Amicus Curiae Brief — California Sea Urchin Commission, et al., Petitioners v. Susan Combs, Acting Assistant Secretary for Fish, Wildlife, and Parks, et al.

No. 17-1636

In the Supreme Court of the United States

CALIFORNIA SEA URCHIN COMMISSION, ET AL.,

PETITIONERS

v.

SUSAN COMBS, ACTING ASSISTANT SECRETARY FOR FISH,

WILDLIFE, AND PARKS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE STATES OF TEXAS, ALABAMA,

ARIZONA, ARKANSAS, KANSAS, LOUISIANA,

MICHIGAN, MISSOURI, MONTANA, NEBRASKA,

OKLAHOMA, SOUTH CAROLINA, UTAH, WEST

VIRGINIA, WISCONSIN, AND WYOMING, AND PAUL

R. LEPAGE, GOVERNOR OF MAINE, AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

SCOTT A. KELLER

Solicitor General

Counsel of Record

JOSEPH D. HUGHES

Assistant Solicitor General

TABLE OF CONTENTS

Page

Table of Contents .................................................................. I

Table of Authorities ............................................................. II

Interest of Amici Curiae ....................................................... 1

Summary of Argument ......................................................... 2

Argument ................................................................................ 3

I. The Court Should Overrule Chevron

Deference. ................................................................. 3

Interpreting statutory text is primarily

the role of courts, not administrative

agencies. ......................................................... 4

Chevron deference invites instability

and unpredictability in the law.................... 7

1.

A broad range of agency

interpretations makes it hard to

know what the law is. ............................ 7

2.

Chevron’s applicability remains

unclear. .................................................... 8

Chevron deference poses a significant

threat to federalism. ................................... 13

Chevron increasingly appears

unnecessary. ................................................ 16

II. At a Minimum, the Court Should Hold That

the Court of Appeals Manifestly Misapplied

Chevron. .................................................................. 19

Conclusion ............................................................................ 21

(I)

II

TABLE OF AUTHORITIES

Cases:

Babbitt v. Sweet Home Chapter of Cmtys.

for a Great Or.,

515 U.S. 687 (1995) ........................................................ 11

Barber v. Thomas,

560 U.S. 474 (2010) .................................................. 10, 11

Barnhart v. Walton,

535 U.S. 212 (2002) .......................................................... 3

Bayou Lawn & Landscape Servs. v. Sec’y

of Labor, 713 F.3d 1080 (11th Cir. 2013) .................... 19

Cal. Sea Urchin Comm’n v. Bean,

883 F.3d 1173 (9th Cir. 2018) ....................................... 19

Chamber of Commerce of U.S. v. NLRB,

721 F.3d 152 (4th Cir. 2013) ......................................... 19

Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc.,

467 U.S. 837 (1984) ................................................ 2, 3, 10

City of Arlington, Tex. v. FCC,

569 U.S. 290 (2013) .................................................... 5, 14

City of Brighton v. Rodriguez,

318 P.3d 496 (Colo. 2014) .............................................. 17

Coffelt v. Fawkes,

765 F.3d 197 (3d Cir. 2014) ........................................... 19

In re Complaint of Rovas Against SBC

Mich., 754 N.W.2d 259 (Mich. 2008) ........................... 18

Egan v. Del. River Port Auth.,

851 F.3d 263 (3d Cir. 2017) ............................................. 6

III

Cases—Continued:

Egelhoff v. Egelhoff ex rel. Breiner,

532 U.S. 141 (2001) ...................................................14-15

Esquivel-Quintana v. Lynch,

810 F.3d 1019 (6th Cir. 2016), rev’d, 137

S. Ct. 1562 (2017 ............................................................ 12

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ........................................................ 16

FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120 (2000) ...................................... 11, 12

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) .............................. 14

Friends of the Columbia Gorge, Inc. v.

Columbia River Gorge Comm’n,

213 P.3d 1164 (Or. 2009) (en banc) .............................. 17

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000) ........................................................ 15

Gold Creek Cellular of Mont. Ltd. P’ship v.

State Dep’t of Revenue, 310 P.3d 533

(Mont. 2013).................................................................... 17

Gonzales v. Oregon,

546 U.S. 243 (2006) ...................................... 10, 11, 13, 15

Gregory v. Ashcroft,

501 U.S. 452 (1991) ........................................................ 13

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ................................... 5, 8

INS v. Chadha,

462 U.S. 919 (1983) ........................................................ 14

Judulang v. Holder,

565 U.S. 42 (2011) .......................................................... 12

IV

Cases—Continued:

Kan. Dep’t of Revenue v. Powell,

232 P.3d 856 (Kan. 2010)............................................... 17

King v. Burwell,

135 S. Ct. 2480 (2015) .............................................. 11, 12

Lawson v. FMR LLC,

571 U.S. 429 (2014) .......................................................... 8

Marbury v. Madison,

1 Cranch 137, 2 L. Ed. 60 (1803).................................... 5

Marlow v. New Food Guy, Inc.,

861 F.3d 1157 (10th Cir. 2017) ..................................... 19

Massachusetts v. EPA,

549 U.S. 497 (2007) .......................................................... 9

MCI Telecomms. Corp. v. AT&T,

512 U.S. 218 (1994) ........................................................ 11

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ........................................................ 15

Michigan v. EPA,

135 S. Ct. 2699 (2015 ....................................................... 5

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ...................................................... 16

Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs.,

545 U.S. 967 (2005) .................................................. 10, 11

Nat’l Rest. Ass’n v. U.S. Dep’t of Labor,

No. 16-920 (filed Jan. 19, 2017) .................................... 20

V

Cases—Continued:

Or. Rest. & Lodging Ass’n v. Perez,

816 F.3d 1080 (9th Cir. 2016), reh’g en

banc denied, 843 F.3d 355 (9th Cir.

