00:56:06,965
problems. So is there
Chevron deference there?

910
00:56:07,285 --> 00:56:11,840
So I think that if the... A particular
interpretation would create serious

911
00:56:11,840 --> 00:56:15,920
constitutional problems, then the doctrine
of constitutional avoidance is one of the

912
00:56:15,920 --> 00:56:20,080
traditional tools that the court can consult
in order to understand whether congress

913
00:56:20,080 --> 00:56:21,280
spoke to the issue. And Yeah.

914
00:56:21,280 --> 00:56:26,315
And the agency says we don't think this
causes particular, constitutional problems.

915
00:56:26,475 --> 00:56:29,515
That's our expertise about
how we apply this provision.

916
00:56:29,835 --> 00:56:33,035
And given that, we think there's
no pre exercise problem.

917
00:56:33,035 --> 00:56:36,795
No. A court would not defer to that
because this is all happening at step one.

918
00:56:36,795 --> 00:56:40,075
I think that this is part of the process
of the court determining whether congress

919
00:56:40,075 --> 00:56:43,880
spoke to the issue, the court has been very
clear that deference doesn't come in at

920
00:56:43,880 --> 00:56:45,560
all until you get to step two.

921
00:56:45,560 --> 00:56:49,880
So, for example, the agency's view that it
deserves Chevron deference, or, you know,

922
00:56:49,880 --> 00:56:55,415
it's kind of take on one of those step one
issues, it's not itself meritorious of

923
00:56:55,415 --> 00:56:57,495
getting any deference at
that stage of the case.

924
00:56:59,095 --> 00:57:03,575
I do wanna take another shot at trying
to explain why I believe petitioners are

925
00:57:03,575 --> 00:57:06,295
wrong to have characterized
Chevron as resting on a fiction.

926
00:57:06,750 --> 00:57:10,590
And I think what they have tried to say
is that this doesn't really reflect what

927
00:57:10,590 --> 00:57:14,350
congress is intending. But I see
three principal problems with that.

928
00:57:14,670 --> 00:57:19,150
The first is that I think that actually
looking at it from a a matter of first

929
00:57:19,150 --> 00:57:23,645
principles, there is a lot of merit and
weight to the recognition that in a

930
00:57:23,645 --> 00:57:28,045
situation of genuine ambiguity, there are
good reasons for congress to want to vest

931
00:57:28,045 --> 00:57:30,525
the expert agency with
this kind of authority.

932
00:57:30,925 --> 00:57:34,810
It's the recognition that agencies of
necessity are going to have to fill in the

933
00:57:34,810 --> 00:57:37,130
gaps, and many of these
programs are complex.

934
00:57:37,130 --> 00:57:41,770
They're technical. They're going to require
the agency to draw on its long standing

935
00:57:41,770 --> 00:57:45,850
experience with the program and the
expertise it's accumulated in working within

936
00:57:45,850 --> 00:57:50,415
that regulated industry in order to make
a sensible regulation that also will

937
00:57:50,415 --> 00:57:53,535
encompass, I think, inherently
some policy considerations.

938
00:57:53,775 --> 00:57:57,535
Congress would know that the agency can run
a centralized decision making process in

939
00:57:57,535 --> 00:58:02,415
doing this. Chevron only applies in
circumstances where there is a sufficient level

940
00:58:02,415 --> 00:58:04,510
of formality in the
agency's decision making.

941
00:58:04,510 --> 00:58:08,670
That's usually notice and comment rulemaking,
and that's a process where all comers

942
00:58:08,670 --> 00:58:11,870
can come in and tell the
agency, here are our views.

943
00:58:11,870 --> 00:58:13,950
Here's what you should think
about in terms of regulating.

944
00:58:14,030 --> 00:58:19,765
Notice That point is very important, it
seems to me, to your argument, because the

945
00:58:19,765 --> 00:58:24,325
the rationality of a supposition that
congress would want to favor the government

946
00:58:24,325 --> 00:58:29,685
rather than a supposition equally rational
that it would want to favor individual

947
00:58:29,685 --> 00:58:30,685
liberty

948
00:58:31,470 --> 00:58:35,870
is made a little more weighty if you assume
that the government's provided everybody

949
00:58:35,870 --> 00:58:38,270
a notice and opportunity to be heard.

950
00:58:38,750 --> 00:58:44,990
But often, the government seeks deference
for adjudications between individual

951
00:58:44,990 --> 00:58:51,335
parties and then apply that to everybody
without notice to them, or deference for

952
00:58:51,335 --> 00:58:57,335
interpretive rules for which no notice and
comment, let alone formal rulemaking or

953
00:58:57,335 --> 00:58:59,255
adjudicatory proceedings is required.

