Transcripts For CSPAN3 Supreme 20240705

We will hearent next in case 22451, local right enterprise vers raimdo mr. Chief justice, may it please the court, this case commercial fishing his heart. Space on board the vehicle vessels are tighand margins e tighter still. Therefore, for my client having to carry federal observers on board is a burdenbuhaving to pay their salaries is a crippling blow. Congress recognizes much by strictly limiting the circumstances in which domestic Fishing Vessels can be battle with monitoring costs and capping emat 2 3 of the value of the catch. The agency showed no such rerat requiring monitoring of 50 of the trips and a cause of 20 of eiannual returns. Nonetheless the cot deferred to the agency because it blew view the stat signment. There is no justification for giving the tide to the government. Both the apaand constitution of what his principles ca for de novo review asking only whatisthe best reading of the statute. Asking instead is the st ambiguous is fundamtay misguided. The whole point was to bring clarity and not to enfy ambiguity. The government defends this practice not is the be ring of the apa by invoking starter sizes. That is doubly problematic. Thise is only chevrons methodology and title to du we have beef with the chevron Clean Air Act holding and we cannot take issue with apholding because it failed to mention that statue. Secondalof the factors point in favor of over rudy overruling the methodology, unworkable as its threshold is hopelessly ambiguous. It is also a reliance destroying doctrine, because it is a taste agency flipflopping. The reality here is the evron to step has to go and should be replaced withon one question, what is the best reading of the statue . I welcome the course qutions. Youve heard the government for th generals gunt with the use of mandamus mandamus as a basis for deference. Could you comment on that . My understandg mandamus is the duty has to be clear before it actually lies. I would like ur comment on that. Absolutely, juicthomas. I think mandamus is a critical recognitioofthe fact that congress can remedy the availabiliesin particular circumstances. That is the ghway to understand the mandamus standard. That is quite different from telling the court they are engage in as congress clearly did. But then say there is a point in which you cannotctlly give us the best sw because you are deferring. I think it is poant from a seraon of powers purpose to understand it is not as remedi, ere is an accountability difference. I suppose co could decide we are going to go back to a world where the only review action is mandamus. Congress would then be fully responsible for that highly unpopular decisi that is the difference, the fundamental difference froma separation of powers stamp betwn a limitation on remedy and specifically telling th court in the apa specifically you have the Interpretive Authority over stueno less than constitutional issues, but then overlaying a doctri that says what weare doing is interpretation. That is the critical thing about the interchange between footnote 9 and footnote 11. Footte9 tells you as clearly as i can what you are doing a statutory interpretation. In footnote 11 it says that a certain inyou stop doing statutory interpretation,en though you think there is a better answer. You refer Different Branch of government. It is not the branch the framers gave the interpretive authittwo. It is the branch the framers gave the implementing authority. I thk from that standpoint chevron is a fundamental and egregiously wrong decision that gets it wrong on the basis of paration of powers. There is such a contention in this. Interpretive authority mean discretion. It means therare multiple meetings that you can take from meing and someone has to choose among those meetings. It seems like most people agree if thestue uses reasonable that congress is delegating the definition reasonable to the agen. The agency is deciding is reasonable within some telimits either set within thstatue or within thlaw. The point is, it is great rhetoric, mr. Clement, but we do delegate. We have recognized allegations to agencies from the beginning the founding of interpretation. I am at a loss to understand wherthargument comes from. I think there is a difference between recognizing discretion and recognizing delegation. There are certain statutory terms as you yourself went out that properly construedby the courinitively would give the agencya realm of discretion in which tooperate. There are other terms in which it is really a binary question. The fundamental feeling of evn is it doesnt do a good job of distinguishing between the two. The best example isbrand ex. Broadband communications are either Formation Service or telecommunications service. It might be hard to figure out which one, but there cannot one of the tuesday mx on thursday. Wait a minute, it may be binary to you. I do know witthdevelopment of technology and with the development of how that is implemented in termof transmission and the internet that over time that is into change. The same issue even in the case at we are in right now, there re two areas the Congress Look that and you that reviewed for easy travel for obvious reasons. There is very lile outside once those ships leave thathe u. S. Government can do to them. E other, i thk was the North Pacific area, but the point is that doesnt mean that similar problems didnt are later and that the broad rd giving the secretary the wer to monitor animplement measures to ensure that his conservation goals were being followed wasnt given to the agency. Those are e facts and what we should be looking at in my judgment. Is this measure commensurate with what drove a similar measure, not identical, in the other two examples. E agency should have first crack at that. If they are not similar the court will look and say decision was arbitrary and capricious. Ey are similar we might say okay, this is all right. I dont know the answer. We really havent dug into that. It is just a point that i am making, which is things change on the ground. A definition you give today may not hold up to new facts. Backs do change on the ground that is probably probable chevron and brand x. If there is a difficulty in classifying oadband today, the difficult to get the statue was la passed in 1996. Going out of 2023 broadband is a 1996 inFormation Service or 1996 Telecommunications Services the granddaddy of a problem. It does have a na answer. Bringing it home to the statue, what i would sais if do the chevron ambiguity test if i never like a o it in the statue or maybe for meeople carry. I think that one is pretty clea to say that word is ambiguous i want to go to step two. T if you look at the statue as a whole. If you look at it the way you would in any other context, i think what you would see if this is a asc case, i forget the exact phse the point is you have a situation that in the worst fishery e Country Congress that you may not not musthave monitors paid for by the indury but if you do that you must have the fee at 2 3 of e value of the catch. A congress thathat with the most well healed fishery in the nation, i do thg possibly convey the authority to the agency to say witha much fferent fishery in the atlantic where its Small Business people, whe going to let you do effectively the same thing, but we are going to let u do it to the turn tes of 20 of their annual returns. If you strip chevron this is a fairly easy case where you just make congress had this question in mind in one place or actually