>> we will hear argument next

in case 22451, local right enterprise versus raimondo. >> mr. chief justice, may it please the court, this case -- commercial fishing his heart. space on board the vehicle vessels are tight and margins are tighter still. therefore, for my client having to carry federal observers on board is a burden, but having 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 them at 2%-3% of the value of the catch. the agency showed no such restraint requiring monitoring of 50% of the trips and a cause of 20% of their annual returns. nonetheless the court deferred to the agency because it blew

-- view the statue assignment. there is no justification for giving the tide to the government. both the apa and constitution of what his principles call for de novo review asking only what is the best reading of the statute. asking instead is the statue ambiguous is fundamentally misguided. the whole point was to bring clarity and not to identify ambiguity. the government defends this practice not is the best ring of the apa by invoking starter sizes. that is doubly problematic. the issue is only chevron's methodology and title to reduce the effect. we have no beef with the chevron clean air act holding and we cannot take issue with apa holding because it failed to mention that statue. second, all of 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 flip-flopping. the reality here is the chevron to step has to go and should be replaced with only one question, what is the best reading of the statue? i welcome the course questions. >> you've heard the government for the generals argument with the use of mandamus -- mandamus as a basis for deference. could you comment on that? my understanding of mandamus is the duty has to be clear before it actually lies. i would like your comment on that. absolutely, justice thomas. i think mandamus is a critical recognition of the fact that congress can remedy the availabilities in particular circumstances.

that is the right way to understand the mandamus standard. that is quite different from telling the court they are to engage in as congress clearly did. but then say there is a point in which you cannot actually give us the best answer because you are deferring. i think it is important from a separation of powers purpose to understand it is not as remedies, there is an accountability difference. i suppose congress could decide we are going to go back to a world where the only review of action is mandamus. congress would then be fully responsible for that highly unpopular decision. that is the difference, the fundamental difference from a separation of powers stamp between a limitation on remedy and specifically telling the court in the apa specifically you have the interpretive authority over statues no less than constitutional issues, but then overlaying a doctrine that says what we are doing is interpretation. that is the critical thing about the interchange between

footnote 9 and footnote 11. footnote 9 tells you as clearly as i can what you are doing a statutory interpretation. in footnote 11 it says that a certain point you stop doing statutory interpretation, even though you think there is a better answer. you refer to a different branch of government. it is not the branch the framers gave the interpretive authory two. it is the branch the framers gave the implementing authority. i think from that standpoint chevron is a fundamental and egregiously wrong decision that gets it wrong on the basis of separation of powers. >> there is such a contention in this. interpretive authority means discretion. it means there are multiple meetings that you can take from something and someone has to choose among those meetings. it seems like most people agree if the statue uses reasonable that congress is delegating the definition of reasonable to the agency. the agency is deciding

what is reasonable within some outer limits either set within the statue or within the law. the point is, it is great rhetoric, mr. clement, but we do delegate. we have recognized allegations to agencies from the beginning of the founding of interpretation. i am at a loss to understand where the argument 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 construed by the courts definitively would give the agency a realm of discretion in which to operate. there are other terms in which it is really a binary question. the fundamental feeling of

chevron is it doesn't do a good job of distinguishing between the two. the best example is brand ex. broadband communications are either an information service or telecommunications service. it might be hard to figure out which one, but there cannot be one of the tuesday mx on a thursday. >> wait a minute, it may be binary to you. i do know with the development of technology and with the development of how that is implemented in terms of transmission and the internet that over time that is going to change. the same issue even in the case that we are in right now, there were two areas the congress look that and you that -- reviewed for easy travel for obvious reasons. there is very little outside once those ships leave that the u.s. government can do to them. the other, i think it was the north pacific area, but the point is that doesn't mean that

similar problems didn't arise later and that the broad words giving the secretary the power to monitor and implement measures to ensure that his conservation goals were being followed wasn't given to the agency. those are the 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. the agency should have first crack at that. if they are not similar the court will look and say your decision was arbitrary and capricious. if they are similar we might say okay, this is all right. i don't know the answer. we really haven't 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 broadband today, the difficult to get the statue was last 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 binary answer. bringing it home to the statue, what i would say is if you do the chevron ambiguity test if i never like a pro it in the statue or maybe for some people carry. i think that one is pretty clear. to say that word is ambiguous i want to go to step two. but 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 classic case, i

forget the exact phrase. the point is you have a situation that in the worst fishery in the country congress that you may not not must-have monitors paid for by the industry. but if you do that you must have the fee at 2%-3% of the value of the catch. a congress that did that with the most well healed fishery in the nation, i do nothing possibly convey the authority to the agency to say with a much different fishery in the atlantic where it's small business people, where going to let you do effectively the same thing, but we are going to let you do it to the turn -- terms of 20% of their annual returns. if you strip away 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 best reading of the statute is that my client wins. if i have to, i would -- >> it seems were not contemplating the result. that may be right. you are saying this is about a case where there could be a number of interpretations. i don't think 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, which 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 point and say this is hard. i think the law has run out. in both cases you are supposed to take it all the way to coming up with your best answer. >> you were just saying the principal answers the question. if it answers the question, i