954
00:59:00,190 --> 00:59:05,310
And so there are many circumstances in which
the government does seek deference for

955
00:59:05,310 --> 00:59:12,030
a view of the law that affected parties
had no chance to be heard about.

956
00:59:12,395 --> 00:59:13,515
What do we do with that?

957
00:59:13,675 --> 00:59:18,555
So I think with respect to the category of
interpretive rules, it's it's true that

958
00:59:18,555 --> 00:59:21,275
the court hasn't ruled out that those
can receive deference in appropriate

959
00:59:21,275 --> 00:59:22,395
circumstances. But in

960
00:59:22,475 --> 00:59:24,315
So you'd have us kaiserize that?

961
00:59:24,475 --> 00:59:28,150
Well, I I would just have the court reiterate
what it said in Mead, which is it's

962
00:59:28,150 --> 00:59:31,590
not as though any agency
pronouncement is necessarily going to

963
00:59:31,590 --> 00:59:36,790
warrant a what Mead means. I mean, it's
got seven factors to it, and the lower

964
00:59:36,790 --> 00:59:38,710
courts complain about that too.

965
00:59:38,870 --> 00:59:40,885
So I'm not... I I don't I
don't know what that...

966
00:59:40,885 --> 00:59:43,525
I mean, you know, is that another
factor we're gonna add to Mead?

967
00:59:43,525 --> 00:59:47,765
I think that Mead is an important check
on ensuring not only that there's been a

968
00:59:47,765 --> 00:59:51,845
delegation here, but that the agency has
used the appropriate process and procedure

969
00:59:51,845 --> 00:59:52,165
Okay.

970
00:59:52,165 --> 00:59:54,670
So so interpretive rules
would be out under your new

971
00:59:54,750 --> 00:59:56,190
So I think they raise a
much harder question in

972
00:59:56,190 --> 00:59:59,710
this A harder question, but do they
rule in or out on your theory?

973
00:59:59,710 --> 01:00:02,110
I think the court has not
ruled them out under Meade.

974
01:00:02,270 --> 01:00:02,750
If you thought

975
01:00:02,750 --> 01:00:04,110
What would you have us do?

976
01:00:04,110 --> 01:00:06,030
I would have you retain
Meade, which recognizes

977
01:00:06,270 --> 01:00:09,415
What would you have us do with
interpretive rules my question, not Mead?

978
01:00:09,415 --> 01:00:10,695
I mean, I don't know what to do with Mead.

979
01:00:10,695 --> 01:00:12,535
Well, I don't think that you
can treat them as a class.

980
01:00:12,535 --> 01:00:15,575
I think it's going to depend on the nature
of the particular interpretive rule.

981
01:00:15,575 --> 01:00:16,295
And oftentimes

982
01:00:16,295 --> 01:00:18,455
notice is required, and
sometimes it isn't.

983
01:00:19,015 --> 01:00:20,695
How about how about adjudications?

984
01:00:20,695 --> 01:00:22,375
You keep those in, I'm sure.

985
01:00:22,695 --> 01:00:26,710
Yes. We certainly think that Chevron has
core application to adjudications, and I

986
01:00:26,710 --> 01:00:31,670
agree that in that circumstance, there's
not the same ability to take the, input

987
01:00:31,670 --> 01:00:35,510
from all comers. But the court has emphasized
that in the mine run case where it has

988
01:00:35,510 --> 01:00:39,615
been applying Chevron deference, there is
this possibility at least of a centralized

989
01:00:39,615 --> 01:00:43,855
decision making process in order to ensure
that the agency at least is gathering the

990
01:00:43,855 --> 01:00:45,695
facts and has the tools at its disposal.

991
01:00:45,695 --> 01:00:49,135
And the alternative to each of these,
justice Gorsuch, is to have the courts do it

992
01:00:49,135 --> 01:00:52,860
through piecemeal litigation. The very
least, I think that it's easy to see why

993
01:00:52,860 --> 01:00:57,100
congress might think that that is not as
good of an alternative in a circumstance

994
01:00:57,100 --> 01:01:00,940
where the court's pronouncements could
come out of nowhere with respect to a

995
01:01:00,940 --> 01:01:03,820
particular party. Now we have an
amicus brief from the small business

996
01:01:03,820 --> 01:01:05,900
Except for everybody gets
to litigate their case.

997
01:01:07,415 --> 01:01:07,975
Everybody.