replaces the be specific. With every domestic fishery they only gave it in two instances. In both they said it can be no more than 2 or 3 . If you are arguing the statue is not ambiguous on that question. If i am arguing the reading of the statute is that my client wins. If i have to, i would contemplating the result. That may be right. You are saying this is aa case where there cobe a number of interpretations. I donk that is coming to grips with the chevron question i hope it is. What i would say is exactly what i heard Justice Kavanaugh say, is i do not think there is a different rule in cases where agency is a party or if agency is not. In both cases you cannot get to a certain and say this is hard. I think the law has run out. In both cases you arsupposed to take it all the way to coming up with yr st answer. You were just saying the principal answerthe question. If it answers the question, i guess i dont understand how you even get to the chevron issue. Chevron that one you would give the same in the. Maybe you would, but nobody knows where step two against her ends. I mean i suppose now taking the hits from kaiser, whh is about something not chevron usa of course you would apply the canons of statorconstruction before you get to step two. Tht is in every other case you apply those cannons. If youre not sure about the answer you du off the back and see if there are some he cannons. Because u ve no other option, what chevron is it is a recognition that in certain ses you apply all thostos and the conclusion you come up wi icongress hasnt spoken to this issue. If you had no otheopon, you are a court and there is a case before you, you try as hard as you can. Even though you know you are basically on your own. When there is an agency what chevron says is now there e two possible decisionmakers. There is the agency and er is the court. What we think is that congress would have preferred the agen to resolve this question. When congressional direio cannot be found, because of th agencys expertise. Because of e agencys experience, because the agency understands ho this question fits wiin the statutory scheme. It is not a question that the court cod t do it. It is a question of once congressional direction cannot be found, who doesess want to do it . Justice kagan , i do not agree with you that the law ru out, even though there is an agency there. I would giveyothis, if i did i would say at that point t give the tie to the citizen. Lets not give e tie to the agency. I dot ink is what we would do. You will give the tie to the citizen and i to the agency. Chevron is about what congress want. You can call it fictional all you want, and we have lots of presumptions that operate with respect to statutory interetion. This is just one of th. It is just saying congress understands as well as anybody diffeninstitutionals comparative tributes and virtues. It does not want courts making, i me it is law,buit is licy laden judgments. Once congress cannot find direction. If we want to talk about what coneswants we probably should advert to the fact that we do havanamicus briefing in this case from the use. It does t nt chevron. It has total control over chevron. It can reverse it tomorrow with respecto any titular statute and with respect to statue nelly and it hasnt. For 40 years it has exceeded except for super rare cases. It has basically said this is the background rule. It gives us a default rule from which to write statute. We have except accepted. I am not sure everybody in Congress Wants to overle chevron. Evyby in congress doesnt want to do everything. It is real c be for some members of congress an not have to tackle on the hard questions and allow for their fries get them everything they want. Even if congress did it, the presenwould be to. I think the third problem, even more problematic, if you back to that fundamental premise of chevron that when eris silence or ambiguity we know the agency wanteto delegated delegate to the agency it is fictional and in a particular way. It assumes ambiguity is always delegation of. But it is not. More often when biity yes, i dont have enou ves in congress to make it clear. I want to leave ambiguous and that is how we are going to get over the hurdle. We will give it to my friends in the agency and they will take it from here. That is thawi the eight a phenomenon we have major problems in society that are not being solved. Instead of doing the hard work of legislation we have to compromise with the other side at the risk of maybe throwing a primary challeng you rely on a execute anch grant to do what you want. It is not hypothetical. You say we end gridlock, which we have now. What i am chevron is a big factor contributing. I would inthe uniquely 21st century phenomena of cryptocurrency would have been addressed by congress. I certainly wouldve thought that wouldve been true in the wake of the ftx debacle. It hasnt. Why . Because there is an agency head out there who thkse already has the authority to adess this uniquely 21stcentury problem tha couple of statues passed in the 1930s. Hes going to waive his want and say the words investment contracts are ambiguous and that is want to suck all of this into my regulatory orbit, en though when that same person is a professor that this robably a job for the cfdc. I was just gointo say lets assume for the sake of argument that i agree that in 706 congress has spoken to the prlewe are not applying a fictional presumptio congress has told us we want the court to decide questions of law. Solicitor general in the last gunt talks about how litigants will be lining up for state cases decided under step two to reopen challenges to the agencys interpretation. What you o say about the destructive consequences of erruling . I think the solicitor general will be sinthe exact opposite if this Court Overrules this decision. What uld say is this court has moved away amically from certain methods of teretation. More dramatically than just we look at legislative History Lesson we used to. Implied causes of action as far as i can tell ourdad. That didnt mean that every decision that s cided in the battled days was ruled. That is a little different. Those apply causes of actions, the court was saying this is what the statute means. I do not apply to the cause of action or whatever. This would be different. The court would just be sang it may not be the best, but the agencys interpre is reasonable. It does not settle the same way that some of those old implied causofaction cases did. If you dont want there to disruption all you have to do is make the precise level generality that you alluded to. I would think in every one these chevron cases the question is is the agencys terpretation of the statute lawful . If the cot has already held yes, i would think that would settle thmatter. As i say in a brief, thly reason i have any doubt is because of brand brand x is a huge embarrassment for the government and the governments friend. I looked through the amicus and i unted 13 amicus briefs. Only two sided brand will be nice for that decision to just go away,wouldnt it . Sorry, Justice Thomas. Laugh if that absolutely makes clear is is a reliance destroying doctrine. Frankly if you saat chevron is over d all of those step two cases that were dedeare going to have starry sizes affect because of e level of generality point, you will be giving you stability to the law. Ll be improving stability. That is an important distinctiofr kaiser. The kaiser doctrine r had its brand x moment where this court make cleathagency