2016), cert. denied sub nom. Wynn Las

Vegas, LLC v. Cesarz, No. 16-163, 2018

WL 3096373 (U.S. June 25, 2018), and

cert. denied sub nom. Nat’l Rest. Ass’n

v. Dep’t of Labor, No. 16-920, 2018 WL

3096374 (U.S. June 25, 2018)...................................19-20

Pearson v. Callahan,

555 U.S. 223 (2009) .......................................................... 4

Pereira v. Sessions,

No. 17-459, 2018 WL 3058276 (U.S.

June 21, 2018 ...................................................... 3, 4, 5, 16

R.R. Comm’n of Tex. v. Tex. Citizens for a

Safe Future & Clean Water, 336

S.W.3d 619 (Tex. 2011).................................................. 18

Rosenberg v. DVI Receivables XVII, LLC,

835 F.3d 414 (3d Cir. 2016) ........................................... 16

Ry. Labor Execs.’ Ass’n v. Nat’l Mediation

Bd., 29 F.3d 655 (D.C. Cir. 1994) (en

banc), as amended, 38 F.3d 1224 (D.C.

Cir. 1994)......................................................................... 19

SEC v. Sloan,

436 U.S. 103 (1978) .......................................................... 4

Sierra Club v. EPA,

311 F.3d 853 (7th Cir. 2002) ......................................... 19

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ........................................................ 10

VI

Cases—Continued:

Smith v. City of Jackson, Miss.,

544 U.S. 228 (2005) ........................................................ 16

Stambaugh v. Killian,

398 P.3d 574 (Ariz. 2017) .............................................. 17

Tetra Tech EC, Inc., v. Wisc. Dep’t of

Revenue, No. 2015AP2019, 2018 WL

3122322 (Wis. June 26, 2018) ....................................... 17

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) ......................................... 19

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) ....................................... 12

United States v. Mead Corp.,

533 U.S. 218 (2001) .................................................... 9, 10

Verizon Comms., Inc. v. FCC,

535 U.S. 467 (2002) ........................................................ 12

Watters v. Wachovia Bank, N.A.,

550 U.S. 1 (2007) ...................................................... 14, 15

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ........................................................ 11

Wisc. Cent. Ltd. v. United States,

No. 17-530, 2018 WL 3058014 (U.S.

June 21, 2018) ................................................................... 8

Wyeth v. Levine,

555 U.S. 555 (2009) ........................................................ 16

Wynn Las Vegas, LLC v. Cesarz,

No. 16-163 (filed Aug. 1, 2016) ..................................... 20

Zuni Pub. Sch. Dist. No. 89 v. Dep’t of

Educ., 550 U.S. 81 (2007) ............................................ 8, 9

VII

Statute

5 U.S.C. § 706(2)(A) ............................................................. 12

Other Authorities

William R. Andersen, Against Chevron–A

Modest Proposal, 56 Admin. L. Rev.

957 (2004) .......................................................................... 7

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation,

126 Yale L.J. 908 (2016) .................................................. 6

Jack M. Beerman, Chevron at the Roberts

Court: Still Failing After All These

Years, 83 Fordham L. Rev. 731 (2014) ......................... 6

Jack M. Beerman, End the Failed Chevron

Experiment Now: How Chevron Has

Failed and Why It Can and Should Be

Overruled, 42 Conn. L. Rev. 779 (2010)........................ 6

Stephen Breyer, Judicial Review of

Questions of Law and Policy, 38 Admin.

L. Rev. 363 (1986) ............................................................ 4

John Hart Ely, Democracy and Distrust: A

Theory of Judicial Review 131-32 (1980).................... 15

Philip Hamburger, Chevron Bias, 84 Geo.

Wash. L. Rev. 1187 (2016) ........................................ 6, 16

David M. Hasen, The Ambiguous Basis of

Judicial Deference to Administrative

Rules, 17 Yale J. on Reg. 327 (2000) ............................. 7

Linda Jellum, Chevron’s Demise: A Survey

of Chevron from Infancy to Senescence,

59 Admin. L. Rev. 725 (2007) ......................................... 6

Robert A. Katzmann, Judging Statutes

(2014)) ................................................................................ 6

VIII

Other Authorities—Continued:

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118

(2016) (reviewing Robert A. Katzmann,

Judging Statutes (2014)) ................................................ 6

Michael W. McConnell, Federalism:

Evaluating the Founders’ Design, 54 U.