guess i don't 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, which is about something not chevron usa of course you would apply the canons of statuty construction before you get to step two. the point is in every other case you apply those cannons. if you're not sure about the answer you dust off the back and see if there are some other cannons. >> because you have no other option, what chevron is it is a recognition that in certain cases you apply all those tools and the conclusion you come up with is congress hasn't spoken to this issue. if you had no other option, 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 are two possible decision-makers. there is the agency and there is the court. what we think is that congress would have preferred the agency to resolve this question. when congressional direction cannot be found, because of the agency's expertise. because of the agency's experience, because the agency understands how this question fits within the statutory scheme. it is not a question that the court could not do it. it is a question of once congressional direction cannot be found, who does congress want to do it? >> justice kagan , i do not agree with you that the law runs out, even though there is an agency there. i would give you this, if i did i would say at that point let's give the tie to the citizen. let's not give the tie to the

agency. >> i don't think 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 interpretation. this is just one of them. it is just saying congress understands as well as anybody different institutional's comparative attributes and virtues. it does not want courts making, i mean it is law, but it is policy laden judgments. once congress cannot find direction. >> if we want to talk about what congress wants we probably should advert to the fact that we do have an amicus briefing in this case from the house. it does not want chevron. >> it has total control over chevron. it can reverse it tomorrow with respect to any titular statute and with respect to statue generally and it hasn't.

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 overrule chevron. >> everybody in congress doesn't want to do everything. >> it is really can be for some members of congress and not have to tackle on the hard questions and allow for their friends to get them everything they want. even if congress did it, the president would be to. i think the third problem, even more problematic, if you get back to that fundamental premise of chevron that when there is silence or ambiguity we know the agency wanted to 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 ambiguity yes, i don't have enough votes in congress to make it clear. i want to leave it 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 that with 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 challenger. you rely on a executive branch grant to do what you want. it is not hypothetical. >> you say we end up in gridlock, which we have now. >> what i am saying chevron is a big factor contributing. i would think the uniquely 21st- century phenomena of cryptocurrency would have been addressed by congress. i certainly would've thought that would've been true in the wake of the ftx debacle. it hasn't. why? because there is an agency head out there who thinks he already

has the authority to address this uniquely 21st-century problem with a couple of statues passed in the 1930s. he's 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, even though when that same person is a professor that this is probably a job for the cfdc. >> i was just going to say let's assume for the sake of argument that i agree that in 706 congress has spoken to the problem we are not applying a fictional presumption. congress has told us we want the court to decide questions of law. solicitor general in the last argument talks about how litigants will be lining up for state -- cases decided under step two to reopen challenges to the agency's interpretation. what you have to say about the destructive consequences of overruling? >> i think the solicitor general will be saying the exact opposite if this court overrules this decision. what i would say is this court has moved away dramatically from

certain methods of interpretation. more dramatically than just we look at legislative history lesson we used to. implied causes of action as far as i can tell our dad. that didn't mean that every decision that was decided in the battled days was overruled. >> 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 saying it may not be the best, but the agency's interpretation is reasonable. it does not settle in the same way that some of those old implied cause of action cases did. >> if you don't want there to be disruption all you have to do is make the precise level of generality that you alluded to. i would think in every one of these chevron cases the question is is the agency's interpretation of the statute lawful? if the court has already held yes, i would think that would settle the matter.

as i say in a brief, the only reason i have any doubt is because of brand x. brand x is a huge embarrassment for the government and the government's friend. i looked through the amicus and i counted 13 amicus brief's . only two sided brand x. it will be nice for that decision to just go away, wouldn't it? >> sorry, justice thomas. laugh if >> that absolutely makes clear this is a reliance destroying doctrine. frankly if you said that chevron is over and all of those step two cases that were decided are going to have starry sizes affect because of the level of generality point, you will be giving you stability to the law. it will be improving stability. that is an important distinction from kaiser. the kaiser doctrine never had its brand x moment where this court make clear the agency 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 of kaiser. as i read the court's decision in addition to the fact that we know it doesn't directly speak to chevron, i also read it as all this at the unit a special justification. i think we've offered special justifications in droves. special justification beyond the decision. i do not know of a case where you would defer when the relevant decision did not cite the relevant statue at all. this would be a different world if chevron went in and russell with 706 is that despite all textural indication it forecloses review of statute. i suppose i would have to be here making every single starry decisis argument. that is not what chevron did. 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 tremendously unworkable. nobody knows what ambiguity is. even my learned friend on the other side says there is no formula. that is an elaboration of what the government said the last time, which is nobody knows what ambiguity means. let's talk about reliance and talk about the brand x problems that are very serious problems . i love the brand x case, brought their regulation provides a perfect example of the flip-flop that can happen, but it is not my only example. there are amicus brief to talk about the national labor of relations were flip-flopping on everything. ask little sisters about stability and reliance interest as their fate changes from administration to administration. and then you get to the real world effects on citizens that justice gorsuch alluded to. i would like to emphasize its effect on congress. the court was originally doing chevron it was looking only at a comparison between article two and article three. i think you got even that question wrong.