can flip 180 degrees. Indeed in kaiser itself it suggests that the opposite. Here with chevron we know this is a reliance destroying doctrine here is another thing to think about in terms kaiser. As i read the courts decision in addition to the fact that we know it doesnt directly speak to chevron, i also read it as all this at the unit a special justification. I ink weve offered special justifications in droves. Specjustification beyond the decision. I do not of a case where you would defer when the lent decision did not cite the relevant statue at l. This would be a different world if chevron went in anrussell with 706 is at despite all textural indication it forecloses review of statute. I suppose i would veto be here making every singlestarry decisis argument. That is not what chevron it did not mention the relevant patch you. I do not want to be seen as running away from the starry decisis factors. I am happy to walk through all of them. I think all of them cut in our favor. The decision is dously unworkable. Nobody knows what ambiguity is. Even my learned friend on the othesi says there is no formula. That is an elaboration of at the government said the last time, which is nobody knows what ambiguity means. Lets talk about reliance and talk about the brand x problems that are very serious problems. I love the brand x case, brought their regulation provesa perfect example of the flipflop that can happen, but inot my only example. There are amicus brief to talk about the National Labor of relations were flipflopping on everything. Ask little siabout stability and reliance interest as their fate changefr administration to administration. And then you get to the real worlefcts on citizens that Justice Gorsuch alluded to. Wod like to emphasize its effect on congress. The court waorinally doing chevron it was looking only at a comparison between article two and article three. I ink you got even that tion wrong. It failed to think about the incentesit was giving the article on an. That is what 40 years of experience has shown us. In 40 years it has shown that it is virtually impossible to legislate a meaningful issues and major questions, if u will. Righnoroughly half the people in congress at any given int ofwant to have their friends in the executanch. Their choice on a controversial issue compromised and forges a longterm solution at the cost of maybe getting a primary allenge of orange dad, just call up your buddused to be your call staffer in the executive branch now and have him give everything on your wish list, based on a broad statutory term. My friends asked for empirical evidence, i think you just have lk at this or stockett. s been one major rule after another. It hasnt been onmar statue after another. I wouldve thought Congress Might have addressed the loan forgiveness if it was such an important issue to on party in congress. I wouldveght they would affix the eviction moratorium. I could go on and on. Ey dont get addressed because chevron makes it so easy r em not to tackle the hasues and forge a permanent solution. My friends on the otr de also talked about this great. It leads to uniformity in the la i do nothing that is in itself. If it were up to meifyou think uniformity was so great lets have uniformity and the umb on the scale of the side of citizen. The kind ofuniformity that you get your chevron is something only the government can love. Every in e country has to agree on the current administrations view of a debatable statue. You dont get the kind of uniformity you actually want, a stable decision to assess th is what the statute means. Mr. Clement, can asked the meuestion i asked mr. Martinez about why chevron was initially popular . People who were ry sophisticated and had a deep understandinof how judges decide what a stut means and a deep understanding how administrative agencies work thought that chevron would be an improvement because it would take judges out of the position making what were essentially policy decisions. Were they wrong then and if not what if anything has changed . I think they were partially rit. Let me say what has changed and athasnt, i. E. What the missed. What has changed is we have come a long way in statutory interpretation. U know, if chevron was a response to some of the excessesofthe d. C. Circuit in the freewheeling days of the late 70santhe use of legislative history and oh, by the way, the text of ts statue appears in the margin of my opinion. Igoing to talk about it again because im off to the races. I think the focus is much greater on the text of e statute. Once you recognize that yo recognize the problem deferring at a certain point to the agencies. Lets look atthtrack record of the agencies before this court. They are so expert they should be able to persuade you se after case that they are getting the statues right. Bymycount and Cato Institute and their amicus brief brief sincthcourt last friday chevron the administration is batting ou300. Expertise is not all its crkeup to be. That is true even in the most complicated cases. Look at the American Hospital association case. I dont think you will find a statue that is more complicated. This court had no trouble unanimously say th you cann have hospital chain specific pricing without first doing a survey. I dont know rather you can say we have none. I was going to say that. No one was trouble to write a disst. Let me put it that way. I can use otheexples. In the case where the court says chevron wasnt appe because of a procedural defect. It split the core 54, but how did you decide the case . It had a definitive cannon. Do you think the Labor Department is the expert on distributive canon do you think the courts are . Thank you, mr. Clement. E answer from mr. Martinez on several questions about what happens when you get rid of chevron in this case with skidmore. If gilmore is going to occupy a more prominent role Going Forward, i woke to know exactly what your understanding of that principle is . My understanding of get more consistent with Justice Kavanaugh is it is not a dierence. Turn. Cae doctrine of weight or persuasiveness. As i understand and i suppose the defect as well, i think the skidmore test allows you to consider the weight of the agencys views, but then consider if the something they ca up with right after the statue was passed . Soitctually sheds light on the meaning of the statue or is it somethinth didnt adopt until 20 ars later . Or did they get that one policy ter the policy was passed and flipped it over 20 years later . All of that isomhing skidmore then account for the chevron has never been caused to account for. You can modify it and try add all of that, what i do think thron experiment has failed. It is usually described as a deference doctrine. People talk about skidmore deference. Yes they do, that puzzled me a little bit. I went to the dictionad looked up deference. The most common definition is yielding to the will of another. I think if that is the definition, you should not apply chevron or skidmore rather in a way where you actually say all right, this is super close. I think i have the right answer, but im going to yield to th position of the executive branch. Skior has been understood or said that the persuasiveness of the governments interptaon depends upon the circumstances ansome of those you enered. Call it what you will, that is what it is. I dont mean to be pedantic. Thk, get deference gets you to footnote 11 land in a Junior Varsity way. I think that would be unfortunate. Idre means if we think you are right we