Chi. L. Rev. 1484 (1987) ................................................ 13

Jeffrey A. Pojanowski, Without Deference,

81 Mo. L. Rev. 1075 (2016) ....................................... 6, 19

Antonin Scalia, Judicial Deference to

Administrative Interpretations of Law,

1989 Duke L.J. 511, 513 (1989) ................................ 6, 18

Cass R. Sunstein, Chevron Step Zero, 92

Va. L. Rev. 187 (2006) ........................................... 7, 9, 12

Tex. Att’y Gen. Op. No. KP-115, 2016 WL

5873029 (2016) ................................................................ 18

The Federalist No. 47 (James Madison)

(Clinton Rossiter ed., 1961) ............................................ 6

Christopher J. Walker, Attacking Auer

and Chevron Deference: A Literature

Review, 16 Geo. J.L. & Pub. Pol’y 103

(2018) ........................................................................... 6, 14

INTEREST OF AMICI CURIAE

Amici curiae are the States of Texas, Alabama,

Arizona, Arkansas, Kansas, Louisiana, Michigan,

Missouri, Montana, Nebraska, Oklahoma, South

Carolina, Utah, West Virginia, Wisconsin, and Wyoming,

and Paul R. LePage, Governor of Maine.1 The Amici

States have an interest in ensuring that the manner in

which federal administrative agencies interpret federal

statutes does not subvert the interests of States and

their citizens or dispossess courts of their constitutional

duty to decide what the law is.

Pursuant to Supreme Court Rule 37.2, Amici state that no counsel for any party authored this brief in whole or in part, and no

person or entity other than Amici contributed monetarily to the

preparation or submission of this brief. All parties have given their

consent to the filing of this brief.

1

(I)

2

SUMMARY OF ARGUMENT

In recent years, several members of this Court and

numerous commentators have raised constitutional and

practical concerns regarding the deference to agency interpretations of federal statutes required under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). As Justice Kennedy recently

acknowledged in Pereira v. Sessions, the time has come

for the Court to reconsider Chevron deference. Amici

States urge that Chevron deference should be overruled

for several reasons. First, statutory construction is primarily the role of courts, not administrative agencies.

Second, the Chevron framework foments uncertainty

and instability in the law. Third, Chevron deference undermines principles of federalism. Finally, Chevron deference increasingly appears to be unnecessary. At a minimum, the Court should resolve a circuit split and clarify

that the Ninth Circuit’s isolated view of Chevron—which

invites federal agencies to infer regulatory authority

from congressional silence—is fundamentally wrong.

3

ARGUMENT

I. The Court Should Overrule Chevron Deference.

Chevron set out a now-familiar two-step process for

judicial review of a federal agency’s construction of a

statute that it administers. At Step One, the reviewing

court asks “whether Congress has directly spoken to the

precise question at issue”; if it has, “that is the end of the

matter.” 467 U.S. at 842. If not, however, “the court does

not simply impose its own construction on the statute.”

Id. at 843. Instead, “if the statute is silent or ambiguous

with respect to the specific issue,” at Step Two “the question for the court is whether the agency’s answer is based

on a permissible construction of the statute.” Id. If so,

the court must defer to the agency’s interpretation, even

if the court on its own would have interpreted the statute

differently. Id. Thus, in the very common situation where

“the precise question” is not answered by the text of a

federal statute, an agency’s interpretation has the force

and effect of law unless it “exceeds the bounds of the permissible.” Barnhart v. Walton, 535 U.S. 212, 218 (2002).

In the Court’s recent Pereira v. Sessions decision,

Justice Kennedy wrote separately to “note [his] concern

with the way in which the Court’s opinion in [Chevron]

has come to be understood and applied.” No. 17-459, 2018

WL 3058276, at *14 (Kennedy, J., concurring) (U.S. June

21, 2018) (citations omitted). Justice Kennedy described

as “troubling” the “reflexive deference” that some courts

of appeals have exhibited in applying Chevron, and observed that “it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that

decision.” Id. In the same case, Justice Alito described

Chevron as an “increasingly maligned precedent,” id. at

4

*15 (Alito, J., dissenting), and wondered whether “the

Court has overruled Chevron in a secret decision that has

somehow escaped my attention,” id. at *23.

Amici States agree that the time has come to reconsider Chevron deference, and this case provides an appropriate vehicle. Although the Court does not lightly reconsider its precedents, it has not hesitated to do so when

“experience has pointed up the precedent’s shortcomings.” Pearson v. Callahan, 555 U.S. 223, 233 (2009). This

brief, while not attempting to categorically address all of

Chevron’s shortcomings, will summarize some of Chevron’s more problematic aspects as grounds to reconsider

and overrule Chevron deference in this or another suitable case.

Interpreting statutory text is primarily the role

of courts, not administrative agencies.

Interpreting statutes is a core judicial function. See,

e.g., SEC v. Sloan, 436 U.S. 103, 118 (1978) (noting that

“courts are the final authorities on issues of statutory

construction”). By contrast, setting public policy is a legislative or executive function. Yet the Chevron doctrine

effectively reverses these roles by requiring courts to defer to reasonable agency interpretations of statutes.

Two years after Chevron was decided, then-Judge

Breyer explained that Chevron deference, in tandem

with the “hard look” doctrine formerly adopted by the

D.C. Circuit, yielded the “anomalous” result of “urg[ing]

courts to defer to administrative interpretations of regulatory statutes, while also urging them to review agency

decisions of regulatory policy strictly.” Stephen Breyer,

Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 364-65 (1986). As Justice Breyer ob-

5

served, Chevron gets it exactly backwards. The constitutionally proper approach is for courts to independently

engage in statutory interpretation while deferring to administrative agencies’ policy determinations.