998
01:01:07,975 --> 01:01:11,735
But I think that it's important to recognize
that particular decisions can have

999
01:01:11,735 --> 01:01:12,775
impacts on parties

1000
01:01:12,775 --> 01:01:18,055
who are outside precedent possibly within
that jurisdiction, but even that person

1001
01:01:18,055 --> 01:01:22,620
who's bound by the president can appeal
it all the way to the supreme court.

1002
01:01:22,620 --> 01:01:24,460
Everybody gets their day in court.

1003
01:01:25,180 --> 01:01:31,020
Absolutely. Under under your view, many
people without notice, any notice, or any

1004
01:01:31,020 --> 01:01:33,100
chance to be heard are bound.

1005
01:01:34,145 --> 01:01:39,025
No. So my concern and what I was focusing
on with respect to the prospect of

1006
01:01:39,025 --> 01:01:43,265
disrupting expectations with respect to
litigation is that it's not as though every

1007
01:01:43,265 --> 01:01:46,625
party who might stand to be affected by a
case is necessarily going to know about

1008
01:01:46,625 --> 01:01:50,040
it. Look at the amicus brief that was
filed by the Small Business Association.

1009
01:01:50,040 --> 01:01:50,440
Course, they're

1010
01:01:50,440 --> 01:01:54,040
not gonna have notice about somebody else's
case, but when the government comes for

1011
01:01:54,040 --> 01:01:57,080
them, they get to take
their case to court.

1012
01:01:57,080 --> 01:01:57,480
They get

1013
01:01:57,480 --> 01:01:59,320
a Obviously, when they are a party,

1014
01:01:59,320 --> 01:02:01,080
they have an opportunity appeal.

1015
01:02:01,545 --> 01:02:01,785
Okay.

1016
01:02:01,785 --> 01:02:05,705
But congress has often expressed a preference
for not having these kinds of issues

1017
01:02:05,705 --> 01:02:09,785
resolved piece by piece in different courts
around the country with the prospect of

1018
01:02:09,785 --> 01:02:11,065
the disuniformity that that

1019
01:02:11,065 --> 01:02:13,785
would be. Provided for, notice and...

1020
01:02:13,785 --> 01:02:16,025
Provided for formal and informal...

1021
01:02:16,185 --> 01:02:23,150
Formal rulemaking and adjudications,
and it anticipated most of rules would

1022
01:02:23,150 --> 01:02:25,390
be resolved that way.
In fact, they aren't.

1023
01:02:25,630 --> 01:02:31,575
For a long time, those processes haven't
been used, and and agencies rely on

1024
01:02:31,575 --> 01:02:34,215
informal adjudications
and informal rulemakings.

1025
01:02:34,215 --> 01:02:38,535
And really now today, perhaps is
a product of Chevron and two.

1026
01:02:39,255 --> 01:02:44,660
Agencies have have abdicated that and are
moving more and more toward interpretive

1027
01:02:44,660 --> 01:02:47,300
rules where they don't have to
provide notice and comment.

1028
01:02:47,380 --> 01:02:51,220
But I think that does circle us back to
the fact that the court has not suggested

1029
01:02:51,220 --> 01:02:54,260
that interpretive rules are necessarily
going to trigger deference.

1030
01:02:54,260 --> 01:02:58,095
And so I think at least in the mine run case
that this court has looked at, it's the

1031
01:02:58,095 --> 01:03:01,775
product of a formal process from the agency,
and I think it's an important process.

1032
01:03:01,775 --> 01:03:05,695
On the adjudications front, I think one
of the amicus briefs talked specifically

1033
01:03:05,695 --> 01:03:12,190
about the NLRB in particular and kinda
how that agency moves from pillar to post

1034
01:03:12,190 --> 01:03:18,830
fairly often and the concern raised
there because that is a situation you

1035
01:03:18,830 --> 01:03:24,595
you can't adjust your behavior ahead of
time necessarily based on a new rule, new

1036
01:03:24,595 --> 01:03:28,195
change in interpretation, what is done in
the particular case and affects the people

1037
01:03:28,195 --> 01:03:32,355
who didn't have notice. You know, any
response to that brief or that scenario or

1038
01:03:32,355 --> 01:03:33,875
wanna tell me why that's wrong?

1039
01:03:34,140 --> 01:03:39,340
Well, I guess my overarching response to
that set of concerns is that the agency has

1040
01:03:39,340 --> 01:03:44,060
to justify its decision making with
respect to whatever, tool it's using to

1041
01:03:44,060 --> 01:03:46,300
implement the statute in the
way that congress directed.