it failed to think about the incentives it was giving the article on branch. 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 you will. right now roughly half the people in congress at any given point of want to have their friends in the executive branch. their choice on a controversial issue is compromised and forges a long-term solution at the cost of maybe getting a primary challenge of orange dad, just call up your buddy who used 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 to look at this or stockett. it's been one major rule after another. it hasn't been one major statue after another. i would've thought congress might have addressed the loan forgiveness if it was such an important issue to one party in

congress. i would've thought they would affix the eviction moratorium. i could go on and on. they don't get addressed because chevron makes it so easy for them not to tackle the hard issues and forge a permanent solution. my friends on the other side also talked about this is great. it leads to uniformity in the law. i do nothing that is in itself. if it were up to me, if you think uniformity was so great let's have uniformity and the thumb on the scale of the side of citizen. the kind of uniformity that you get your chevron is something only the government can love. every court in the country has to agree on the current administration's view of a debatable statue. you don't get the kind of uniformity you actually want, a stable decision to assess this is what the statute means. >> mr. clement, can asked the same question i asked mr. martinez about why chevron was initially popular? people who were very sophisticated and had a deep understanding of how

judges decide what a statute means and a deep understanding of how administrative agencies work thought that chevron would be an improvement because it would take judges out of the position of making what were essentially policy decisions. were they wrong then and if not what if anything has changed? >> i think they were partially right. let me say what has changed and what hasn't, i.e. what the missed. what has changed is we have come a long way in statutory interpretation. you know, if chevron was a response to some of the excesses of the d.c. circuit in the freewheeling days of the late 70s and the use of legislative history and oh, by the way, the text of this statue appears in the margin of my opinion. i'm not going to talk about it again because i'm off to the races. i think the focus is much greater on the text of the statute. once you recognize that you

recognize the problem deferring at a certain point to the agencies. let's look at the track record of the agencies before this court. if they are so expert they should be able to persuade you in case after case that they are getting the statues right. by my count and cato institute and their amicus brief brief since the court last friday chevron the administration is batting about 300. expertise is not all it's cracked up to be. that is true even in the most complicated cases. look at the american hospital association case. i don't think you will find a statue that is more complicated. this court had no trouble unanimously say that you cannot have hospital chain specific pricing without first doing a survey. >> i don't know rather you can say we have none. >> i was going to say that. no one was trouble to write a dissent. let me put it that way.

i can use other examples. in the case where the court says chevron wasn't applicable because of a procedural defect. it split the core 5-4, but how did you decide the case? it had a definitive cannon. do you think the labor department is the expert on distributive canon or do you think the courts are? >> thank you, mr. clement. the 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 would like to know exactly what your understanding of that principle is? >> my understanding of get more consistent with justice kavanaugh is it is not a difference. turn. call the 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 agency's views, but then consider if the something they came up with right after the statue was passed? so it actually sheds light on the meaning of the statue or is it something they didn't adopt until 20 years later? or did they get that one policy after the policy was passed and flipped it over 20 years later? all of that is something skidmore then account for the chevron has never been caused to account for. you can modify it and try to add all of that, what i do think the chevron experiment has failed. >> it is usually described as a deference doctrine. people talk about skidmore deference. >> yes they do, and that puzzled me a little bit. i went to the dictionary and 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 i'm going to yield to the position of the executive branch.

>> skidmore has been understood or said that the persuasiveness of the government's interpretation depends upon the circumstances and some of those you enumerated. call it what you will, that is what it is. >> i don't mean to be pedantic. do think, get deference gets you to footnote 11 land in a junior varsity way. i think that would be unfortunate. >> skidmore means if we think you are right we will tell you you are right. the idea that skidmore is going to be a backup once you get rid of chevron , that skidmore means anything other than nothing. skidmore has always been nothing. >> justice jackson, the earlier one would beg to differ with you on that score.

he thought it was quite important. i think if you look at the skidmore case itself, it took into account the view of waiting time. ironically enough in that case said you can't have a bright line test one way or the other. the agency has looked at this and it's going to be more fact dependent. we can take that into account. in some of the situations you are going to be able to look at the agency's 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 vi, which 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 them pay for it instead of us. >> justice thomas? >> i guess what i am struck by, mr. clement, and this follows from the skidmore thing. skidmore is not a doctrine of humility. chevron is.