As Members of this Court and others have observed,

Chevron deference implicates several constitutional issues, most notably separation-of-powers and non-delegation concerns. Requiring courts to defer to agency interpretations “precludes judges from exercising [independent] judgment” and “wrests from Courts the ultimate interpretative authority to ‘say what the law is.’” Michigan

v. EPA, 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring) (quoting Marbury v. Madison, 1 Cranch 137, 177,

2 L. Ed. 60 (1803)); see Pereira, 2018 WL 3058276, at *14

(Kennedy, J., concurring) (noting that Chevron deference can lead to “abdication of the Judiciary’s proper role

in interpreting federal statutes,” and that “[t]he proper

rules for interpreting statutes and determining agency

jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles

and the function and province of the Judiciary”); City of

Arlington, Tex. v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting) (“[T]he citizen confronting thousands of pages of regulations—promulgated by an

agency directed by Congress to regulate, say, ‘in the

public interest’—can perhaps be excused for thinking

that it is the agency really doing the legislating.”);

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th

Cir. 2016) (Gorsuch, J., concurring) (“Chevron . . . permit[s] executive bureaucracies to swallow huge amounts

of core judicial and legislative power and concentrate

federal power in a way that seems more than a little dif-

6

ficult to square with the Constitution of the framers’ design.”); Egan v. Del. River Port Auth., 851 F.3d 263, 279

(3d Cir. 2017) (Jordan, J., concurring in the judgment)

(“The deference required by Chevron not only erodes the

role of the judiciary, it also diminishes the role of Congress.”); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 513

(1989) (“Surely the law, that immutable product of Congress, is what it is, and its content—ultimately to be decided by the courts—cannot be altered or affected by

what the Executive thinks about it.”); The Federalist No.

47, at 301 (James Madison) (Clinton Rossiter ed., 1961)

(“The accumulation of all powers, legislative, executive,

and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”).

Chevron also has long been criticized by numerous

commentators, on these and other grounds. See, e.g.,

Christopher J. Walker, Attacking Auer and Chevron

Deference: A Literature Review, 16 Geo. J.L. & Pub.

Pol’y 103 (2018); Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation, 126 Yale L.J. 908

(2016); Jeffrey A. Pojanowski, Without Deference, 81

Mo. L. Rev. 1075 (2016); Brett M. Kavanaugh, Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016)

(reviewing Robert A. Katzmann, Judging Statutes

(2014)); Philip Hamburger, Chevron Bias, 84 Geo. Wash.

L. Rev. 1187 (2016); Jack M. Beerman, Chevron at the

Roberts Court: Still Failing After All These Years, 83

Fordham L. Rev. 731 (2014); Jack M. Beerman, End the

Failed Chevron Experiment Now: How Chevron Has

Failed and Why It Can and Should Be Overruled, 42

Conn. L. Rev. 779 (2010); Linda Jellum, Chevron’s Demise: A Survey of Chevron from Infancy to Senescence,

7

59 Admin. L. Rev. 725 (2007); Cass R. Sunstein, Chevron

Step Zero, 92 Va. L. Rev. 187 (2006); William R. Andersen, Against Chevron–A Modest Proposal, 56 Admin. L.

Rev. 957 (2004); David M. Hasen, The Ambiguous Basis

of Judicial Deference to Administrative Rules, 17 Yale J.

on Reg. 327 (2000). These widespread, well-articulated,

and longstanding concerns about Chevron’s foundations

and constitutional viability further support reconsideration of the doctrine.

Chevron deference invites instability and unpredictability in the law.

1.

A broad range of agency interpretations

makes it hard to know what the law is.

It is doubtless convenient for federal agencies to have

little restraint on their interpretation of federal law; to

be able to change their minds at any time, for any reason;

and to receive deference even for interpretations expressed retroactively. But there is a price to be paid for

these conveniences, and it is paid by those who are subject to the agency’s regulatory authority. As then-Judge

Gorsuch has explained:

Transferring the job of saying what the law is

from the judiciary to the executive unsurprisingly

invites the very sort of due process (fair notice)

and equal protection concerns the framers knew

would arise if the political branches intruded on

judicial functions. Under Chevron the people

aren’t just charged with awareness of and the

duty to conform their conduct to the fairest reading of the law that a detached magistrate can muster. Instead, they are charged with an awareness

of Chevron; required to guess whether the statute

8

will be declared “ambiguous” (courts often disagree on what qualifies); and required to guess

(again) whether an agency’s interpretation will be

deemed “reasonable.” Who can even attempt all

that, at least without an army of perfumed lawyers and lobbyists? And, of course, that’s not the

end of it. Even if the people somehow manage to

make it through this far unscathed, they must always remain alert to the possibility that the

agency will reverse its current view 180 degrees

anytime based merely on the shift of political

winds and still prevail. Neither, too, will agencies

always deign to announce their views in advance;

often enough they seek to impose their “reasonable” new interpretations only retroactively in administrative adjudications.

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th

Cir. 2016) (Gorsuch, J., concurring). In this way, Chevron

adds to uncertainty and instability in the law while marginalizing ordinary citizens from the political process.

2.

Chevron’s applicability remains unclear.

Another major problem with Chevron deference is

that it does not produce consistent, predictable results.

For example, courts often disagree at Step One about

whether a statutory term is ambiguous. See, e.g., Wisc.

