WEBVTT 00:00:00.080 --> 00:00:06.800 You'll hear argument next in case 22451, Loper Bright Enterprises versus Raimondo. 00:00:06.800 --> 00:00:07.800 Mister Clement. 00:00:07.840 --> 00:00:12.640 Mister chief justice, and may it please the court, this case well illustrates the 00:00:12.640 --> 00:00:17.795 real world cost of Chevron, which do not fall exclusively on the chevrons of the 00:00:17.795 --> 00:00:21.475 world but injure small businesses and individuals as well. 00:00:21.795 --> 00:00:24.995 Commercial fishing is hard. Space onboard vehicle... 00:00:24.995 --> 00:00:27.955 Vessels is tight, and margins are tighter still. 00:00:29.300 --> 00:00:33.460 Therefore, for the for the... For my clients, having to carry federal observers on 00:00:33.460 --> 00:00:38.100 board is a burden, but having to pay their salaries is a crippling blow. 00:00:38.260 --> 00:00:43.465 Congress recognized as much by strictly limiting the circumstances in which domestic 00:00:43.465 --> 00:00:48.665 fishing vessels could be saddled with monitoring costs and capping them at two to 3% 00:00:48.665 --> 00:00:54.185 of the value of the catch. But the agency here showed no such restraint, requiring 00:00:54.185 --> 00:00:59.150 monitoring on 50% of the trips at a cost of up 20% of their annual returns. 00:00:59.310 --> 00:01:04.030 Nonetheless, the court below deferred to the agency because it viewed the statute as 00:01:04.030 --> 00:01:05.870 silent on the who pays question. 00:01:06.350 --> 00:01:10.830 There is no justification for giving the tide of the government or conjuring agency 00:01:10.830 --> 00:01:16.065 authority from silence. Both the APA and constitutional avoidance principles call 00:01:16.065 --> 00:01:20.785 for de novo review, asking only what's the best reading of the statute. 00:01:21.105 --> 00:01:25.265 Asking instead, is the statute ambiguous, is fundamentally misguided. 00:01:25.640 --> 00:01:29.720 The whole point of statutory construction is to bring clarity, not to identify 00:01:29.720 --> 00:01:34.600 ambiguity. The government defends this practice not as the best ring of the APA but 00:01:34.600 --> 00:01:38.040 by invoking stare decisis. That is doubly problematic. 00:01:38.365 --> 00:01:43.325 First, an issue here is only Chevron's methodology, which is entitled to reduce 00:01:43.325 --> 00:01:48.125 stare decisis effect. We have no beef with Chevron's Clean Air Act holding, and we 00:01:48.125 --> 00:01:52.445 could not take issue with its APA holding because it failed to mention that statute. 00:01:52.880 --> 00:01:57.920 But second, all the traditional stare decisis factors point in favor of overruling 00:01:57.920 --> 00:02:03.520 Chevron's methodology. The doctrine is unworkable as its critical threshold question 00:02:03.520 --> 00:02:06.400 of ambiguity is hopelessly ambiguous. 00:02:06.785 --> 00:02:12.705 It is also a a reliance destroying doctrine because it facilitates agency flip 00:02:12.705 --> 00:02:17.425 flopping. So the reality here is the Chevron two step has to go and should be 00:02:17.425 --> 00:02:19.105 replaced with only one question. 00:02:19.185 --> 00:02:20.865 What is the best reading of the statute? 00:02:21.110 --> 00:02:22.710 I welcome the court's questions. 00:02:23.430 --> 00:02:24.430 Mister 00:02:24.630 --> 00:02:27.430 Clement, you, heard the government's... 00:02:27.510 --> 00:02:31.350 The general... General's arguments, with respect... 00:02:31.350 --> 00:02:37.685 Use of of mandamus as a basis for, sort of deference. 00:02:38.405 --> 00:02:40.485 And could you comment on that? 00:02:40.485 --> 00:02:45.445 Because my understanding of mandamus is that the duty has to be clear before it, 00:02:45.685 --> 00:02:49.620 actually lies. But I'd like your comment on that. 00:02:49.700 --> 00:02:53.860 Absolutely, justice Thomas. So I think mandamus is a critical recognition of the 00:02:53.860 --> 00:02:58.180 fact that, of course, congress can limit the remedies available in particular 00:02:58.180 --> 00:03:02.020 circumstances, and that's the right way to understand the mandamus standard. 00:03:02.335 --> 00:03:06.095 But that's quite different from telling the courts that they're to engage in 00:03:06.095 --> 00:03:10.815 statutory construction as congress clearly did in section seven zero six of the APA, 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 00:03:14.815 --> 00:03:18.610 because you're deferring. And I think it's important from a separation of powers to 00:03:18.610 --> 00:03:22.130 under... Purpose to understand that it's not just remedies are different. 