1042
01:03:46,625 --> 01:03:50,225
So if congress is telling the agency you
should adjudicate or you should conduct

1043
01:03:50,225 --> 01:03:53,505
notice and comment rulemaking or giving
it its authority to choose between those

1044
01:03:53,505 --> 01:03:57,905
tools, the agency in either context is
going to have to justify what it's doing.

1045
01:03:57,985 --> 01:04:01,585
And in particular, my friends have focused
a lot on the idea of agencies changing

1046
01:04:01,585 --> 01:04:04,040
their minds. There are
burdens in this context.

1047
01:04:04,040 --> 01:04:06,600
The agency has to take account
of reliance interests.

1048
01:04:06,680 --> 01:04:08,920
A lot of this gets put into
State Farm, of course.

1049
01:04:09,080 --> 01:04:13,080
But I think also at Chevron Step two with
respect to reasonableness, a court can

1050
01:04:13,080 --> 01:04:15,560
permissibly take those kinds of
considerations into account.

1051
01:04:16,145 --> 01:04:16,705
Thank you.

1052
01:04:16,705 --> 01:04:21,425
Did you wanna finish your answer about what
you would say to, your friend's view of

1053
01:04:21,665 --> 01:04:23,025
fictionalized intent?

1054
01:04:23,025 --> 01:04:26,785
Yes. So I was trying to defend Chevron as
a matter of first principles, and that was

1055
01:04:26,785 --> 01:04:28,545
kind of the first order answer on this.

1056
01:04:28,590 --> 01:04:33,630
There are often really good reasons why
Congress would want an expert agency to take

1057
01:04:33,630 --> 01:04:36,910
the first crack at filling in the
law, and there's no way around it.

1058
01:04:36,910 --> 01:04:39,950
If the agency is administering the
statute, the agency has got to do it.

1059
01:04:39,950 --> 01:04:43,695
And this court has said that a core feature
of executing the law is interpreting

1060
01:04:43,695 --> 01:04:47,375
statutes along the way, understanding
for the agency what the law means.

1061
01:04:47,695 --> 01:04:52,335
The second point I wanted to make is that
even in the situation where you think

1062
01:04:52,335 --> 01:04:56,830
there's more room for doubt about exactly
what was happening in 1984 and what

1063
01:04:56,830 --> 01:05:01,230
congress would have expected, this is a
really foundational precedent from the

1064
01:05:01,230 --> 01:05:05,790
court. It's not like Chevron has flown under
the radar and congress is unaware of it

1065
01:05:05,790 --> 01:05:09,775
and doesn't realize it's out there and kind
of setting the ground rules for how this

1066
01:05:09,775 --> 01:05:12,975
court and lower courts are going to
understand what congress is doing.

1067
01:05:13,295 --> 01:05:17,055
This is one of the most frequently
cited decisions from the court.

1068
01:05:17,135 --> 01:05:21,135
And in that context in particular, I would
think that the inference of legislative

1069
01:05:21,135 --> 01:05:25,440
intent becomes all the more sound because
Congress has not chosen to displace it.

1070
01:05:25,760 --> 01:05:30,080
And as well, it triggers, I think, that
critical strong form of stare decisis that

1071
01:05:30,080 --> 01:05:34,000
the court applied in Kaiser when it recognized
that in a situation where Congress is

1072
01:05:34,000 --> 01:05:38,155
actually the best institutional actor
to do something about it, it matters.

1073
01:05:38,155 --> 01:05:41,675
It matters that congress hasn't sought to
change Chevron in any kind of fundamental

1074
01:05:41,675 --> 01:05:42,675
way.

1075
01:05:44,715 --> 01:05:45,915
Thank you, counsel.

1076
01:05:47,355 --> 01:05:48,355
Anything further?

1077
01:05:48,980 --> 01:05:50,020
I do have one more.

1078
01:05:50,020 --> 01:05:51,620
I'm sorry. I I I do. I'm sorry.

1079
01:05:51,620 --> 01:05:54,740
Sorry. Sorry. Sorry. I was
waiting for us to go around.

1080
01:05:55,620 --> 01:06:01,460
I know this is not in the heady, intellectual
question, but how do you respond to

1081
01:06:01,460 --> 01:06:06,645
mister Clement's point about the interpretation
of this particular statute and his

1082
01:06:06,645 --> 01:06:12,165
reliance on the theory that this congress
definitely, when it capped a big industry

1083
01:06:12,165 --> 01:06:18,430
paying two or 3%, whatever the number is,
would not have wanted small fishermen to

1084
01:06:18,430 --> 01:06:19,470
pay 20%?

1085
01:06:19,790 --> 01:06:21,950
So I have a range of reactions to that.