chevron is a doctrine that says , you know, we recognize there are some places where congressional progression has run out and we think congress would have one of the agency to do something rather than the court. we accept that. that is the best reading of congress and also because we know in our heart of hearts that agencies know things that courts do not. that is the basis of chevron. you take that doctrine of humility and you put on top of it starry decisis, another doctrine of humility , which is to suggest we do not willy-nilly reversed things unless there is a special justification. here kaiser said it is even more than that. there is even more reason not to reverse something, because there have been 70 supreme court decisions relying on chevron. because there have been 17,000 lower her decisions relying on chevron. you are saying blowup one doctrine of humility, blowup

another doctrine of humility, and then expect anybody to think that the courts are acting like court. >> with respect, your honor, this court has on multiple locations corrected its own errors when it comes to statutory interpretation, how to deal with qualified immunity, implied causes of action. in the encino motor case there was a canon of construction that said exemptions the flsa provisions could be construed narrowly. this court overruled an event that should have no role to play in interpreting the flsa. he did not run through the starry decisis factors. i don't know whether you call it humility or just clarity, but when the question is judicial methodology, i think it's very reared to ask congress to fix your problems for you. i don't think you want to invite or candor that particular fox into your henhouse to tell you how to go about interpreting statutes or dealing with qualified immunity. >> in kaiser five justices, a

majority of this 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 understood that deference decision supported was the basis for tens, hundreds, thousands of other decisions. >> so i am going to be at a disadvantage in debating what exactly kaiser health. the way i read kaiser is it said that you need a special justification beyond a decision . i think we have given you that in spades. kaiser did not, with all due respect, russell -- wrestle with the opinion. i think i can reconcile all of your law by saying when it is a procedural rule or court made world of interpretation, maybe

we look to the same factors. they do not apply with the same weight as they would if they were substantive result. that does make sense, at least in our view of the world, we drew lock from a bad terminology you don't overturn thosrules. section 1982 still has an applied cause of action, 1981, those cases don't get overturned. >> justice gorsuch? >> one lesson of humility is to admit when you are wrong. justice kolea, which took chevron, which nobody understood, to include this two-step rule and turned it into what we now know and late in life he came to regret that decision. what we make of that lesson about humility? >> i do think reconsidering particularly a methodology error is part of judicial humility. i do think if you look at the justice scalia perez opinion, one of the things he said most

clearly and said all along with our decision in chevron with heedless of section 706. if you're looking for a special justification to overturn an opinion i think it's got to be at the top of the list. >> thank you. >> justice kavanaugh ? >> a couple questions, first on skidmore 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 is common sense in statutory interpretation more generally. if it was contemporaneous and consistent it is more likely to be correct. 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 at skidmore that way is it is

consistent with the principle this court articulated in the crisp number -- christopher against smith case, sometimes the industry is the one with a consistent long-term understanding 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 between skidmore and chevron is when the agency changes position every four years that is going to fill you chevron deference, but skidmore with respect to that interpretation will drop out. it is not consistent and contemporaneous or consistent from the contemporaneous aspect. >> absolutely. it is a matter of a difference. if you look at some of the

things justice scalia said in the beginning when he was enthusiastic about the doctrine, he viewed the fact that agencies flip-flop as being an affirmative virtue. >> justice kagan raises an important point about humility in times of chevron. that is an important concern for any judge. the flipside is the other concern for any judge's abdication. to the executive branch running roughshod over limits established in the constitution or in this case, by congress. i think we have to find or that is why it's hard to find the right balance between restraint and letting the executive getaway with too much. on that front, there was questions earlier, do judges really rely on chevron? >> i would love to speak to that. i think that is an important consideration. one of the premises in the first argument was rarely get

to chevron step two. there are statistics. the most exhaustive survey of over 1000 cases 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 brief, you might think things have gotten better because that was a longitudinal study. you might think things are getting better because we have signal chevron is on life support. ran the numbers from 2020-2021, it is still well over the time your average judge in the court of appeals is getting to step two. the speech hasn't been updated, but as far as i know he still hasn't gotten to step two one. that is an unsettling of the law, a disconnect that is very hard to get your fingers around. at least if one circuit says the statute means x and another

y everybody can see that this court can decide the case. if course are deciding that one step two in ways in a radically different i don't know how you unearth that. i think that is another huge problem. >> if chevron was overruled i think your brief says we should go ahead and decide the statutory issue. can you speak very briefly to why? and it would also be a lesson as to how far judges will get astray by applying chevron. another problem with chevron, i'll still try to be brief, it tends to focus on one or two terms. you lose the context of the statute. if you have the context of the statute and the fact the only other places thatut these kinds of fees on fisheries, they put a serious cap and they did it for the most well-healed fisheries or in certain circumstances, this is an easy case.