00:03:22.130 --> 00:03:23.730 There's an accountability difference. 00:03:23.730 --> 00:03:28.530 Because I suppose congress tomorrow could decide that we're gonna go back to a world 00:03:28.530 --> 00:03:32.685 where the only review of executive branch action is mandamus, but then congress 00:03:32.685 --> 00:03:36.045 would be fully responsible for that highly unpopular decision. 00:03:36.365 --> 00:03:38.765 But... So that's the difference, I think, the fundamental difference from a 00:03:38.765 --> 00:03:42.685 separation of power standpoint between a limitation on remedies where congress does 00:03:42.685 --> 00:03:48.100 it specifically and essentially telling the courts in the APA specifically, you have 00:03:48.100 --> 00:03:52.340 the interpretive authority over statutes no less than constitutional issues, but 00:03:52.340 --> 00:03:55.700 then overlaying a doctrine that says what we're doing is interpretation. 00:03:55.780 --> 00:03:58.900 And that's the critical thing about the interchange between footnote nine and 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 00:04:03.545 --> 00:04:06.105 Chevron case is statutory interpretation. 00:04:06.425 --> 00:04:11.385 But then in footnote 11, it says at a certain point, you stop doing statutory 00:04:11.385 --> 00:04:16.210 interpretation even though you think there's a better answer and you defer to a 00:04:16.210 --> 00:04:17.570 different branch of government. 00:04:17.650 --> 00:04:20.930 And it's not the branch of government the framers gave the interpretive authority 00:04:20.930 --> 00:04:25.090 to. It's the branch of government that the framers gave the implementing authority. 00:04:25.170 --> 00:04:29.065 So I think from that standpoint, Chevron is a fundamental, egregiously wrong 00:04:29.065 --> 00:04:32.265 decision that just gets it wrong on basis of separation of powers. 00:04:32.265 --> 00:04:34.265 There's such a tension in this. 00:04:34.265 --> 00:04:40.025 Interpretive authority, everybody seems to concede, means discretion. 00:04:40.600 --> 00:04:46.120 It means there's multiple meanings that you can take from something, and someone has 00:04:46.120 --> 00:04:48.440 to choose among those meanings. 00:04:49.160 --> 00:04:51.960 It seems like most people agree if the court... 00:04:51.960 --> 00:04:58.135 If the statute uses reasonable, that Congress is delegating the definition of 00:04:58.135 --> 00:05:04.695 reasonable to the agency. And the agency is deciding what is reasonable within some 00:05:04.695 --> 00:05:10.375 outer limit, either set within the statute or or within the law. 00:05:10.960 --> 00:05:13.360 But the point is that I don't... 00:05:13.920 --> 00:05:19.280 It's great rhetoric, mister Clement, but we do delegate. 00:05:19.280 --> 00:05:23.840 We have recognized delegations to agencies from the beginning of 00:05:23.840 --> 00:05:24.000 the 00:05:24.000 --> 00:05:28.935 founding of interpretation. And so I I... 00:05:28.935 --> 00:05:32.215 I'm I'm at a loss to understand where the argument comes from. 00:05:32.215 --> 00:05:36.295 Well, let me try to clarify. I think there is a difference between recognizing 00:05:36.295 --> 00:05:39.015 discretion and recognizing delegation. 00:05:39.450 --> 00:05:44.410 There are certain statutory terms, as you yourself point out, that that that 00:05:44.410 --> 00:05:50.090 properly construed by the courts definitively would give the agency a realm of 00:05:50.090 --> 00:05:51.450 discretion in which to operate. 00:05:51.815 --> 00:05:55.575 But there are other terms in which it is really a binary question. 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 00:06:00.295 --> 00:06:03.975 distinguishing between the two, and the best example is brand x. 00:06:05.190 --> 00:06:09.270 Broadband communications are either an information service or they are a 00:06:09.270 --> 00:06:13.430 telecommunications service. It might be hard to figure out which one, but they can't 00:06:13.430 --> 00:06:15.350 be one on a Tuesday and the next on a 00:06:15.350 --> 00:06:17.030 Thursday Oh, wait a minute. That's that's... 