will tell you u are right. The idea that skidreis going to be a backuponce you get rid of chevron , that skidmore means anything other than nothing. Re has always been nothing. Justice jackson, the earlier one would beg to diff wh you on that score. He thoug was quite important. I think if you look at the idmore case itself, it took into account the view of waiting time. Ironically enough in that ca said you cant have a bright line test one way or the the en has looked at this and its going to be more fact depeen we can take that into account. In some of the situat you are going to be able to look at the agencys expertise and make a judgment that this is in their favor and they have made some really good points. In other contacts with the the agency wants you to defer to his own viewwhich in this case is we ran out of money. It sure would be nice if we can impose a fine and continue to monitor these people and make thempay for it instead of us Justice Thomas . I guess what i am struck by, mr. Clement, and this folls from the skidmore thing. Skidmore is not a doctrine of humility. Chevron is. Chevron is a doctrine that says , you know, we recognizthere are some places where congssnal progression has run out and we think congress would have one of the agency to do something rather than the court. We acceptth. That is the best reading of ngss and also because we know in our heart of hearts that agencies know things that courts do not. That is thbas of chevron. You take that doctrine of humility and you put on top of it arry decisis, another doctrine of humility , which is to suggest we do not willynilly reversed things unless there is a ecial justification. Here kaiser said it is even more anthat. There is even more reason t to reverse something, because there have been 70 Supreme Court decisions relying on chevron. Because there have en17,000 lower her decisions relying on chevron. You are saying blowup one doctrine ofhumility, blowup anher doctrine of humility, and then expect anto think that the courts are acting like court. With re your honor, this court has on multiple locations correcd s own errors when it comes to statutory interpretationho to deal with qualified immunity, implied causes of ac in the encino motor case there was a canon ofruction that said exemptions the flsa provisions could be construed narrowly. This court overruled an event thatshld have no role to play in interprethe flsa. He did not run throh e starry decisis factors. I dont know whether you call it humility or just clarity, but when the question is judicial methodoly, think its very reared to ask congress to fix your prle for you. I dont think you want to invite ndor that particular fox into your henhouse tell you how to go about interpreting statutes or dealing with quifd immunity. In kaiser five justices, a majorityofhis court, make clear that our deference with subject to normal judicial or normal principles of starry decisis. To the extent there was a ratcheting up ratcheting down, it ratcheted them up. In unod that deference decision supported the basis for tens, hundreds, thousands of other decision so i am going at a disadvantage in debating what exactly kaiserth. The way i read kaiser is it said that you need a special justication beyond a decision. I think we he ven you that in spades. Kaiser did not, with all due respect, russell wrtlwith the opinion. I think i can reconcile al your law by saying when it is a procedural rule or court made world of interpretation, maybe we look same factors. They do not apply with the same weightasthey would if they were substantive result. That does make sense, at least in our view of the world, we drew lock fm a bad terminology you dont overturn thles. Section 1982 still has an applied cause of action, 1981, those cas nt get overturned. Justice gorsuch . One lesson of humily to admit when you are wrong. Justice kolea, which took chevron, which nobody understood, to include this twostep rule and turned it into what we now knowand late in lif he came to gret that decision. What we make of that lesson ouhumility . I do think reconsidering rticularly a methodology error is part of judicial humility. I do think you look at e Justice Scalia reopinion, one e things he said most clearly and said along with our decision in chevron with heedless of section 706. If youre looking for a special justification to overturn an inn i think its got to be at the p the list. Ank you. Justice vanaugh . A le questions, first on idre i want to say how i thought about it. You tell me whether this is wrong. That it respects contemporary is contemporaneous and consistent interpretations as evidence of the proper original meaning of the statute because that icommon sense in statutory interpretation more generally. If it was contemporaneous and be correct. T is more likely to that is with respect, but the word deference, i would not have used there. I think you have that exactly right. One of the virtues of looking idmore that way is it is consistent with the inple this court articulated in the crisp number christopher against smith case, sometimes the industry is the e with a consistent longterm unrsnding goes all the way back and sheds light on the original meaning. It seems skidmore allows you to say that the industry says it has taken a position consistent from the beginning and the agency flips 25 years into the enterprise, skidmore gives you the tools for saying all right, you are going to lose that case. Right. In a big difference betwe skidmore and chevron is when the agency changes position every uryears that is going to fill you chevron deference, but skidmore with respect to that interpretation will drop out. It is not consistent and coemraneous or consistent from the contemporaneous aspect. Absolutely. It is a matter of a difference. If ok at some of the things Justice Scalia said in e beginning when he was enthusiastic about the doctrine, hevied the fact that agencies flipflop as being an affirmative virtue. Justice kagan raises an important point about humility in times of chevron. That is an important concern foanjudge. The flipside is the other concern for any judges abdication to the executive Branch Running roughshod over limits established in the constuon or in this case, by coress. I think we have to find orthat is why its hard to find the right balance between restraint and letting the exec getaway with too much. On that front, there was questions earlier, do dg really rely on chevron . I would love to speak to that. I think that important consideration. One of the premises in e first argument was rarely get to chevron step two. There are statistics. The most exhaustive survey of over 1000cases by barnett and walker we cited on page 33 of the blue brief. If found course were rich except to in 70 of the cases. The Cato Institute bryou might think things have gotten better becae at was a longitudinal study. You might think thgs are Getting Better because we have signal chevron is on life support. Ran the numbers from 20202021, it is still well over the time your avera dge in the court of appeals is getting to step two. The speech hasnt been updated, but asaras i know he still hasnt gotten to step two one. That is unsettli the law, a disconnect that is very hard to get yourfingers around. At asif one circuit says the statute means x d another y everybody can see this court can decide the case. If course are deciding that one step two in wain a radically different i dot know how you unearth that. I think that is another hugeoblem. If chevron was erled i think