Cent. Ltd. v. United States, No. 17-530, 2018 WL

3058014, at *6 (U.S. June 21, 2018) (rejecting Chevron

deference); id. at *10 (Breyer, J., dissenting) (urging

Chevron deference); Lawson v. FMR LLC, 571 U.S. 429,

462 (2014) (Sotomayor, J., dissenting) (“[T]he majority . . . fails to recognize that § 1514A is deeply ambiguous.”); Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550

9

U.S. 81, 100 (2007) (“[T]he language of the statute is

broad enough to permit the Secretary’s reading.”); id. at

107 (Kennedy, J., concurring) (“[T]he Court is correct to

find that the plain language of the statute is ambiguous.”); id. at 108 (Scalia, J., dissenting) (opining that statute’s plain text “clearly and unambiguously forecloses”

the agency’s interpretation); Massachusetts v. EPA, 549

U.S. 497, 529 & n.26 (2007) (finding statutory definition

of “air pollutant” unambiguous); id. at 556-57 (Scalia, J.,

dissenting) (finding ambiguity in statutory definition).

Over the past decade, however, much of the controversy over Chevron has arisen at the so-called “Step

Zero”—“the initial inquiry into whether the Chevron

framework applies at all.” Sunstein, supra, 92 Va. L.

Rev. at 191. In other words, the Court has created multiple exceptions where it can avoid Chevron deference by

engaging in a threshold question about whether Chevron

even applies in the first place. This additional doctrinal

layer presents even more unresolved questions about

several precedents that function as exceptions to Chevron deference, which in turn has created “a significant

increase in uncertainty about the appropriate approach”

to reviewing agency decision-making. Id.

a. The principal Chevron Step Zero doctrine is reflected in a series of decisions concluding that Chevron

deference is appropriate only “when agency decisions

have followed procedures that guarantee deliberation

and reflectiveness.” Id. at 193 & n.29 (citing, inter alia,

United States v. Mead Corp., 533 U.S. 218, 221, 226-34

(2001)). In Mead, the Court stated that “administrative

implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to

10

make rules carrying the force of law, and that the agency

interpretation claiming deference was promulgated in

the exercise of that authority.” 533 U.S. at 226-227. In so

holding, the Court recognized that Chevron deference

rests on a recognition that Congress has delegated to an

agency the interpretive authority to implement “a particular provision” or answer “‘a particular question.’” Id.

at 229 (quoting Chevron, 467 U.S. at 844). After concluding that the agency interpretation at issue did not qualify

for Chevron deference under that standard, the Court

suggested that Skidmore deference, under which an

agency ruling may “seek a respect proportional to its

‘power to persuade,’” might be appropriate. Id. at 234-35

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)).

Justice Scalia’s dissent noted that, by declining to

draw a bright-line rule reserving Chevron deference for

cases involving rulemaking or formal adjudication, the

Mead majority had created additional uncertainty regarding Chevron’s applicability. See id. at 241 (Scalia, J.,

dissenting) (“The Court has largely replaced Chevron . .

. with that test most beloved by a court unwilling to be

held to rules (and most feared by litigants who want to

know what to expect): th’ol’ ‘totality of the circumstances’ test.”). That uncertainty has long persisted in

the wake of Mead. Compare Barber v. Thomas, 560 U.S.

474, 487 (2010) (invoking Chevron deference in reviewing

agency’s calculation of federal inmates’ statutory goodtime credit), Gonzales v. Oregon, 546 U.S. 243, 258-68

(2006) (applying Mead in rejecting Chevron deference to

Attorney General’s interpretations of Controlled Substances Act), and Nat’l Cable & Telecomms. Ass’n v.

Brand X Internet Servs., 545 U.S. 967, 1003 (2005)

11

(Breyer, J., concurring) (“I write separately . . . to point

out that Justice Scalia, in my view, has wrongly characterized the Court’s opinion in [Mead as holding] that

‘some unspecified degree of formal process’ before the

agency ‘was required’ for courts to accord the agency’s

decision deference under [Chevron].”) (quoting id. at

1015) (Scalia, J., dissenting), with Barber, 560 U.S. at

502-03 (Kennedy, J., dissenting) (arguing that, following

Mead, the agency’s credit calculation was not entitled to

Chevron deference), Gonzales, 546 U.S. at 292-98 (Scalia,

J., dissenting) (urging Chevron deference to Attorney

General’s statutory interpretations), and Brand X, 545

U.S. at 1014-15 (Scalia, J., dissenting) (“To the extent it

set forth a comprehensible rule, Mead drastically limited

the categories of agency action that would qualify for

deference under [Chevron].”).

b. Another doctrine that can displace the Chevron

framework altogether is the “major question” canon,

which posits that policy questions of deep “economic and

political significance” are too important to be decided on

the basis of deference to agency interpretation. FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 160

(2000); see King v. Burwell, 135 S. Ct. 2480, 2488-89

(2015); Gonzales, 546 U.S. at 275; Babbitt v. Sweet Home

Chapter of Cmtys. for a Great Or., 515 U.S. 687, 703-08

(1995); MCI Telecomms. Corp. v. AT&T, 512 U.S. 218,

226, 229-31 (1994). The major-question canon is conceptually related to the statutory-interpretation tenet that

Congress “does not . . . hide elephants in mouseholes” by

“alter[ing] the fundamental details of a regulatory

scheme in vague terms or ancillary provisions.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

12

Unsurprisingly, the courts of appeals have struggled

to consistently apply the major-question canon’s standard of “deep ‘economic and political significance,’” King,

135 S. Ct. at 2488-89 (quoting Brown & Williamson, 529

U.S. at 160). Compare, e.g., U.S. Telecom Ass’n v. FCC,

855 F.3d 381, 383 (D.C. Cir. 2017) (Srinivasan, J., concurring in denial of rehearing en banc), and Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1024 (6th Cir. 2016) (“This

is not an ‘extraordinary’ case. Chevron applies.”) (quoting King, 135 S. Ct. at 2488), rev’d, 137 S. Ct. 1562 (2017),

with U.S. Telecom Ass’n, 855 F.3d at 402-03 (Brown, J.,

dissenting from denial of rehearing en banc), and Esquivel-Quintana, 810 F.3d at 1031-32 (Sutton, J., concurring in part and dissenting in part).