1086
01:06:22,190 --> 01:06:25,630
My first is, as I was suggesting
to justice Gorsuch, we think...

1087
01:06:25,630 --> 01:06:29,870
And to justice Thomas, we think that there
is a lot in this statute to support the

1088
01:06:29,870 --> 01:06:32,615
agency's exercise of
regulatory authority here.

1089
01:06:32,615 --> 01:06:36,055
And I wanna point in particular to the
penalty provision, which specifically

1090
01:06:36,055 --> 01:06:41,975
contemplates that the the regulated vessels
might have a contractual relationship

1091
01:06:41,975 --> 01:06:46,730
with third party monitors and therefore
might be in a situation where they haven't

1092
01:06:46,730 --> 01:06:50,330
paid. And it says the secretary
can sanction in that circumstance.

1093
01:06:50,330 --> 01:06:54,570
So it's premised on the idea that there
will be certain circumstances when there is

1094
01:06:54,570 --> 01:06:55,530
that direct relationship.

1095
01:06:55,530 --> 01:07:00,145
Just as a footnote in the schedule, in
the way that congress did the other two

1096
01:07:00,145 --> 01:07:03,745
monitors, they were always government
monitors, not independent monitors.

1097
01:07:03,745 --> 01:07:04,465
Correct?

1098
01:07:04,465 --> 01:07:08,545
Yes. So in the... This... There are three
fee based programs that my my friends have

1099
01:07:08,545 --> 01:07:11,745
relied on to try to support this idea that
there's a negative inference you should

1100
01:07:11,745 --> 01:07:15,840
draw from the statute. Two of those apply
in the domestic context, and those operate

1101
01:07:15,840 --> 01:07:18,400
as pure fee based programs.
So it's very different.

1102
01:07:18,560 --> 01:07:20,400
Ultimately, they pay
fees to the government.

1103
01:07:20,400 --> 01:07:23,680
The government provides a range of
services, including providing the monitors,

1104
01:07:23,680 --> 01:07:27,200
entering into the contractual relationship,
and having those monitors be government

1105
01:07:27,200 --> 01:07:32,985
contractors. And those programs also pay
for, particular administrative expenses

1106
01:07:32,985 --> 01:07:35,545
that would not be a part of this program.

1107
01:07:36,025 --> 01:07:40,265
The the foreign vessel program likewise
operates in this fee based way.

1108
01:07:40,345 --> 01:07:44,170
There is a residual part of that program
which contemplates that in a circumstance

1109
01:07:44,170 --> 01:07:48,410
where there aren't sufficient funds, it
might be possible that the regulated vessel

1110
01:07:48,410 --> 01:07:52,010
will then, through a supplementary
authority, be required to contract with the

1111
01:07:52,010 --> 01:07:54,810
monitors directly. And I think my friends
would say, well, that's the whole

1112
01:07:54,810 --> 01:07:56,330
explanation for the penalty provision.

1113
01:07:56,825 --> 01:08:01,465
But it doesn't work because congress put
that penalty provision in an overarching

1114
01:08:01,465 --> 01:08:04,745
section of the act that applies
to domestic vessels too.

1115
01:08:04,825 --> 01:08:08,425
If this was really just meant to be a
tendril to tack on to the foreign vessel

1116
01:08:08,425 --> 01:08:10,665
program, that would be
completely inexplicable.

1117
01:08:11,000 --> 01:08:14,360
So I think that they don't have a persuasive
response to the penalty provisions

1118
01:08:14,360 --> 01:08:19,640
here. And they say, to to wrap this up,
that, you know, that it's it's unheard of to

1119
01:08:19,640 --> 01:08:22,200
charge 20%. I do wanna be really clear.

1120
01:08:22,280 --> 01:08:26,095
They are latching on to a part of the rule
that acknowledged that earlier versions

1121
01:08:26,095 --> 01:08:30,015
or studies had suggested that costs
could go potentially up to 20%.

1122
01:08:30,175 --> 01:08:32,255
But then the agency acted
in response to that.

1123
01:08:32,255 --> 01:08:34,735
It created waivers. It created exemptions.

1124
01:08:34,735 --> 01:08:38,335
And with respect to some of the types of
phishing at issue in these cases, the

1125
01:08:38,335 --> 01:08:40,895
estimated costs were more
in the range of two to 3%.

1126
01:08:41,350 --> 01:08:44,950
So it's... This is all, you know, something
that courts can look at and review.

1127
01:08:45,030 --> 01:08:48,630
They, in fact, pressed arguments that this
rule was arbitrary and capricious for

1128
01:08:48,630 --> 01:08:50,870
neglecting to give full
attention to the costs.