your brief says we should go ahead and decideth statutory issue. Can you speak very briefly to why . And it also be a lesson as to how far judgesill get astray bypping chevron. Another problem with chevron, ill sry to be brief, it tends to fus on one or t terms. You lose the context of the statute. If you have the context of the statute and the fact the only other places that put these kinds of fees on fisheries, they put a serious cap and they did it for theost wellhealed fisheries orn certain circumstances, this is an easy case. Thank you. And Justice Barrett . Can we have host of cannons, cleartement rules, some are constitutional inspired. East argument aut whether chevron should be thought of a a part of theackage. She said chevron could be distinct that chevron was unique. Can you address that . Ihink shes right about that and it sits throughout in an island and thats a part of the reason to overrule it. I think all the other cno that i could think of areully consistent with the no vote statutory interpretation. I mig be missing one. But the ones i think of when u doing the construction, you take account all of those cannons. Chevron is the only one i know that says in a certain point, you jtop that stuff and you rt of surre even under circumstances where they would keep going. Onvron does that. One last question. You said on our docket, weve had multiple cases in which they hav come up. Do you think that chevron is goingo solve that problem . In a lot of the cases, they have hung their hat on words like appropriate, you know, and the ki o language and you can tell me if you disagree, but when a statute uses a word that leaves room discretion like appropriate and feasible and reasab. So dont you think they will still contieo rely on words like that in ways that might not, you know, limit our emergency docket . Im not so naiveo say it is going to solve all the problems with t emergency docket, but it is going to make it a lot better. Su,hey would try to use modify, which is bold in light of at t, whatever. They pickede of those words, but that broad band c is coming here andt is aase that shouldnt be. But some days, somebody is going to litig whether it is a crypto contract just as theyre confident that a. I. Is going to get here because of the statute and it is more likely they say there is som scientific thing. But my own view of t is its not a cure all, but its going to move things very much in the right direction. Thank you. Thank you. General, welcome back. Thankou mr. Justice. And may it please the court. Throughout the litigation at times thisorng, petitioners have characterized this case as presenting a fundamental question of the separio of powers and a test of article iii. Will courts continue to say what the law is . But ian to make sure what doesnt get lt in the shuffle is that petitioners have made an important conssn that i think illustrates tt the issue here is actually fararwer and their attacks on chevron lack merit and are unnecessary. Eoncession ishi petitioners acknowledge congress can expressly delegate to agencies the authority to defin terms and fill gaps. And imagine if the statute said they were asked to define the administrator. I take both pitners to give that up andecnize that is a degation and courts should respect that. The role of the court in tha circumstance is to make sure the agency has followed the procedures and stated within whatever outer bound cgress has set. And all of that complies with th constitution, of course, because congrs has the authority to delegate the gap authority to agencies and the ecutive has core article ii authory to fill inhose gaps. Thats the core exercise of the executive power. Then the article three courts are just fulfilling their judicial role when they will give affects to what congress ha de and their choice t rely on the agency inhat regards. But i think what all of ts shows is the constitutional attacks on chevronnd the suggestion that it is egregiously wrong, lacks merit. Because there n constitutional distinction between that kind of eressed delegation and the delegations recognized in chevn. If congres can expressly invest in agency with the authority to interpret the law through an expreed delegation and then they could do the same thing. Especiallyn world where congress has to provide the agen wh the expressed authority to carry the statute into operation with the effective law. No w can debate whether they drew t right line in identiin exactly when these delegatisave occurred. I think they got that right for all the reasons that iri to explain this morning. But i think it is important to recognize that that debate dsnt have a constitutialimension to it that will fall out of t equation and that it is just a question of whetherhe drew that right line. Ifou recognize thatnd what is left over are the practical concerns that have been rse about chevron and i dont want to show y the force of the concerns that some membe have articute but those concerns are manageable. The court cldo in this case what it didn kaiser and it could clarify and articulate the limits without taking the asc step and that is the right thing to do there and that they will be calli a part of the rules here. In this case, they will decide to council in favorite of retaing chevron. I welcome the courts esons. And how do we see the silence . And so i think it woulde wrong to suggest that you can nely categorize cases as tse involving silence and those involving ambiguity. I recognize that y spoke to those terms and they were trying to be showing you where they directly resultedn thessue. And they are going to have to appoint to the rule and the directive from congress to put that into ifect, where it will be at least the basinof this context. And that would help with their auority and this is the perfect example as they said that the act here is silent on the issue of whether t industry could beequired to pay for monitors. We will have four that we pointed to that will undermind the authority and that i says that they c require the vessels to carry the monitor. And it could include a private third party and the penalty provision that says in t circumstance where they have contracted with the private third party and not paid. The agency can penalize. Finally the authority t enact necessary and appropriate terms. So we dont think this is a case about that at all. Yes, again, we are back to the same question that thehief had of mr. Clement. That is exactly like the bread and butter of what we do every single day and we can resolve tha we think that the stu will be clear. The fact that you think it is clear andhe thought it was ambiguous should tell us something, shouldnt it . No, i disagreeit that and actually if you look at what the dc circuit and the First Circuit were doing in these cases, they recognize the force. They are true and they will acknowledge that ultimately it couldnt conclude with confidence that the statute definitely authorized the agency exicly. But you think it does . And yes, under step o, yet here we are. I dont think it is usual to think that they have the clear interpretation of the ate on its side and thathe agency has acted reasonably. Its a trigger that nobody knows what it means. Lete ask you about the delegaon as your example i the oni, which is interein and i totally understand that statute that does and you make up what rate you think. It might pose a delegation or it might not. But we know t they delegated. Thats thing. What youre asking u to do is to infer fromhat ambiguity that may not