c. Yet another source of ongoing uncertainty involves

the boundary between Chevron deference for statutory

interpretations and review under the “arbitrary or capricious” standard of the Administrative Procedure Act, 5

U.S.C. § 706(2)(A). The Court has indicated that the reasonableness inquiry under Chevron’s Step Two analysis

is functionally equivalent to the APA’s “arbitrary or capricious” standard. See Judulang v. Holder, 565 U.S. 42,

52 n.7 (2011); Verizon Comms., Inc. v. FCC, 535 U.S. 467,

527 n.38 (2002).

“Since the scope of review is a threshold issue in

nearly every administrative law case, the rise of sustained controversy over the meaning of Step Zero introduces needless uncertainty.” Sunstein, supra, 92 Va. L.

Rev. at 248. In sum, persistent doubts about whether and

how to apply Chevron deference suggest that the doctrine is unworkable and the Court should reconsider it.

13

Chevron deference poses a significant threat to

federalism.

There are five main virtues of a federalist system that

decentralizes power: (1) accountability, (2) responsiveness, (3) innovation (that is, using states as “experimental laboratories”), (4) public participation in democracy, and (5) protection of liberty. See, e.g., Gregory v.

Ashcroft, 501 U.S. 452, 458 (1991); Michael W.

McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484, 1493-94, 1498-1507, 1510

(1987) (book review). The importance of these virtues is

heightened when federal power is exercised by administrative agencies rather than Congress. State power

would promote accountability, whereas federal agencies

are comprised of unelected officials located in Washington, D.C. Likewise, States would be more responsive to

the diverse interests of a “heterogeneous society,” Gregory, 501 U.S. at 458, while federal agencies must formulate national policy by accounting for interested parties

throughout the nation. Federal regulation displaces the

ability of states to function as experimental laboratories.

Public participation is also drastically decreased as the

“federal government is too distant and its compass too

vast to permit extensive participation by ordinary citizens in its policy formulations.” McConnell, supra, 54 U.

Chi. L. Rev. at 1510. Finally, federal regulations may stifle policy decisions made by state governments that provide greater liberty to citizens than they receive under

the federal constitution. See, e.g., Gonzalez, 546 U.S. at

265-75.

Federalism concerns frequently arise in administrative law because every time an agency acts, it must interpret the federal statute that delegates power to the

14

agency, and “the sheer amount of law . . . made by the

[administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional

process.” INS v. Chadha, 462 U.S. 919, 985-86 (1983)

(White, J., dissenting). Over a decade ago, Chevron’s author, Justice Stevens—joined by the Chief Justice and

Justice Scalia—observed that “a healthy respect for

state sovereignty calls for something less than Chevron

deference” for agency decisions that threaten to disrupt

the federal-state balance. Watters v. Wachovia Bank,

N.A., 550 U.S. 1, 41 (2007) (Stevens, J., dissenting). Yet

putting that principle into action has proven elusive.

An agency can attempt to supersede state law in an

area of traditional state regulation by giving a broad interpretation to an ambiguous statutory term. As long as

that interpretation is reasonable, under Chevron, it is entitled to deference. Unsurprisingly, federal agency officials often “consider Chevron deference when interpreting statutes and drafting rules” and tend to be “more aggressive in [their] interpretive efforts if [they] believe[]

the reviewing court will apply Chevron deference (as opposed to Skidmore deference or de novo review).”

Walker, supra, 16 Geo. J.L. & Pub. Pol’y at 121.

The modern administrative state “wields vast power

and touches almost every aspect of daily life.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.

477, 499 (2010). In light of these concerns, “the danger

posed by the growing power of the administrative state

cannot be dismissed.” City of Arlington, 569 U.S. at 315

(Roberts, C.J., dissenting). Consequently, “the true test

of federalist principle may lie . . . in those many statutory

cases where courts interpret the mass of technical detail

that is the ordinary diet of the law.” Egelhoff v. Egelhoff

15

ex rel. Breiner, 532 U.S. 141, 160-61 (2001) (Breyer, J.,

dissenting) (citations omitted).

Chevron deference is especially problematic in disputes (like this one) between federal agencies and the

States. In theory, “the structure and limitations of federalism . . . allow the States ‘great latitude under their

police powers to legislate as to the protection of the lives,

limbs, health, comfort, and quiet of all persons.’” Gonzales, 546 U.S. at 270 (quoting Medtronic, Inc. v. Lohr, 518

U.S. 470, 475 (1996)). In practice, however, federalism

principles are inevitably marginalized when federal

power is exercised by agencies rather than by Congress.

“‘[U]nlike Congress, administrative agencies are clearly

not designed to represent the interests of States, yet

with relative ease they can promulgate comprehensive

and detailed regulations that have broad pre-emption

ramifications for state law.’” Watters, 550 U.S at 41 (Stevens, J., dissenting) (quoting Geier v. Am. Honda Motor

Co., 529 U.S. 861, 908 (2000) (Stevens, J., dissenting)).