1129
01:08:50,870 --> 01:08:53,670
The lower courts rejected those
arguments, and I think rightly so.

1130
01:08:55,065 --> 01:08:56,185
Justice Kagan?

1131
01:08:56,585 --> 01:09:00,105
Justice Barrett asked before
about Kaiser rising Chevron.

1132
01:09:00,105 --> 01:09:02,505
And I just wanted to ask,
what would that mean?

1133
01:09:02,505 --> 01:09:07,560
I mean, would it mean doing exactly what
Kaiser did to our deference, to Chevron

1134
01:09:07,560 --> 01:09:11,000
deference? Would there be
adjustments that would be necessary?

1135
01:09:11,320 --> 01:09:14,440
Would one want to go
further in any respect?

1136
01:09:14,600 --> 01:09:17,000
What what does it mean
to Kaiserize Chevron?

1137
01:09:17,240 --> 01:09:21,575
So I think that the court in this case,
if it has some concerns about the

1138
01:09:21,575 --> 01:09:26,295
implementation issues, could do four critical
things, which draw heavily on Kaiser

1139
01:09:26,295 --> 01:09:28,615
but I think look a little
different in their particulars.

1140
01:09:28,855 --> 01:09:32,855
The first thing the court could do would be
to reemphasize the rigor of the step one

1141
01:09:32,855 --> 01:09:35,255
analysis. Now this is drawn
directly from Kaiser.

1142
01:09:35,255 --> 01:09:39,110
As I mentioned before, we've seen results
in the lower courts where they are now

1143
01:09:39,190 --> 01:09:41,590
following this court's
direction with respect to that.

1144
01:09:41,750 --> 01:09:45,910
So in this regard, what the court would be
saying is don't wave the ambiguity flag

1145
01:09:45,910 --> 01:09:49,830
too readily. Don't give up just because
the statute is dense or hard to parse.

1146
01:09:50,245 --> 01:09:54,165
Instead, there are a lot of hard questions
out there that can be solved and reveal

1147
01:09:54,165 --> 01:09:58,085
congress' intent if the court applies all
of the tools and really exhaust them.

1148
01:09:58,245 --> 01:10:00,485
So that would take care of
a whole category of cases.

1149
01:10:00,885 --> 01:10:04,645
Then at step two, I think the court could
again do what it did in Kaiser, which was

1150
01:10:04,645 --> 01:10:08,530
to reinforce that reasonableness
is not just anything goes.

1151
01:10:08,610 --> 01:10:11,970
And justice Gorsuch, I think, at times has
said it just means the government wins,

1152
01:10:12,050 --> 01:10:14,130
but that is not actually the standard.

1153
01:10:14,370 --> 01:10:18,050
Even at that step two stage, it's obviously
deferential, but the court should be

1154
01:10:18,050 --> 01:10:21,705
enforcing any outer bounds in the statute
and making sure that the agency hasn't

1155
01:10:21,705 --> 01:10:25,625
transgressed those. I think the third
thing the court could do is emphasize that

1156
01:10:25,625 --> 01:10:30,345
this whole enterprise only gets off the
ground in a Meade type situation where you

1157
01:10:30,345 --> 01:10:34,905
have the agency being directly empowered
by congress to speak with the force of law

1158
01:10:35,060 --> 01:10:39,700
and then exercising appropriately a formal
level of authority in implementing the

1159
01:10:39,700 --> 01:10:43,300
statute. And so I think that that is an
important principle as well that there are

1160
01:10:43,300 --> 01:10:48,340
certain contexts in which the agency is not
actually speaking with the force of law

1161
01:10:48,340 --> 01:10:52,685
or in a way that would be fitting with
the delegation Congress has provided.

1162
01:10:53,005 --> 01:10:55,725
And then finally, the fourth thing that
the court could do, and I think this is a

1163
01:10:55,725 --> 01:11:00,525
little bit different from Kaiser, would be
to emphasize that it's always important

1164
01:11:00,525 --> 01:11:04,925
to look at any other statutory indication
that Chevron deference was not meant to

1165
01:11:04,925 --> 01:11:09,700
apply. And what I'm thinking here of are
are things like situations where the nature

1166
01:11:09,700 --> 01:11:13,940
of the statutory question, as the court has
said in other cases, isn't one where you

1167
01:11:13,940 --> 01:11:16,180
would expect congress to
give that to the agency.