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 00:06:23.415 --> 00:06:30.295 and with the development of how that is implemented in terms of transmission and the 00:06:30.295 --> 00:06:32.695 Internet, that over time that's going to change. 00:06:33.370 --> 00:06:34.250 But justice Sotomayor... 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. 00:06:38.810 --> 00:06:43.610 There were two areas that congress looked at and knew that monitors were critical. 00:06:43.610 --> 00:06:49.465 Okay? Foreign sea travel for obvious reasons because there's very little that 00:06:49.705 --> 00:06:53.785 outside, once those ships leave that people... 00:06:53.785 --> 00:06:56.265 That the US government can do to them. 00:06:56.825 --> 00:06:59.625 And the other was the... I think it was the North Pacific area. 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 00:07:07.100 --> 00:07:13.900 that the broad words giving the secretary the power to monitor and implement 00:07:13.900 --> 00:07:20.275 measures to ensure that its conservation goals were being followed wasn't given to 00:07:20.275 --> 00:07:26.035 the agency. Those are the facts that what we should be looking at, in my judgment, 00:07:26.515 --> 00:07:32.220 is is... Are... Is this measure commensurate with what drove the similar measure, 00:07:32.220 --> 00:07:35.100 not identical, in the other two examples? 00:07:35.100 --> 00:07:37.340 And the agency should have first crack at that. 00:07:37.580 --> 00:07:38.620 So I disagree. If they're 00:07:38.620 --> 00:07:43.155 not similar, the court will look at it and say, your decision was arbitrary and 00:07:43.155 --> 00:07:47.075 capricious. If they are similar, we might say, okay. 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 00:07:50.915 --> 00:07:55.155 that, but it's just the point I'm making, which is 00:07:57.040 --> 00:08:00.400 that things change on the ground. 00:08:00.720 --> 00:08:05.440 So And a definition you give today may not hold up to new facts. 00:08:07.200 --> 00:08:08.960 So facts do change on the ground. 00:08:08.960 --> 00:08:11.915 That is part of the problem with Chevron in brand x. 00:08:11.915 --> 00:08:17.435 If there's a difficulty in classifying broadband today, the difficulty is that the 00:08:17.435 --> 00:08:19.675 statute was last passed in 1996. 00:08:19.675 --> 00:08:25.080 So figuring out whether twenty twenty three broadband is a 1996 information service 00:08:25.080 --> 00:08:29.640 or a nineteen ninety six telecommunication service is a granddaddy of a problem. 00:08:29.640 --> 00:08:31.080 But it does have a binary answer. 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 00:08:35.960 --> 00:08:40.675 you do the Chevron ambiguity test, you find a word like appropriate in the statute 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 00:08:44.355 --> 00:08:47.395 that word is ambiguous. So I'm gonna go to step two. 00:08:47.395 --> 00:08:48.835 That's what the court below did. 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 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 00:08:56.130 --> 00:08:59.330 exclusius, inclusius, forget the exact Latin phrase. 00:08:59.330 --> 00:09:04.210 But the point is, you have a situation where in the most commercially well heeled 00:09:04.210 --> 00:09:07.025 fishery in the country, congress did two things. 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 00:09:12.625 --> 00:09:17.185 you do that, cap the fees at two to 3% of the value of the catch. 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 00:09:22.420 --> 00:09:26.900 not think possibly conveyed the authority to the agency to say, with a much 00:09:26.900 --> 00:09:31.380 different, fishery in The Atlantic where it's small business people, we're gonna let 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% 00:09:35.745 --> 00:09:41.665 of their annual returns. I think if you strip away Chevron, this is a fairly easy 00:09:41.665 --> 00:09:46.570 case where you just say, wow. Congress had this question in mind in one place or 00:09:46.570 --> 00:09:48.570 actually three places to be specific. 00:09:48.810 --> 00:09:52.650 And with every domestic fishery, they only gave it in two instances. 00:09:52.650 --> 00:09:56.330 And in both instances, they said it can be no more than two or 3% of 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 00:10:00.010 --> 00:10:01.010 question. 