be the product of any intent at all. It might mean more in some circumstances. And not that we should go to look at that context and other clues within that statu itself to determine who has the bett reading, but they should always win that case. No, nott all. That will be a different tool to finish up. I understand the delegation of one cte, but i struggle to see if we should infer the friction of delegation. Iisagree that there is a fiction o delegation in the circumstances that will trigger chevn. At the outset i want to make perfectly clear that of course the stury context and structure is one of t important tools of interpretation that a court should use as step one. If were in a world where the court can walk through tse factors and aertain that congress spoke to the issue, let me be very clear, we recognize that the suld get us backo what congress was saying. If youre suggesting then in a world where congress hasnt actuly spoken to the issue, the court should ge no respect at all tohe agencys interetion. I dagree that that is imementing congress intent. What they recognize in a circumstcehere they have not spen to the issue, given the exess grant of Rule Making Authority to the agency. And necessarily recognize that the agency is going toave to fill the gap along the way. Its perfectly sensible to consume they want the agency to dot. Let mesk you about michigan rses epa too. It is somewhere in between s forth and to come up with rules. About the meaning of the word and. D essentially appropriate is necessary. Did theou find there were outerouaries there that can be exceeded,ight . Yes, absolutely. We are suggesting in that world. So you can do that, right . What im dputing is the idea there is also an answer either way, rather than the discretion. There is an agency . Es under review. If indstood my friend correctly tod, he seems to sues in all context, you could look and say they dictated that or an answer with respect to how did they find that source . What they recognize and what think is just absolutely true as a mte of the on the ground realities andow they legislate, that cgrs doesnt tually did all of these issues. Wh cgress hasnt decided it and some follow on, they will need to fill in the gap. Its a question of whethert should be the courts or the agency. There is a presumption here that they intended it to be the agency. But always sub to the guardrails about making sure the construction is reasonable. Mr. Clement suggested that we should ignore chevron because it did not deal with 706. Do you have a theory as to why they did not address 706 . And how do you respond to this part of the argument . Yes. So my theory for why they did notddress 706 is because 706 has never been understood at any time. At the time it was enact or in any of the eight decades since to have dictated the review with inherit attention. Its further information on what thepa own history shows. What i was trying to explain, this is a situation where the court has recognized that the ep wasnt meant to create dramatic changes. It would have been a dramatic change going from all the principalseployed and the case law ilung immediately leadin u to the epa to a stdard on a prospect of basis Going Forward would have been a big change in the relationship of how judicial reviews. No one mentiedhat. No one suggested it was the ritay. Its never how this crt interpreted it. And Justice Barrett in response to your questions about t epa, you know, its not as though this is a one offecision. The court has had any number of decisions over 70 applying chevro i think in each and every one of those, its important to recognize there hasnt been it this kind of attention between the epa and chevron itself, which further s the courts own understanding of section 706 is entitled to a waive here. I have a question the relationship between brand x and your suggestion that we kaerrized chevron essentially. I understand brand x to a court must let go of its best interpretation of the s if th advance in a plausible on one way to handle this is say what we said in the kaiser context that no, u all the tools and come up with your best interpretation. Why should w take on brand x . If you understdrand x to hold that the court thinks it hashe best interpretation and figured out what congress was saying abouthis issue and congress spoke. Nevertheless has t adopt an inferior interpretation, then thats inconsistentit our approach. We dont read brand x that way i understand brand x to be distinguishing bwe step one and step two holdings. So if there is a step one holding where, in fact, the cot has got it at the end of the day and recognizes that congre spoke to the issue, theres no roomnd brand xo let the agency come along under the fact and say they should be understood in some different wa its only in the circumstae where there was chevron granted under step two. Part of that is recognizing thats because the stu was interpreted at the first time to not actulyupply and answer dictation by congress. They have the best answer att is a step question and it will seem to me that having the bes answer will suggesthat you engage in statutorerpretation that came up with your best answer that might be really hard. So sometimes if the court outside the agency context confronted the difficult question oftatory interpretation then you might say look, im 90 confident or im 95 confident but i mean i think yr reading of brand x mht depend onhe trigger for ambiguity is, right . I do tnk that i will be clearly demarcating the le between step one and step two holdings, so at least the rules ofhe road are clear with respect to when the agency might have been granted to revisit theiprr conclusion. If youre suggesting theres a way to rebrandra x and factoring into the equation the possibility that theyea to delegate to the agency that there is a better interpretation, the best terpretation that congress resolved it. I just dont thinkhat you would ever get into the brand x scenario. That sounds like a ruling. I take the point that there a some inherent lack of precision in a term like ambiguity. Ats not something thats uniquely created by cvron, of course, there are tggs in the law and all kinds of contt. But its also that kind of thing that might be wearing you. Its not anything thats cured. As i was saying to Justice Kagan in the first argument, i think itll open up the world where there is a lot of inconsistcy in how judges are applying the principles in the case of biity. On that point, some of the briefs point outhe experience of the states wit chevron and some dont have chevron and other states havent had mething like chevron, but eliminated i in recent years andecades, and they are experienced, they say, has shown its workable in such a regim so i just want to make sure y can respond to that . Es, so my understanding is about half thetas still have something, a kin to a principle of indifference or a variant that looks like chevr. But i acknowledge that se states have abolished any indifferences. I d tnk there is a lot less concern at the state level about the lack of uniformity or consistency. So one of the values that chevron implements and recognizes for why they wld prefer for the agency to be able to set these rules and for the courts to respect that is the value of ensuring there are unifuleshroughout the country. I dont think that same experience right now e in the state level. And as well, a lot of the states and the political responsibility could differ as well because many sta court judges are elected. Did i understand