1168
01:11:16,260 --> 01:11:19,855
There's a flavor of this in the major
questions doctrine case, I and don't wanna

1169
01:11:19,855 --> 01:11:24,015
rule out other scenarios that could come up
because part of our our central argument

1170
01:11:24,015 --> 01:11:27,455
here is congress can
adjust. Congress can react.

1171
01:11:27,535 --> 01:11:31,535
Congress can take statute specific steps,
and so courts should pay attention to

1172
01:11:31,535 --> 01:11:34,450
that. And there is nothing in Chevron
that dictates that this presumption is

1173
01:11:34,450 --> 01:11:37,010
irrevocable. Instead,
it's fully rebuttable.

1174
01:11:37,010 --> 01:11:41,250
And is there anything you would say about
the matter of changed interpretations?

1175
01:11:41,730 --> 01:11:46,530
So I think that changed interpretations
already are an area where the agency is

1176
01:11:46,530 --> 01:11:49,455
under additional burdens to
justify its decision making.

1177
01:11:49,455 --> 01:11:50,895
I think they get a harder look.

1178
01:11:51,055 --> 01:11:55,455
And the court has made clear that in a
circumstance where an agency is changing its

1179
01:11:55,455 --> 01:11:59,375
regulatory approach, one of the things
it has to do is take full account of the

1180
01:11:59,375 --> 01:12:04,340
reliance interests and explain why those
shouldn't alter what it's doing in in in

1181
01:12:04,340 --> 01:12:08,580
the kind of revised approach. The agency
also frequently, if it's come from a notice

1182
01:12:08,580 --> 01:12:12,100
and comment rulemaking, has to
run that process all over again.

1183
01:12:12,180 --> 01:12:14,260
That's a a time intensive process.

1184
01:12:14,260 --> 01:12:17,285
It takes substantial investment
of agency resources.

1185
01:12:17,445 --> 01:12:21,125
So I think in that context too, the court
could police the bounds of that and make

1186
01:12:21,125 --> 01:12:25,045
sure that the agency is following the
procedural requirements to ensure that it's

1187
01:12:25,045 --> 01:12:28,805
informed decision making. But at the end
of the day, if the agency can run the

1188
01:12:28,805 --> 01:12:33,340
gauntlet and survive those hurdles, then
the fact that it has some discretion under

1189
01:12:33,340 --> 01:12:37,260
the statute to change its approach, I
think, is not something to say is is, you

1190
01:12:37,260 --> 01:12:38,860
know, kind of a bug in the statute.

1191
01:12:38,860 --> 01:12:42,940
Instead, it's a feature because there are
all kinds of circumstances where congress

1192
01:12:42,940 --> 01:12:47,355
would want to give the agency the ability
to adapt to changing circumstances, to new

1193
01:12:47,355 --> 01:12:51,355
factual information, or to the experience
it's accumulated under the prior program.

1194
01:12:51,675 --> 01:12:52,675
Thank you.

1195
01:12:52,795 --> 01:12:57,675
Justice Gorsuch, justice Kavanaugh,
justice Barrett, thank you, counsel.

1196
01:12:57,675 --> 01:12:58,795
Rebuttal, mister Clement.

1197
01:13:00,490 --> 01:13:02,410
Just a few points in rebuttal, your honor.

1198
01:13:02,410 --> 01:13:04,730
First, my friend started
with express delegations.

1199
01:13:04,730 --> 01:13:08,970
I think express delegations show all the
problems with this fictional implied

1200
01:13:08,970 --> 01:13:12,490
delegation. Because the great thing about
an express delegation is you have some

1201
01:13:12,490 --> 01:13:17,105
text. What an express delegation generally
does textually is delegate implementing

1202
01:13:17,105 --> 01:13:21,025
or executing authority. It doesn't do
what Chevron purports to do, which is to

1203
01:13:21,025 --> 01:13:23,105
delegate interpretive authority.

1204
01:13:23,185 --> 01:13:25,825
But better yet, once you have text,
you can put limits on the text.

1205
01:13:26,100 --> 01:13:29,140
And Michigan against EPA is
a perfect example of that.

1206
01:13:29,300 --> 01:13:33,220
And, of course, all of these delegations
do raise article one nondelegation

1207
01:13:33,220 --> 01:13:36,420
concerns. And if you have text,
can check for that as well.

1208
01:13:36,420 --> 01:13:40,485
But I can't think of anything that's more
antithetical to an intelligible principle

1209
01:13:40,485 --> 01:13:45,525
than ambiguity and silence. And I will
say in terms of the the, you know, this

1210
01:13:45,525 --> 01:13:47,365
premise, I think it's entirely fictional.