00:10:01.045 --> 00:10:07.285 I am arguing that the best reading of the statute is that my client wins. 00:10:07.365 --> 00:10:09.045 Now if I have to... 00:10:09.125 --> 00:10:13.125 Well, but it seems to it seems to me that you're not contemplating the possibility 00:10:13.125 --> 00:10:16.230 of another reason and another result. 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 00:10:19.430 --> 00:10:21.430 can be a number of different interpretations. 00:10:21.750 --> 00:10:24.550 But I don't think that's coming to grips with the Chevron question. 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 00:10:27.990 --> 00:10:32.255 justice Kavanaugh saying, which is I don't think there is a different rule of 00:10:32.255 --> 00:10:37.455 statutory construction in cases where agency is a party when in cases when agency is 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. 00:10:42.470 --> 00:10:44.710 This is hard. I think the law has run out. 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 00:10:49.030 --> 00:10:51.350 answer. Now if you... Well, you were just saying, 00:10:51.350 --> 00:10:56.865 I mean, that the principle of excusio unius answers, the question. 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 00:11:02.385 --> 00:11:07.345 Chevron issue. Because Chevron step one, you would give the same answer. 00:11:08.750 --> 00:11:12.830 Maybe you would, your honor, but nobody knows where step two ends and step two 00:11:12.830 --> 00:11:17.630 begins. And, you know, for... I I mean, I suppose now taking the hints from Kaiser, 00:11:17.630 --> 00:11:21.150 which is about our, not Chevron, you would say, well, of course, you apply all the 00:11:21.150 --> 00:11:25.045 stand... Cannons of statutory construction before you get to step two. 00:11:25.205 --> 00:11:29.365 But but the point is, in every other case, you apply all those cannons, and if 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 00:11:33.125 --> 00:11:34.405 see if there aren't some other cannons. 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 00:11:41.030 --> 00:11:46.790 certain cases, you apply all those tools, and the conclusion you come up with is 00:11:46.790 --> 00:11:48.630 congress hasn't spoken to this issue. 00:11:49.345 --> 00:11:52.465 And if you had no other option, you're a court. 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 00:11:57.185 --> 00:11:59.425 basically on your own. But with... 00:11:59.425 --> 00:12:05.190 When Chevron comes in, when there is an agency, what Chevron says is, now there are 00:12:05.190 --> 00:12:09.590 two possible decision makers. There's the agency and there's the court. 00:12:09.990 --> 00:12:15.750 And what we think is that Congress would have preferred the agency to resolve this 00:12:15.750 --> 00:12:19.905 question when congressional direction has... 00:12:19.905 --> 00:12:25.185 Cannot be failed because of the agency's expertise, because of the agency's 00:12:25.185 --> 00:12:29.505 experience, because the agency understands how this question fits within the 00:12:29.505 --> 00:12:33.800 statutory scheme. So it's not a question the court couldn't do it. 00:12:33.800 --> 00:12:39.880 It's a question of once congressional direction can't be found, who does congress 00:12:39.880 --> 00:12:41.240 want to do it? 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... 00:12:46.355 --> 00:12:48.275 Even even though there's an agency there. 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 00:12:52.355 --> 00:12:56.515 give the tie to the citizen. Let's not give the tie to the agency. 00:12:56.515 --> 00:12:57.640 And I think it's important I 00:12:57.640 --> 00:12:59.400 don't think it's like what we would do. 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. 00:13:03.160 --> 00:13:05.320 Chevron is about what congress wants. 00:13:05.720 --> 00:13:10.280 And you can call it fictional or you want, but we have lots of presumptions that 00:13:10.280 --> 00:13:13.435 operate with respect to statutory interpretation. 00:13:13.595 --> 00:13:18.635 And this is just one of them. It's just saying, congress understands as well as 00:13:18.635 --> 00:13:23.835 anybody different institutional's comparative attributes and comparative virtues. 00:13:24.300 --> 00:13:27.500 And it does not want courts making... 