Even before Chevron, John Hart Ely wrote: “[O]n

most hard issues our representatives quite shrewdly prefer not to have to stand up and be counted but rather to

let some executive-branch bureaucrat, or perhaps some

independent regulatory commission, ‘take the inevitable

political heat.” John Hart Ely, Democracy and Distrust:

A Theory of Judicial Review 131-32 (1980). Thus,

“‘[w]hen hard decisions have to be made, [Congress]

pass[es] the buck to the agencies with vaguely worded

statutes.”’ Id. (quoting 122 Cong. Rec. H10,685 (daily ed.

Sept. 21, 1976) (statement of Rep. Levitas)). The broad

deference to federal bureaucrats commanded by Chevron invites such mischief and perpetuates the cycle of political unaccountability that is anathema to federalism.

16

In a related context, a due regard to federalism undergirds the presumption against preemption. See, e.g.,

Rosenberg v. DVI Receivables XVII, LLC, 835 F.3d 414,

419 (3d Cir. 2016). Consistent with that principle, courts

have long required a high hurdle to show congressional

intent to preempt. See, e.g., Wyeth v. Levine, 555 U.S.

555, 565 (2009). Yet Chevron undermines federalism by

inviting judges to “systematically exert bias toward the

[federal] government and against other parties.” Hamburger, supra, 84 Geo. Wash. L. Rev. at 1212. Such bias

is inherently inconsistent with a proper regard for federalism and the Framers’ desire to avoid a centralized accumulation of power.

Chevron increasingly appears unnecessary.

The Court regularly reviews agency interpretations

of statutory text without applying—and sometimes without even addressing—Chevron. See, e.g., Pereira, 2018

WL 3058276 at *3-14 (reviewing Board of Immigration

Appeals’ interpretation of statutory term “notice to appear”); id. at *15 (Alito, J., dissenting) (“[T]he Court, for

whatever reason, is simply ignoring Chevron.”); Nat’l

Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018) (rejecting the EPA’s and Army Corps of Engineers’ definitions of the statutory phrase “waters of the United

States”); FCC v. Fox Television Stations, Inc., 556 U.S.

502 (2009) (reviewing FCC’s policy implementing statutory ban on broadcasting “any obscene, indecent, or profane language”); Smith v. City of Jackson, Miss., 544

U.S. 228 (2005) (deciding whether Age Discrimination in

Employment Act permits disparate-impact liability); id.

at 243 (Scalia, J., concurring in part and in the judgment)

(“This is an absolutely classic case for deference to

agency interpretation.”). The Court’s willingness to

17

forgo the use of Chevron in cases where it ordinarily

would be expected to apply undercuts the notion that

Chevron is indispensable.

In a parallel vein, a number of state supreme courts

have jettisoned Chevron-style deference (or never

adopted it in the first instance) as a tool for reviewing

state agency decisions interpreting state statutes. For

instance, the Wisconsin Supreme Court recently announced: “We have . . . decided to end our practice of deferring to administrative agencies’ conclusions of law.”

Tetra Tech EC, Inc., v. Wisc. Dep’t of Revenue, No.

2015AP2019, 2018 WL 3122322, at *1 (Wis. June 26,

2018). Other States have taken similar positions. See

Stambaugh v. Killian, 398 P.3d 574, 578 (Ariz. 2017)

(Bolick, J., concurring) (“[T]his Court has never expressly considered whether Chevron or its progeny establish standards for administrative deference under Arizona law. I trust that, to the contrary, our constitutional

separation of powers remains vibrant, notwithstanding

the extent to which the United States Supreme Court has

eroded it in the federal context.”); City of Brighton v. Rodriguez, 318 P.3d 496, 501 (Colo. 2014) (courts are not

bound by agencies’ legal interpretations); Gold Creek

Cellular of Mont. Ltd. P’ship v. State Dep’t of Revenue,

310 P.3d 533, 535 (Mont. 2013) (“[W]e have only relied on

Chevron deference when a federal or state agency interprets federal law or a state law companion to federal

law.”); Kan. Dep’t of Revenue v. Powell, 232 P.3d 856, 859

(Kan. 2010)) (“[T]o the extent any statutory interpretation is required, our review is unlimited, with deference

no longer being given to the agency’s interpretation.”);

Friends of the Columbia Gorge, Inc. v. Columbia River

Gorge Comm’n, 213 P.3d 1164, 1172 (Or. 2009) (en banc)

18

(noting that Chevron-type “deference is foreign to the

administrative law of this state”); In re Complaint of

Rovas Against SBC Mich., 754 N.W.2d 259, 271 (Mich.

2008) (“This Court has never adopted Chevron for review

of state administrative agencies’ statutory interpretations, and we decline to adopt it now.”).

Similarly, the Texas Supreme Court has “never expressly adopted the Chevron or Skidmore doctrines for

[its] consideration of a state agency’s construction of a

statute.” R.R. Comm’n of Tex. v. Tex. Citizens for a Safe

Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011).

Although a Texas agency’s view may receive “serious

consideration” in certain circumstances involving statutes found to be ambiguous, id., the Texas Supreme

Court “rarely defers to agencies.” Tex. Att’y Gen. Op.

No. KP-115, 2016 WL 5873029, at *5 (2016). That is because “the Texas Supreme Court has a well-developed,

tiered process for assessing the meaning of statutes as a

matter of law: text, context, and canons of construction,”

with the result that “Texas courts seldom conclude that

a statute is ambiguous.” Id. at *4 (citations omitted).