1211
01:13:47,365 --> 01:13:52,085
I think in most cases, a statute is
ambiguous because the proponent did not have

1212
01:13:52,085 --> 01:13:54,085
enough votes to make it any clearer.

1213
01:13:54,530 --> 01:13:58,050
My friend at one point said that I view
the whole world as every statute has a

1214
01:13:58,050 --> 01:14:01,090
binary answer. To be clear,
my position was the opposite.

1215
01:14:01,090 --> 01:14:04,290
There are statutes like that,
reasonableness, appropriateness.

1216
01:14:04,370 --> 01:14:09,195
There are also things like information
services, telecommunication services, a

1217
01:14:09,195 --> 01:14:13,515
service adviser. Is it a salesperson who
is involved in the servicing of cars?

1218
01:14:13,515 --> 01:14:16,155
I'd say yes, but you could
say no, but it's binary.

1219
01:14:16,235 --> 01:14:20,315
The terrible thing about Chevron is it can't
tell the two apart because at a certain

1220
01:14:20,315 --> 01:14:21,835
point, they both look ambiguous.

1221
01:14:22,090 --> 01:14:24,490
But if you... What... You know
what can tell the two apart?

1222
01:14:24,490 --> 01:14:26,730
Good old fashioned statutory construction.

1223
01:14:26,810 --> 01:14:29,290
Find out as the courts
what the words mean.

1224
01:14:29,370 --> 01:14:32,410
Reasonable is a term of
capaciousness and elasticity.

1225
01:14:32,490 --> 01:14:34,410
Telecommunication service is not.

1226
01:14:34,410 --> 01:14:37,690
Good old fashioned statutory
interpretation can do the job.

1227
01:14:38,145 --> 01:14:43,425
Now let me say the... Thing about the mystery
of why section seven zero six did not

1228
01:14:43,425 --> 01:14:45,024
appear in the Chevron decision.

1229
01:14:45,105 --> 01:14:48,544
There's a really easy answer.
It was a clean air act case.

1230
01:14:48,785 --> 01:14:53,090
The court sort of stumbled into these
pronouncements about how as a meta matter you

1231
01:14:53,090 --> 01:14:55,250
should go about statutory consideration.

1232
01:14:55,410 --> 01:15:00,210
It was a mistake. It didn't wrestle
with the relevant statute at all.

1233
01:15:00,450 --> 01:15:04,690
That is a special justification to revisit
the decision and to get the decision

1234
01:15:04,690 --> 01:15:07,675
right. Let me say one
word about expertise.

1235
01:15:07,675 --> 01:15:11,835
Expertise and deference do not have to go
hand in hand in a way that precludes de

1236
01:15:11,835 --> 01:15:14,075
novo review. We have
things called tax courts.

1237
01:15:14,075 --> 01:15:15,835
We have things called bankruptcy courts.

1238
01:15:15,835 --> 01:15:17,515
We have the court of international trade.

1239
01:15:17,515 --> 01:15:19,595
They all deal with technical
specialized issues.

1240
01:15:19,820 --> 01:15:23,260
Every one of them, the legal
questions are reviewed de novo.

1241
01:15:23,260 --> 01:15:26,140
That's the basic understanding
with a statute like seven seven...

1242
01:15:26,140 --> 01:15:29,260
Section seven zero six.
Lastly, let me say this.

1243
01:15:29,260 --> 01:15:34,700
You cannot Kaiserize the Chevron
doctrine without overruling brand x.

1244
01:15:35,235 --> 01:15:39,395
The fact that you could take into account
if the agency had flip flopped was part of

1245
01:15:39,395 --> 01:15:43,315
the rationale of Kaiser money
factors before you applied Auer.

1246
01:15:43,315 --> 01:15:46,515
That is a feature, my
friend correctly admits.

1247
01:15:46,515 --> 01:15:51,140
That is a feature of the Chevron doctrine,
and you really can't kaiserize it without

1248
01:15:51,140 --> 01:15:55,220
overruling brand x. And if you're overruling
brand x, well then stare decisis just

1249
01:15:55,220 --> 01:15:58,100
went out the window and we
might as well get this right.

1250
01:15:58,500 --> 01:16:02,473
Chevron imposed a two step rubric
that was fundamentally flawed.

1251
01:16:02,473 --> 01:16:08,553
The right answer here is a one step rubric
that simply asks, how is the statute best

1252
01:16:08,553 --> 01:16:09,673
read? Thank you.

1253
01:16:09,993 --> 01:16:11,433
Thank you, counsel general.

1254
01:16:11,433 --> 01:16:11,833
The case

1255
01:16:11,833 --> 01:16:12,833
is submitted.