>> thank you. >> and justice barrett? >> can we have a host of cannons, clear statement rules, some are constitutional inspired. the last argument about whether chevron should be thought of as a part of the package. she said chevron could be distinct that chevron was unique. can you address that? >> i think she's right about that and it sits throughout in an island and that's a part of the reason to overrule it. i think all the other cannons that i could think of are fully consistent with the no vote statutory interpretation. i might be missing one. but the ones i think of when you're doing the construction, you take into account all of those cannons. chevron is the only one i know that says in a certain point, you just stop that stuff and you sort of surrender even under circumstances where they would keep going. only chevron does that. >> one last question. you said on our

docket, we've had multiple cases in which they have come up. do you think that chevron is going to solve that problem? in a lot of the cases, they have hung their hat on words like appropriate, you know, and the kind of language and you can tell me if you disagree, but when a statute uses a word that leaves room for discretion like appropriate and feasible and reasonable. so don't you think they will still continue to rely on words like that in ways that might not, you know, limit our emergency docket? >> i'm not so naive to say it is going to solve all the problems with the emergency docket, but it is going to make it a lot better. sure, they would try to use modify, which is bold in light of at&t, but whatever. they picked some of those words, but that broad band case is coming here and that is a case that shouldn't be. but some days, somebody is going

to litigate whether it is a crypto contract just as they are confident that a.i. is going to get here because of the statute and it is more likely they wl say there is some scientific thing. but my own view of thi is it's not a cure all, but it's going to move things very much in the right direction. >> thank you. >> thank you. >> general, welcome back. >> thank you, mr. justice. and may it please the court. throughout the litigation at times this morning, petitioners have characterized this case as presenting a fundamental question of the separation of powers and a test of article iii. will courts continue to say what the law is? but i want to make sure what doesn't get lost in the shuffle is that petitioners have made an important concession that i think illustrates that the issue here is actually far narrower and their attacks on chevron

lack merit and are unnecessary. the concession is this. petitioners acknowledge congress can expressly delegate to agencies the authority to define terms and fill gaps. and imagine if the statute said they were asked to define the administrator. i take both petitioners to give that up and recognize that is a delegation and courts should respect that. the role of the court in that circumstance is to make sure the agency has followed the procedures and stated within whatever outer bounds congress has set. and all of that complies with the constitution, of course, because congress has the authority to delegate the gap authority to agencies and the executive has core article ii authority to fill in those gaps. that's 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 has done and their choice to rely on the agency in that regards. but i think what all of this shows is the constitutional

attacks on chevron and the suggestion that it is egregiously wrong, lacks merit. because there's no constitutional distinction between that kind of expressed delegation and the delegations recognized in chevron. if congress can expressly invest in agency with the authority to interpret the law through an expressed delegation and then they could do the same thing. especially in a world where congress has to provide the agency with the expressed authority to carry the statute into operation with the effective law. now we can debate whether they drew the right line in identifying exactly when these delegations have occurred. i think they got that right for all the reasons that i tried to explain this morning. but i think it is important to recognize that that debate doesn't have a constitutional dimension to it that will fall out of the equation and that it is just a question of whether they drew that right line. if you recognize that and what is left over are the practical concerns that have been raised about chevron and i don't want to show you the force of the

concerns that some members have articulated. but those concerns are manageable. the court could do in this case what it did in kaiser and it could clarify and articulate the limits without taking the drastic step and that is the right thing to do there and that they will be calling a part of the rules here. in this case, they will decide to council in favorite of retaining chevron. i welcome the court's questions. >> and how do we see the silence? >> and so i think it would be wrong to suggest that you can neatly categorize cases as those involving silence and those involving ambiguity. i recognize that you spoke to those terms and they were trying

to be showing you where they directly resulted in the issue. 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 baseline of this context. and that would help with their authority and this is the perfect example as they said that the act here is silent on the issue of whether the industry could be required to pay for monitors. we will have four that we pointed to that will undermind the authority and that it says that they can require the vessels to carry the monitor. and it could include a private third party and the penalty provision that says in the circumstance where they have contracted with the private third party and not

paid. the agency can penalize. finally the authority to enact necessary and appropriate terms. so we don't think this is a case about that at all. >> yes, again, we are back to the same question that the chief had of mr. clement. that is exactly like the bread and butter of what we do every single day and we can resolve that. >> we think that the statute will be clear. >> the fact that you think it is clear and they thought it was ambiguous should tell us something, shouldn't it? >> no, i disagree with 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 couldn't conclude with confidence that the statute definitely authorized the agency explicitly. >> but you think it does?

>> and yes, under step one, yet here we are. >> i don't think it is unusual to think that they have the clear interpretation of the statute on its side and that the agency has acted reasonably. >> it's a trigger that nobody knows what it means. let me ask you about the delegation as your example in the opening, which is interesting. 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 that they delegated. that's one thing. what you're asking us to do is to infer from that 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 statute

itself to determine who has the better reading, but they should always win that case. >> no, not at all. that will be a different tool to finish up. i understand the delegation of one context, but i struggle to see if we should infer the friction of delegation. >> i disagree that there is a fiction of delegation in the circumstances that will trigger chevron. at the outset i want to make perfectly clear that of course the statutory context and structure is one of the important tools of interpretation that a court should use as step one. if we're in a world where the court can walk through those factors and ascertain that congress spoke to the issue, let me be very clear, we recognize that they should get us back to what congress was saying. if you're suggesting then in a world where congress hasn't actually spoken to the issue, the court should give no respect at all to the agency's interpretation. i disagree that that is