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 00:13:34.540 --> 00:13:36.460 direction can't be found. 00:13:36.885 --> 00:13:40.005 So, justice Kagan, if we're gonna talk about what congress wants, we probably should 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 00:13:43.605 --> 00:13:45.605 house and its institutional capacity. 00:13:45.765 --> 00:13:48.245 And it doesn't want Chevron. It's on our side of the case. 00:13:48.245 --> 00:13:50.085 It certainly doesn't want Chevron. 00:13:50.085 --> 00:13:52.245 It has total control over Chevron. 00:13:52.620 --> 00:13:57.340 It can reverse Chevron tomorrow with respect to any particular statute and with 00:13:57.340 --> 00:13:59.260 respect to statutes generally. 00:13:59.500 --> 00:14:05.500 And it hasn't. For forty years, it has exceeded to Chevron, except in super rare 00:14:05.500 --> 00:14:09.865 cases. It has basically said, this is the background rule. 00:14:09.865 --> 00:14:15.305 It gives us a stable default rule from which to write statutes, and we've accepted 00:14:15.305 --> 00:14:16.105 that. 00:14:16.105 --> 00:14:17.945 So let me say three things about that. 00:14:17.945 --> 00:14:21.180 First of all, I'm not sure everybody in congress wants to overrule Chevron 00:14:21.180 --> 00:14:23.740 because Everybody in congress doesn't wanna do everything. 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 00:14:28.060 --> 00:14:31.740 tackle the hard questions and to rely on their friends in the executive branch to 00:14:31.740 --> 00:14:33.100 get them everything they want. 00:14:33.340 --> 00:14:36.335 I also think justice Kavanaugh's right that even if congress did it, the president 00:14:36.335 --> 00:14:39.455 would veto it. And I think the third problem is... 00:14:39.455 --> 00:14:44.335 And and fundamentally even more problematic is if you get back to that fundamental 00:14:44.335 --> 00:14:49.210 premise of Chevron that when there's silence or ambiguity, we know the agency wanted 00:14:49.210 --> 00:14:54.490 to delegate to the agency. That is just fictional and it's fictional in a particular 00:14:54.490 --> 00:14:58.090 way which is it assumes that ambiguity is ours of delegation. 00:14:58.475 --> 00:15:00.715 But ambiguity is not ours of delegation. 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 00:15:04.715 --> 00:15:07.035 clear. So I'm gonna leave it ambiguous. 00:15:07.035 --> 00:15:09.915 That's how we're gonna get over the bicameralism and presentment hurdle. 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. 00:15:13.510 --> 00:15:17.910 And that ends up with the phenomenon where we have major problems in society that 00:15:17.910 --> 00:15:22.630 aren't being solved because instead of actually doing the hard work of legislation 00:15:22.710 --> 00:15:26.150 where you have to compromise with the other side at the risk of maybe drawing a 00:15:26.150 --> 00:15:31.475 primary challenger, You rely on an executive branch friend to do what you want, and 00:15:31.475 --> 00:15:32.835 it's not hypothetical. When I 00:15:32.835 --> 00:15:36.115 hear you talk about the You said you end up in gridlock, which we have now. 00:15:36.675 --> 00:15:40.515 No. What I'm saying is Chevron is a big factor in contributing to gridlock. 00:15:40.515 --> 00:15:41.875 And let me give you a concrete example. 00:15:42.490 --> 00:15:47.370 I would think that the uniquely twenty first century phenomenon of cryptocurrency 00:15:47.530 --> 00:15:50.570 would have been addressed by congress, and I certainly would have thought that would 00:15:50.570 --> 00:15:54.810 have been true in the wake of the FTX debacle, but it hasn't happened. 00:15:54.810 --> 00:15:58.975 Why hasn't happened? Because there's an agency head out there that thinks that he 00:15:58.975 --> 00:16:03.535 already has the authority to address this uniquely twenty first century problem with 00:16:03.535 --> 00:16:05.935 a couple of statutes passed in the nineteen thirties. 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 00:16:10.015 --> 00:16:14.910 ambiguous, and that's gonna suck all of this into my regulatory ambit even though 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. 00:16:18.910 --> 00:16:20.990 Mister Clinton That's... Oh, sorry. 00:16:21.150 --> 00:16:24.350 I was just gonna ask you to address stardustasis. 