you in Justice Thomas to say chevron doesnt apply to constitutional questions . Yes, it isy doctrine that applies in sry interpretation. It could have an effect on that does it apply in that siatn . The department of education will have some rule. This will apply to a schools, you know, and it could apply to religious schools because this is how we interpret, you know, whatever the impact of the re is. When we interpret it that way, we dont think that there raise any free exercise problems. So is there a chevron difree there . I think if a particular interpretation creates serious constitutional problems, then they avoid instances. One of the traditional tools that the court could consult in order to understand if congress is up to the issue. The agency says they dont thin this causes particular constitutional problem. That is our expertise about how we apply this provision. Ve that, we think there is no free exercise problem. N a court would not defo that. This is all happening inte one. I think this is a part of the process if the cou determining whether congress spoke to the issue and the court has been very clear. Th difference doesnt come in at all unless you get to step two. The agency views they deserve the chevronrencor you know, its take on one of those step one issues. Its getting anyifference in that stage of the case. I do want to take anoth shot at trying to explain why i believe petitioners are wrong to characterize chevron asesng on a fiction. What they have tried to say is this dsn really reflect what congress is intend iting. But i see three problems with that. The first is i think that actually looking at it from a matter of first principles, there i a lot of merit and wai that in a situation there are good reasons for congres to want to vest with this kind of authory. And it is the recognionhat agencies of necessity are goi to have to fill i those gaps and they a complex and chcal and they are going to require the agencyo draw on their long standing experience with the program and the expertise thats accumulated in woing with that industry tt will also encompass i think inheritl se policy. The agency could run a decision maki process in doing this. Chevron only applies in ciumstances where there is a sufficient level of formality and that it is usually the rule making. Thats the process where they could come in and tell the agency here are our views. Here is what you should think about. And that notice point is very important it sms to be your argument. Because that raonality that they would want to favor the government rather than an opposition equally rational that it wouant to favor the individuals. An if you assume that the government has provided everybody a notice and an pounity to be heard. But often the government will seek the difference for adjudications between individual parties and then apply that to everodwithout notice to them. Or difference for interpretive rules for which no notice a comment and let ane formal rule making forhe proceedings is required. And s there are many cirmsnces in which they will see the dference for a view of the law that affected parties would have no chance to be heard about. When do we do that . Nd with respect to the category, it is true that they have not ruled out that they ulreceive the appropriate circumstances. And soou would have us take that . I would just have them reiterate. And it is not as though any is going to. Nobody knows what that means. And they would complain about that too and so i dont know with that and is that another factor . It is another important check of ensuring there is a delegationere and that they have used that appropriate procedure. And so they will be out . They would raise a much harder question with that and do they rule in or out . Theyave not ruled them out and if you thought what would you have uso . And their interpretive rules is my question. I dont think that you could treat them as a class. And the interpretive rule. Sometimeshe are required and sometimes they arent. And you keep thon, im sure. Yes, weertainly think that they will he that core application. It is not the same ability to take these input from them, but the court has emphasized wre it has been applying chevron that there i a possibilit o the centralized Decision Making process in order to ensure the ancy is gathering the facts and ty will have the tools in their disposalan that it is to have them do it tou the litigation. The very least, it is easy to see w ty might think that is no as good of an alternative. And that they couldom out of nowhere with respect toha party. We will have a brief from that Small Business. Everybody. And until it is recnid. Theyou have impacts on theares that are outside and even that who is bnd by the president could appeal it. And that will be under your view and that many peop whout notice, any notice or any chance to be heard are bound. And so my concern what i was ng on, with respect to litigation is that it not as though every party will stand to get back b thoseases to know about it. And look at the brief that was filed. And of course they wont have notice and when that government comes for them, they get to take their c to court. And congress has often expresse a pree for not having thesesss resolved piece by piece in different courts around the country. A that isvided for foal and informal rule making and adjudications. It is rules that will be resolved that way. For a long time those processes have not been ud, and they rely on the rule making. Really now today, perhaps as a product of chevron and agencies that have advocated that and moving more and more towards interpretive rules, where they dont have to provide notice. And i think that it circles us back to the fact they do not t tt those rules are going to trigger the differences. So at least in that case that they have looked at from the agency and it is important process. And on the front, they would talk specificall aut that in rticular and how that agency will move fm that post fairly often. Theres a concern raised there and that is a situation that you cannot suggest your behavior ahead of time necessarily based t new rule andhe new changes and what this h done in that case that will affect the people that dnt have a notice or any response to that brief or scenarior you want to tell mehy thats wrong . And that is the set of concerns and that theyil have to justify it and whatever tools they are cruising. And thathe are going to have to justi what they are doing. And in particular, they have focused a lot o the idea and that they arehanging their minds and the burden that they will need to takent for the interest and the will get put into state farm, i think, but with respect to that, they could take tho kinds of consideration intoccnt. Thank you. Did you want to finish your answer on whatou would say to your friens view of intent . So i was trying to defend a a matter and that it is the first order answer on this and that there are often really good ass whyhe would want an expert agenc to take that first crack in filng the law and there is it no way around it and that they have got to dit and this court has saidha they e terpreting them underway and what that law means. And that in this situation wre there is more doubt and that is what congress would have expected that it is a precedent from the court. Its n like they have flown under the radar and they are unaware of it and they dont realize its out there. An what they are doing. Thiss one of the most biggest desions from that court and in particular