implementing congress' intent. what they recognize in a circumstance where they have not spoken to the issue, given the express grant of rule making authority to the agency. and necessarily recognize that the agency is going to have to fill the gap along the way. it's perfectly sensible to consume they want the agency to do it. >> let me ask you about michigan verses epa too. it is somewhere in between so forth and to come up with rules. about the meaning of the word and. and essentially appropriate is necessary. did the court find there were outer boundaries there that can be exceeded, right? >> yes, absolutely. we are not suggesting in that world. >> so you can do that, right? >> what i'm disputing is the idea there is also an answer either way, rather than the discretion. >> there is an agency? >> yes, under review. if i understood my friend correctly today, he seems to

suggest 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 i think is just absolutely true as a matter of the on the ground realities and how they legislate, that congress doesn't actually decide all of these issues. when congress hasn't decided it and some follow on, they will need to fill in the gap. it's a question of whether it should be the courts or the agency. there is a presumption here that they intended it to be the agency. but always subject 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 not address 706 is because 706

has never been understood at any time. at the time it was enacted or in any of the eight decades since to have dictated the review with no inherit attention. it's further information on what the epa's own history shows. what i was trying to explain, this is a situation where the court has recognized that the epa wasn't meant to create dramatic changes. it would have been a dramatic change going from all the principals deployed and the case law including immediately leading up to the epa to a standard on a prospect of basis going forward would have been a big change in the relationship of how judicial reviews. no one mentioned that. no one suggested it was the right way. it's never how this court interpreted it. and justice barrett in response to your questions about the epa, you know, it's not as though

this is a one off decision. the court has had any number of decisions over 70 applying chevron. i think in each and every one of those, it's important to recognize there hasn't been it this kind of attention between the epa and chevron itself, which further shows the court's own understanding of section 706 is entitled to a waive here. >> i have a question about the relationship between brand x and your suggestion that we kaiserrized chevron essentially. i understand brand x to say a court must let go of its best interpretation of the statute if they advance in a plausible one. one way to handle this is say what we said in the kaiser context that no, use all the tools and come up with your best interpretation. why should we take on brand x? >> if you understand brand x to hold that the court thinks it

has the best interpretation and figured out what congress was saying about this issue and congress spoke. nevertheless has to adopt an inferior interpretation, then that's inconsistent with our approach. we don't read brand x that way. i understand brand x to be distinguishing between step one and step two holdings. so if there is a step one holding where, in fact, the court has got it at the end of the day and recognizes that congress spoke to the issue, there's no room under brand x to let the agency come along under the fact and say they should be understood in some different way. it's only in the circumstance where there was chevron granted under step two. a part of that is recognizing that's because the statute was interpreted at the first time to not actually supply and answer dictation by congress. >> they have the best answer that it is a step to question and it will seem to me that having the best answer will suggest that you engage in statutory interpretation 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 of statutory interpretation then you might say look, i'm 90% confident or i'm 95% confident. but i mean i think your reading of brand x might depend on the trigger for ambiguity is, right? >> i do think that it will be clearly demarcating the line between step one and step two holdings, so at least the rules of the road are clear with respect to when the agency might have been granted to revisit their prior conclusion. if you're suggesting there's a way to rebrand brand x and factoring into the equation the possibility that they meant to delegate to the agency that there is a better interpretation, the best interpretation that congress resolved it. i just don't think that you would ever get into the brand x scenario. that sounds like a ruling. i take the point that there are some inherent lack of precision in a term like ambiguity. that's not something that's uniquely created by chevron, of course, there are triggers in the law and all kinds of

context. but it's also that kind of thing that might be wearing you. it's not anything that's cured. as i was saying to justice kagan in the first argument, i think it'll open up the world where there is a lot of inconsistency in how judges are applying the principles in the case of ambiguity. >> on that point, some of the briefs point out the experience of the states with chevron and some don't have chevron and other states haven't had something like chevron, but eliminated it in recent years and decades, and they are experienced, they say, has shown it's workable in such a regime. so i just want to make sure you can respond to that? >> yes, so my understanding is about half the states still have something, a kin to a principle of indifference or a variant that looks like chevron. but i acknowledge that some states have abolished any indifferences. i do think 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 would 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 unifor rules throughout the country. i don't think that same experience right now exis in the state level. and as well, a lot of the states and the political responsibility could differ as well because many state court judges are elected. >> did i understand you in response to the question for justice thomas to say chevron doesn't apply to constitutional questions? >> yes, it is only a doctrine that applies in statutory interpretation. >> it could have an effect on that. does it apply in that situation? the department of education will have some rule. this will apply to all schools, you know, and it could apply to religious schools because this is how we interpret, you know, whatever the impact of the rule is. when we interpret it that way, we don't think that there raise

any free exercise problems. so is there a chevron difference 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 don't think this causes a particular constitutional problem. that is our expertise about how we apply this provision. given that, we think there is no free exercise problem. >> no. a court would not defer to that. this is all happening in step one. i think this is a part of the process if the court determining whether congress spoke to the issue and the court has been very clear. the difference doesn't come in at all unless you get to step two. the agency views they deserve the chevron dference or you know, its take on one of those step one issues. it's getting any difference in that stage of the case.