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 00:16:27.755 --> 00:16:32.075 in 07/2006, congress has spoken to the problem that we're not applying a fictional 00:16:32.075 --> 00:16:33.995 presumption, but that congress has told us. 00:16:34.155 --> 00:16:36.235 You know, we want courts to decide questions of law. 00:16:37.050 --> 00:16:40.730 The the solicitor general in the last argument talked about how litigants will be 00:16:40.730 --> 00:16:45.770 lining up for cases that were decided under step two to seek to reopen challenges to 00:16:45.770 --> 00:16:49.370 the agency's interpretation. What do you have to say about the disruptive 00:16:49.370 --> 00:16:50.650 consequences of overruling? 00:16:51.035 --> 00:16:54.395 So I think the solicitor general, with all due respect, will be saying the exact 00:16:54.395 --> 00:16:57.435 opposite if this court overrules the decision and will be saying, no. 00:16:57.435 --> 00:16:59.595 You gotta look at it at the right level of generality. 00:16:59.755 --> 00:17:05.490 What I would say is this court has moved away dramatically from certain methods of 00:17:05.490 --> 00:17:10.050 interpretation, more dramatically than just we look at legislative history less now 00:17:10.050 --> 00:17:14.530 than we used to. Implied causes of action, as far as I can tell, are dead. 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 00:17:19.055 --> 00:17:20.655 overruled ipso facto. 00:17:20.655 --> 00:17:24.015 But that's a little bit different because those implied causes of action, the court 00:17:24.015 --> 00:17:26.255 was saying this is what the statute means. 00:17:26.255 --> 00:17:28.815 Like, title nine implies the cause of action or whatever. 00:17:29.455 --> 00:17:33.455 This would be different because the court would just be saying, may not be the best, 00:17:33.540 --> 00:17:35.620 but the agency's interpretation is reasonable. 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 00:17:38.980 --> 00:17:40.260 of action cases did. 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 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 00:17:49.665 --> 00:17:55.665 these Chevron cases, the question is, is the agency's interpretation of the statute 00:17:55.665 --> 00:18:00.145 lawful? And if the court has already held, yes, it is lawful, I would think that 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 00:18:04.680 --> 00:18:07.000 about that is because of brand x. 00:18:07.320 --> 00:18:11.800 And brand x is a huge embarrassment for the government and the government's friend. 00:18:11.800 --> 00:18:13.560 I looked through the bottom side amicus. 00:18:13.560 --> 00:18:15.800 I counted 13 amicus briefs on the bottom side. 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 00:18:21.075 --> 00:18:22.755 just go away, wouldn't it? 00:18:22.755 --> 00:18:24.195 Sorry, justice Thomas. 00:18:27.475 --> 00:18:31.800 But that absolutely makes clear that, you know, this is a reliance destroying 00:18:31.800 --> 00:18:37.080 doctrine. And, frankly, if you said that Chevron is over and all of those step two 00:18:37.080 --> 00:18:41.480 cases that were decided are gonna have stare decisis effect because of the level of 00:18:41.480 --> 00:18:45.160 generality point I made, you would be giving new stability to the law. 00:18:45.160 --> 00:18:46.520 It would be improving stability. 00:18:46.865 --> 00:18:49.105 That's an important distinction from Kaiser. 00:18:49.265 --> 00:18:51.425 In Kaiser, you know, the Kaiser doctrine... 00:18:51.425 --> 00:18:55.665 The Auer doctrine rather never had its brand x moment where this court made clear 00:18:55.665 --> 00:18:58.145 that the agency could flip a 180 degrees. 00:18:58.305 --> 00:19:00.625 And indeed, in Kaiser itself, it suggested the opposite. 00:19:01.190 --> 00:19:06.070 But here with Chevron, we know this is a a reliance destroying doctrine. 00:19:06.230 --> 00:19:08.710 Here's another thing to think about in terms of Kaiser. 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 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 00:19:16.165 --> 00:19:18.165 says is you need a special justification. 00:19:18.485 --> 00:19:22.805 Well, I think we've offered you special justifications in droves and special 00:19:22.805 --> 00:19:24.805 justification beyond the decision being wrong. 