Texas’s approach may be a suitable model for looking

beyond Chevron on the national stage. When a reviewing

court is more inclined to employ such tools to find “that

the meaning of a statute is apparent from its text and

from its relationship with other laws,” that court

“thereby finds less often that the triggering requirement

for Chevron deference exists.” Scalia, supra, 1989 Duke

L. J. at 521. Eliminating Chevron will help restore the

distinction between questions of statutory interpretation

that require legal acumen but not technical expertise

(where no agency deference is appropriate), and questions that require technical expertise or involve policy

19

judgments (where deference is more appropriate).

Pojanowski, supra, 81 Mo. L. Rev. at 1086-87.

II. At a Minimum, the Court Should Hold That the

Court of Appeals Manifestly Misapplied Chevron.

There is a split among the federal court of appeals on

the question of whether an agency can properly infer authorization to act from congressional silence. The Third,

Fourth, Fifth, Seventh, Tenth, Eleventh, and District of

Columbia Circuit courts of appeals have all answered

that question in the negative. See, e.g., Coffelt v. Fawkes,

765 F.3d 197, 202 (3d Cir. 2014); Chamber of Commerce

of U.S. v. NLRB, 721 F.3d 152, 154 (4th Cir. 2013); Texas

v. United States, 809 F.3d 134, 182 (5th Cir. 2015); Sierra

Club v. EPA, 311 F.3d 853, 861 (7th Cir. 2002); Marlow

v. New Food Guy, Inc., 861 F.3d 1157, 1163-64 (10th Cir.

2017); Bayou Lawn & Landscape Servs. v. Sec’y of Labor, 713 F.3d 1080, 1084-85 (11th Cir. 2013); Ry. Labor

Execs.’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671

(D.C. Cir. 1994) (en banc), amended on other grounds, 38

F.3d 1224 (D.C. Cir. 1994).

The Ninth Circuit’s contrary view, as expressed in

this case and several prior decisions, stands alone among

the federal courts of appeals. Cal. Sea Urchin Comm’n

v. Bean, 883 F.3d 1173 (9th Cir. 2018); Or. Rest. & Lodging Ass’n v. Perez, 816 F.3d 1080, 1089 (9th Cir. 2016),

cert. denied sub nom. Wynn Las Vegas, LLC v. Cesarz,

No. 16-163, 2018 WL 3096373 (U.S. June 25, 2018), and

cert. denied sub nom. Nat’l Rest. Ass’n v. Dep’t of Labor,

No. 16-920, 2018 WL 3096374 (U.S. June 25, 2018). And

even within the Ninth Circuit, that isolated view has been

criticized. See Perez, 816 F.3d at 1094 (Smith, J., dissenting) (“[T]he majority suggests an agency may regulate

20

wherever that statute does not forbid it to regulate. This

suggestion has no validity.”); Or. Rest. & Lodging Ass’n

v. Perez, 843 F.3d 355, 363 (9th Cir. 2016) (O’Scannlain,

J., dissenting from denial of rehearing en banc) (“It

should come as no surprise that our sister circuits have

roundly and forcefully repudiated the specious theory of

agency power our court now adopts. Those circuits have

echoed again and again the basic reality that silence does

not always constitute a gap an agency may fill, but often

reflects Congress’s decision not to regulate in a particular area at all, a decision that is binding on the agency.”).

The Court should grant the petition for a writ of certiorari in this case, at a minimum, to resolve this split and

correct the Ninth Circuit’s aberrant reading of Chevron.

At the time the petition was filed in this case, two other

petitions for writ of certiorari were pending before this

Court seeking review of the Ninth Circuit’s statutory-silence theory of Chevron. See Wynn Las Vegas, LLC v.

Cesarz, No. 16-163 (filed Aug. 1, 2016); Nat’l Rest. Ass’n

v. U.S. Dep’t of Labor, No. 16-920 (filed Jan. 19, 2017).

But the Court denied both of those petitions on June 25,

2018. Accordingly, while the Court could choose to reconsider Chevron in any of numerous pending or future

cases, this is currently the only pending case in which the

Court has an opportunity to review the Ninth Circuit’s

improper interpretation of Chevron.

21

C O N C L U S IO N

The Court should grant the petition for a writ of certiorari.

Respectfully submitted.

STEVE MARSHALL

Attorney General

of Alabama

KEN PAXTON

Attorney General of

Texas

MARK BRNOVICH

Attorney General

of Arizona

JEFFREY C. MATEER

First Assistant

Attorney General

LESLIE RUTLEDGE

Attorney General

of Arkansas

SCOTT A. KELLER

Solicitor General

Counsel of Record

DEREK SCHMIDT

Attorney General

of Kansas

JOSEPH D. HUGHES

Assistant Solicitor General

JEFF LANDRY

Attorney General

of Louisiana

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

MADELINE K. MALISA

Chief Counsel to the

Governor of Maine

BILL SCHUETTE

Attorney General

of Michigan

22

JOSHUA D. HAWLEY

Attorney General

of Missouri

TIMOTHY C. FOX

Attorney General

of Montana

DOUGLAS J. PETERSON

Attorney General

of Nebraska

MIKE HUNTER

Attorney General

of Oklahoma

ALAN WILSON

Attorney General

of South Carolina

SEAN D. REYES

Attorney General

of Utah

PATRICK MORRISEY

Attorney General

of West Virginia

BRAD D. SCHIMEL

Attorney General

of Wisconsin

23

PETER K. MICHAEL

Attorney General

of Wyoming

JULY 2018