i do want to take another shot at trying to explain why i believe petitioners are wrong to characterize chevron as resting on a fiction. what they have tried to say is this doesn't 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 is a lot of merit and wait that in a situation there are good reasons for congress to want to vest with this kind of authority. and it is the recognition that agencies of necessity are going to have to fill in those gaps and they are complex and technical and they are going to require the agency to draw on their long standing experience with the program and the expertise that's accumulated in working with that industry that will also encompass i think inheritly some policy. the agency could run a decision

making process in doing this. chevron only applies in circumstances where there is a sufficient level of formality and that it is usually the rule making. that's 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 seems to be your argument. because that rationality that they would want to favor the government rather than an opposition equally rational that it would want to favor the individuals. and if you assume that the government has provided everybody a notice and an opportunity to be heard. but often the government will seek the difference for adjudications between individual parties and then apply that to everybody without notice to them. or difference for interpretive rules for which no notice and comment and let alone

formal rule making for the proceedings is required. and so there are many circumstances in which they will see the difference for a view of the law that affected parties would have no chance to be heard about. when do we do that? >> and with respect to the category, it is true that they have not ruled out that they could receive the appropriate circumstances. >> and so you 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 don't know with that and is that another factor? >> it is another important check of ensuring there is a delegation here 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? >> they have not ruled them out and if you thought -- >> what would you have us do? >> and their interpretive rules is my question. >> i don't think that you could treat them as a class. and the interpretive rule. >> sometimes they are required and sometimes they aren't. and you keep those in, i'm sure. >> yes, we certainly think that they will have that core application. it is not the same ability to take these input from them, but the court has emphasized where it has been applying chevron that there is a possibility of the centralized decision making process in order to ensure the agency is gathering the facts and they will have the tools in their disposal, and that it is to have them do it through the litigation. the very least, it is easy to see why they might think that is not as good of an alternative.

and that they could come out of nowhere with respect to that party. we will have a brief from that small business. everybody. >> and until it is recognized. >> they could have impacts on the parties that are outside and even that person who is bound by the president could appeal it. and that will be under your view and that many people without notice, any notice or any chance to be heard are bound. >> and so my concern what i was focusing on, with respect to litigation is that it is not as though every party will stand to get back by those cases to know about it. and look at the brief that was filed. >> and of course they won't have that notice and when that

government comes for them, they get to take their case to court. >> and congress has often expressed a preference for not having these issues resolved piece by piece in different courts around the country. >> and that is provided for formal and informal rule making and adjudications. it is most rules that will be resolved that way. for a long time those processes have not been used, 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 don't have to provide notice. >> and i think that it circles us back to the fact they do not suest that 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 an important process. >> and on the front, they would talk specifically about that in particular and how that agency will move from that post fairly often. there's a concern raised there and that is a situation that you cannot suggest your behavior ahead of time necessarily based on the new rule and the new changes and what this has done in that case that will affect the people that didn't have a notice or any response to that brief or scenario or you want to tell me why that's wrong? >> and that is the set of concerns and that they will have to justify it and whatever tools they are cruising. and that they are going to have

to justify what they are doing. and in particular, they have focused a lot on the idea and that they are changing their minds and the burden that they will need to take aount for the interest and they will get put into state farm, i think, but with respect to that, they could take those kinds of consideration into account. >> thank you. >> did you want to finish your answer on what you would say to your friend's view of intent? >> so i was trying to defend as a matter and that it is the first order answer on this and that there are often really good reasons why they would want an expert agency to take that first crack in filling the law and there is it no way around it and that they have got to do it and this court has said that they are interpreting them underway and what that law means. and that in this situation where there is more doubt and that is

what congress would have expected that it is a precedent from the court. it's not like they have flown under the radar and they are unaware of it and they don't realize it's out there. and what they are doing. this is one of the most biggest decisions 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 will trigger that strong form of story that they applied in kaiser when they recognize in that situation where congress is actually the best constitutional actor to do something about it. and that it doesn't matter that they thought tohange them in any kind of way. >> thank you, council.

>> i do have one more. this is not in that intellectual e request, but how do you respond to their point about the interpretation that this particular statute and his reliance on the theory that congress definitely, when it capped the big industry paying 2%, 3%, whatever the number is, they would not have wanted small fishermen to pay 20%? >> and so we will have a range of reaction to that and i was suggesting that we think there is a lot 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 situation where they have not

paid and that there can be circumstances in that footnote and the way that the other two monitors, they were government monitors, correct? >> and so this is our program that my friends have relied on to see the negative statute and two of those will apply and so it is very different and they pay fees to the government including entering into that relationship and those contractors that will pay for administrative expenses and that program operations in this way.