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 00:19:29.650 --> 00:19:33.410 relevant decision didn't cite the relevant statute at all. 00:19:33.730 --> 00:19:37.010 I mean, look, this would be a different world if Chevron went in and wrestled with 00:19:37.010 --> 00:19:41.890 section seven zero six and said, despite all contrary textual indications that it 00:19:41.890 --> 00:19:46.305 forecloses de novo review of statutes, I suppose I'd have to be here making every 00:19:46.305 --> 00:19:49.905 single stare decisis argument, but that is not what Chevron did. 00:19:49.905 --> 00:19:52.065 It didn't even mention the relevant statute. 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 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 00:20:00.110 --> 00:20:03.070 favor. The decision is tremendously unworkable. 00:20:03.070 --> 00:20:04.830 Nobody knows what ambiguity is. 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 00:20:08.845 --> 00:20:11.885 an elaboration on what the government said the last time up here, which is that 00:20:11.885 --> 00:20:13.965 nobody knows what ambiguity means. 00:20:13.965 --> 00:20:16.605 But that's just workability. Let's talk about reliance. 00:20:16.685 --> 00:20:20.045 I talked about the brand x problems, are very serious problems. 00:20:20.365 --> 00:20:24.730 And, like, I love the brand x case because broadband regulation provides a perfect 00:20:24.730 --> 00:20:28.410 example of the flip flop that can happen, but it's not my only example. 00:20:28.410 --> 00:20:32.090 There are amicus briefs that talk about the national labor relations board flip 00:20:32.090 --> 00:20:36.435 flopping on everything. Ask the little sisters about stability and reliance 00:20:36.435 --> 00:20:40.595 interests as their fate changes from administration to administration. 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 00:20:45.315 --> 00:20:49.770 that justice Gorsuch alluded to, but I'd like to emphasize its effect on congress. 00:20:49.770 --> 00:20:53.370 Because, honestly, I think when the court was originally doing Chevron, it was 00:20:53.370 --> 00:20:57.770 looking only at a comparison between article two and article three, and who's better 00:20:57.770 --> 00:20:59.450 at resolving these hard questions. 00:20:59.610 --> 00:21:03.825 I think it got even that question wrong, but it failed to think about the the 00:21:03.825 --> 00:21:06.705 incentives it was giving the article one branch. 00:21:06.705 --> 00:21:09.185 And that's what forty years of experience has shown us. 00:21:09.185 --> 00:21:12.865 And forty years of experience has shown us that it's virtually impossible to 00:21:12.865 --> 00:21:18.470 legislate on meaningful issues, major questions, if you will, because because right 00:21:18.470 --> 00:21:23.270 now, roughly half of the people in congress at any given point are gonna have their 00:21:23.270 --> 00:21:24.630 friends in the executive branch. 00:21:24.630 --> 00:21:29.670 So their choice on a controversial issue is compromise and forge a long term 00:21:29.670 --> 00:21:34.955 solution at the cost of maybe getting a primary challenger, or instead just call up 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 00:21:39.435 --> 00:21:43.835 give everything on your wish list based on a broad statutory term. 00:21:44.090 --> 00:21:46.090 And my friends asked for empirical evidence. 00:21:46.090 --> 00:21:48.570 I think you just have to look at this court's docket. 00:21:48.810 --> 00:21:51.850 It's been one major rule after another. 00:21:51.850 --> 00:21:54.410 It hasn't been one major statute after another. 00:21:54.490 --> 00:21:58.055 I would have thought congress might have addressed student loan forgiveness if that 00:21:58.055 --> 00:22:00.455 were really such an important issue to one party in the... 00:22:00.455 --> 00:22:04.855 In in in congress. I would have thought maybe they would have fixed the the eviction 00:22:04.855 --> 00:22:07.815 moratorium. I could go on and on on these issues. 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 00:22:13.150 --> 00:22:15.710 hard issues and forge a permanent solution. 00:22:15.950 --> 00:22:19.310 My friends on the other side also talk about, you know, this is this is great 00:22:19.310 --> 00:22:21.230 because it leads to uniformity in the law. 00:22:21.625 --> 00:22:23.465 Well, I don't think that's an end in itself. 