that i would think that the intent will become all the more sound because they have not chosen to displace it and that it willrigger that strong form of story that they applied in kaiser when they recognize in that situation where congress is actually the best constitutional actor tsomeing about it. And that it doesnt matter that they thought ngehem in any kind of way. Thank you, council. I doav one more. This is not in that intellectual e request, but how do you respond to their point aut the interpretation that this paicar statute and his reliance onhe theoryha congress definitely, when it capped the big industryayg 2 , 3 , whatever the number is, they wou not have wanted small fishermen toay 20 . And so we will have a range of reaction to that and i was suggesting that we think there is aot in this statute to Regulatory Authority here and that specifically contemplates that the vessels might have that relationship with the monitors and therefore might be in a siation where they have not paid and that there can be circumstances i tt footnote and the way that the other two monitors, they were governmt monitors, correct . And so this is our program that my friends have reliedn to see the negative statute and two of those will apply and so it is very different and they pa fees t the government including entering into tt relationship and those contractors that will pay for Administrative Expenses and that Program Operations in this way. It might be possible tt they will move in and be required to ntct with those monitors, and that is the wle thing and it doesnt work because they wi put that penalty in that sectio of the acthat will apyo those vessels. It is meant to tack on to that progra that will be inexplicable. They say to wrap this up, its unheard of and i want to be clear that they are lching on to a part of the rule that acknowledged that t costs could go up and ty acted in response to that and created to respect some of the issuesn these cases in that range. So this is something that they could look at and rie that they wererbrary for that cost and rightfully so. And just wanted to ask what would that mean . Would it mean doing what they did to that difference . And would there be adjustments that would be necessary . Ul they want to g further in any respect . D what does it mean to chevron . And so i think that the courts in this case that they will have some concerns about e issues, they could do four critical tng which will draw heavily and look different i particular. They will need to reemphasize that analysis. Thissrawn from kaiser as i mentiodefore as we have seen the lower courts. And in respect to this. And that they dont wan to weigh that flag andont give up just bau of the statute that is hd to parse and instead there are a lot of hard question tt will be solved to reveal their intent if they apply all the tools and the really exhaust them. So that will take care of the whole category of cases. At sp two, the court could again do what they did in kaiser, which is to reinforce that reasonableness i not anything that will go and you can see them saying at times that the government willin and thats not the standard. Even at that stage, it is differential, but the court should be enforcing a bounds in that statute and making sure th have not transgressed those. Thats the third thihey could do and that theyil get off that ground wre you have that agency being directly empowered by congress to speak with the force of law and then exercisi aropriately the level of ahority in implementing the statute. So i think that is an important thing as well that there are certain context in wch the agency is not actually speaking with the force of law. That will be fitting with the delegation that they have provided this is a little bit different from kaiser,o emphasize that it is always important to look at any indication that chevron does n mean to apply. What im thinking here o our things like situationshere the nature of the statutoryueion as the court has said i other cases, it is not one that you would expect them to giv to the agency and through the major questions and dont want to rule out other scenarios. And congress c adjust and react and take statute specific steps and suprt should Pay Attention to that and they should not dictate to this a that instead it is rebuttable. And is there something about that matter now . And so i think that already, they are in an area where they are under burden to duff and that they made clear where they need to expin why those shouldnt alter what ty are doing in that kind of revised approach. And they also frequently if it has come from a rule min will have to runhat process all over again and that it will take a substantial investment of the agency resources. In that context t, they could make sure the agency is following therodural requirements to ensure that i has informed Decision Making. In the end of the day, if they could run that gauntlet, the the fact they have some discretion to change their approach is not sething to say it is kind of a bug in that statute and it is a feature where congress would want to give themhe ability to adapt and to new information or the experience that is accumulated under the prior proam Justice Gorsuch . Justicarrett . Tank, council. Rebuttal . Jt a few points. First my friend started with expresdegation and it will show all theblems with this implied delegation. At they will do is delegate implemenr exercising the authority and it does not do what they will rep to do, which is that autho but you can put limits on the tax and it is a perfect example of that and they do raise that concerns. You can check for that as well. And to principle than that silence, and in terms of, know, this premise that it is entirely fictional and that in most cases it is sometnghat they did not have enough vot to make it clear. And every statute has a binary answer. Ere are statutes like that and there arehings that the salesperson who is involved in the servicing of cars, i say yes, but you can say no and it is binary. Bu y cant tell the two apart. At a certain point, they look ous. But you know what can tell the two apart . Athe construction will find out wt that word means and elasticity. Telecommunication service is not. And they can do the job. Now let me say one thing about the mystery of why section 706 did not appear in that decision. There is a really easy answer and the courtsor of stumbled into these announcements that you should go about that and it was ake. That is a special justificationo revisit the decision and to get the decision right. Let me say o word about expertise. They do not have t go hand hand in a way that will preclude that review. Wee the court of inrnational trade. They all deal with technical specialized issue every one of them, t legal questions are reviewed. And that is the basic understanding with the statute like section 706. Lastly let me say this. You cannotserrize the chevron doctrine without overrulingra x. The fact you can take into account the agency had flipflopped and it was a par of the rational with kaise before you applied it and that is a feature, friend and that a feature and you cant kaiserrize it without overruling br x and that it just went out the window and we might as well get this right. Chevron imposed a twostep rubric that was fundamentally flawed. It simply asks how is the statute best read. Thank you. Thank you, counsel general. The case is submitted. The Honorable Court is now adjourned until thursday, the 8th of february at 10 00. Were on the