it might be possible that they will move in and be required to contract with those monitors, and that is the whole thing and it doesn't work because they will put that penalty in that section of the act that will apply to those vessels. it is meant to tack on to that program. that will be inexplicable. they say to wrap this up, it's unheard of and i want to be clear that they are latching on to a part of the rule that acknowledged that the costs could go up and they acted in response to that and created to respect some of the issues in these cases in that range. so this is something that they could look at and review that

they were arbitrary for that cost and rightfully so. >> and i 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? would they want to go further in any respect? and what does it mean to chevron? >> and so i think that the courts in this case that they will have some concerns about the issues, they could do four critical things, which will draw heavily and look different in particular. they will need to reemphasize that analysis. this is drawn from kaiser as i mentioned before as we have seen the lower courts. and in respect to this. and that they don't want to weigh that flag and don't give

up just because of the statute that is hard to parse and instead there are a lot of hard questions that will be solved to reveal their intent if they apply all the tools and they really exhaust them. so that will take care of the whole category of cases. at step two, the court could again do what they did in kaiser, which is to reinforce that reasonableness is not anything that will go and you can see them saying at times that the government will win and that is not the standard. even at that stage, it is differential, but the court should be enforcing any bounds in that statute and making sure they have not transgressed those. that's the third thing they could do and that they will get off that ground where you have that agency being directly empowered by congress to speak with the force of law and then exercising appropriately the level of authority in implementing the statute. so i think that is an important thing as well that there are certain context in which 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, to emphasize that it is always important to look at any indication that chevron does not mean to apply. what i'm thinking here of our things like situations where the nature of the statutory question as the court has said in other cases, it is not one that you would expect them to give to the agency and through the major questions and i don't want to rule out other scenarios. and congress can adjust and react and take statute specific steps and support should pay attention to that and they should not dictate to this and 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 explain why those shouldn't alter what they are doing in that kind of revised approach. and they also frequently if it has come from a rule making will have to run that process all over again and that it will take a substantial investment of the agency resources. in that context too, they could make sure the agency is following the procedural requirements to ensure that it has informed decision making. in the end of the day, if they could run that gauntlet, then the fact they have some discretion to change their approach is not something to say it is kind of a bug in that statute and it is a feature where congress would want to give them the ability to adapt

and to new information or the experience that is accumulated under the prior program. >> justice gorsuch? justice barrett? >> tank, council. rebuttal? >> just a few points. first my friend started with express delegation and it will show all the problems with this implied delegation. what they will do is delegate implementing or exercising the authority and it does not do what they will report to do, which is that authority, but you can put limits on the tax and again, it is a perfect example of that and they do raise that concerns. you can check for that as well. and to that principle than that silence, and in terms of, you know, this premise that it is

entirely fictional and that in most cases it is something that they did not have enough votes to make it clear. and every statute has a binary answer. there are statutes like that and there are things that the salesperson who is involved in the servicing of cars, i say yes, but you can say no and it is binary. but you can't tell the two apart. at a certain point, they look ambiguous. but you know what can tell the two apart? that the construction will find out what 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 courts sort of stumbled into these announcements that you should go about that and it was a mistake. that is a special justification to revisit the decision and to get the decision right. let me say one word about expertise. they do not have to go hand in hand in a way that will preclude that review. we have the court of international trade. they all deal with technical specialized issues. every one of them, the legal questions are reviewed. and that is the basic understanding with the statute like section 706. lastly let me say this. you cannot kaiserrize the chevron doctrine without overruling brand x. the fact you can take into account the agency had flip-flopped and it was a part of the rational with kaiser before you applied it and that is a feature, my friend and that

is a feature and you can't kaiserrize it without overruling brand x and that it just went out the window and we might as we announcer: this week we are showing recent supreme court cases that the high court is expected to rule on by the end of this term and we talk to reporters about the legal issues involved. it begins each night at 9:30 eastern unseen and. unto the movie or argument in the case challenging the constitution of the of a trump-era corporate tax law that taxes earnings from certain foreign corporations. watch super court or arguments all this week at 9:30 eastern on c-span. you can also find our supreme court coverage on our website, is beto o'rourke/supremefor -- c-span.org/history braincourt.

>> this comes after an appeals court ruled last week that he could pay a smaller sum of the original $454 million judgment while the case is on appeal. usa today reports that bond was provided by an insurance company which has its principal place of business in los angeles. according to them under court filing. as a result, new york attorney general letitia james is now blocked from seizing the former president's assets as long as the appeals process is laying out in court. tuesday on c-span, join us live at 10:00 a.m. eastern as we look at u.s.-lebanon relations with former u.s. ambassador david hale at the u.s. institute of peace. he will also discuss past u.s. engagement and american diplomacy in the middle east and beyond.

than in the afternoon, a conversation with the managing director of the imf, kristalina georgieva, about climate change and how to support the bill for -- the global economy with the help of artificial intelligence. that is at 3:30 p.m. eastern. later, at 6:00 p.m. eastern, live coverage of donald trump speaking to voters in green bay, wisconsin. again, that is live on c-span, c-span now, our free mobile video at, an online at c-span.org. c-span is your unfiltered view of government. we are funded by these television companies and more, including the. -- including midco. ♪ >> a♪ no one can do it like we do. announcer: midco supports c-span as a public service, along w