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 00:22:26.825 --> 00:22:29.865 uniformity and let's have the thumb on the scale inside of the citizen. 00:22:30.185 --> 00:22:34.425 But the reality is the kind of uniformity that you get under Chevron is something 00:22:34.425 --> 00:22:38.110 only the government could love because every court in the country has to agree on 00:22:38.110 --> 00:22:41.150 the current administration's view of a debatable statute. 00:22:41.310 --> 00:22:45.470 You don't get the kind of uniformity that you actually want, which is a stable 00:22:45.470 --> 00:22:48.270 decision that says this is what the statute means. 00:22:48.270 --> 00:22:53.645 Mister Kemet, can I ask you the same question I asked mister Martinez about why 00:22:53.725 --> 00:22:56.845 Chevron was initially popular? 00:22:57.085 --> 00:23:03.885 People who were very sophisticated and had a deep understanding of how judges 00:23:04.205 --> 00:23:10.100 decide what a statute means and a deep understanding of how administrative agencies 00:23:10.100 --> 00:23:16.020 work thought that Chevron would be an improvement because it would take judges out 00:23:16.020 --> 00:23:19.380 of the business of making what were essentially policy decisions. 00:23:19.380 --> 00:23:24.155 Now were they wrong then? And if they weren't wrong, then what, if anything, has 00:23:24.155 --> 00:23:25.435 changed since then? 00:23:25.675 --> 00:23:29.195 So justice Alito, I think they were partially right then. 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 00:23:33.515 --> 00:23:37.510 back in Chevron. What has changed is we've come a long way in statutory 00:23:37.510 --> 00:23:42.870 interpretation. And, you know, if Chevron was a response to some of the excesses of 00:23:42.870 --> 00:23:47.235 the DC circuit in the freewheeling days of the late seventies and the use 00:23:47.235 --> 00:23:50.755 legislative history, and oh, by the way, the text of the statute appears in the 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 00:23:54.035 --> 00:23:56.915 races. We now, I think, are all textualist. 00:23:56.915 --> 00:24:00.035 The focus is much greater on the text of the statute. 00:24:00.350 --> 00:24:05.230 And once you recognize that, you recognize the problem with deferring at a certain 00:24:05.230 --> 00:24:09.310 point to the agencies. And let's look at the track record of the agencies before 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 00:24:13.565 --> 00:24:15.725 case that they're getting these statutes right. 00:24:15.965 --> 00:24:20.365 By my count and by the Cato Institute in their in their amicus brief, since the 00:24:20.365 --> 00:24:25.725 court last cited Chevron, the administration is batting about 300 in these cases. 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 00:24:29.860 --> 00:24:33.780 complicated cases. Look at the American Hospital Association's case. 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 00:24:37.860 --> 00:24:44.115 yet this court had no trouble unanimously saying that you can't have hospital chain 00:24:44.115 --> 00:24:46.995 specific pricing without first doing a survey. 00:24:46.995 --> 00:24:49.475 Well, I don't know whether you can say we had no trouble. 00:24:51.395 --> 00:24:52.995 I I was gonna say that, but... 00:24:52.995 --> 00:24:53.250 Yeah. 00:24:53.250 --> 00:24:54.250 So was I... 00:24:55.250 --> 00:24:57.170 No one was troubled to write a dissent. 00:24:57.170 --> 00:24:59.490 Let let me me put it that way. 00:24:59.490 --> 00:25:01.170 But... And and I can use other examples. 00:25:01.170 --> 00:25:05.490 Encino, a case where this court said that Chevron wasn't applicable because of a 00:25:05.490 --> 00:25:09.165 procedural defect. Now it split the court five to four, but how did it decide the 00:25:09.165 --> 00:25:12.125 case? Decided the case with the distributive canon. 00:25:12.125 --> 00:25:16.125 Do you think the labor department wage and hour division is the experts on the 00:25:16.125 --> 00:25:18.125 distributive canon, or do you think the courts are? 00:25:19.070 --> 00:25:20.750 Thank thank you, mister Clement. 00:25:21.150 --> 00:25:27.230 The answer, from mister Martinez on several, questions about what happens when you, 00:25:27.230 --> 00:25:30.830