Amicus Curiae Brief — American Hospital Association, et al., Petitioners v. Xavier Becerra, Secretary of Health and Human Services, et al.

No. 20-1114

IN THE

Supreme Court of the United States

————

AMERICAN HOSPITAL ASSOCIATION, ET AL.,

Petitioners,

V.

XAVIER BECERRA,

SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

————

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

————

BRIEF FOR AMICI CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS,

AMERICAN FARM BUREAU FEDERATION,

AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS,

NATIONAL CATTLEMEN’S BEEF ASSOCIATION, AND

NATIONAL MINING ASSOCIATION

SUPPORTING PETITIONERS

————

CHRISTOPHER E. TUTUNJIAN EVAN A. YOUNG

Counsel of Record

BAKER BOTTS L.L.P.

BAKER BOTTS L.L.P.

910 Louisiana Street

98 San Jacinto Boulevard

Houston, Texas 77002-4995

Suite 1500

(713) 229-1234

Austin, Texas 78701-4078

(512) 322-2500

evan.young@bakerbotts.com

Counsel for Amici Curiae

(additional counsel listed on inside cover)

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

AMY CHAI

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th St. NW

Washington, D.C. 20005

(202) 266-8232

Counsel for Amicus Curiae

National Association of

Home Builders

KATIE SWEENEY

NATIONAL MINING

ASSOCIATION

101 Constitution Ave. NW,

Ste 500 E

Washington, D.C. 20001

(202) 463-2646

Counsel for Amicus Curiae

National Mining Association

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Ave., SW,

Ste 1000 W

Washington, D.C. 20024

(202) 406-3618

Counsel for Amicus Curiae

American Farm Bureau Federation

RICHARD MOSKOWITZ

TYLER KUBIK

AMERICAN FUEL &

PETROCHEMICAL

MANUFACTURERS

1800 M Street, NW

Suite 900 North

Washington, D.C. 20036

(202) 457-0480

Counsel for Amicus Curiae

American Fuel & Petrochemical

Manufacturers

SCOTT YAGER

NATIONAL CATTLEMEN’S

BEEF ASSOCIATION

1275 Pennsylvania Ave., NW, Ste 801

Washington, D.C. 20004

(202) 347-0228

Counsel for Amicus Curiae

National Cattlemen’s

Beef Association

TABLE OF CONTENTS

Page

Table of Authorities .......................................................... ii

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

Introduction and Summary of Argument ...................... 4

Argument ........................................................................... 6

I.

The Lower Courts’ Application Of

Chevron Unfairly And Significantly

Harms Businesses And Individuals ................. 7

A. Chevron

promotes

judicial

abdication that can have crippling

economic consequences ............................ 8

B. The specter of reflexive deference

haunts many of amici’s members ......... 12

II. Curing Chevron Requires Restoring The

Command To Exhaust All Tools Of

Statutory Construction And Allowing

Courts To Find Ambiguity Only As A

Last Resort ....................................................... 20

A. Step One requires searching for

statutory meaning, not verifying

whether there is ambiguity ..................... 20

B. As it did in Kisor for Auer deference,

this Court should now reorient

Chevron’s Step One analysis.................... 23

C. Emphasizing meaning rather than

ambiguity at Step One will

dramatically reduce and confine

Chevron’s harms ...................................... 26

Conclusion ........................................................................ 29

(i)

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott Labs. v. Young,

920 F.2d 984 (D.C. Cir. 1990) ...................................... 20

Alabama Ass’n of Realtors v. Dep’t of

Health & Human Servs.,

594 U.S. __, No. 21A23, 2021 WL

3783142 (Aug. 26, 2021) ...........................................25, 26

Alon Ref. Krotz Springs, Inc. v. EPA,

936 F.3d 628 (D.C. Cir. 2019) ...................................... 11

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018) ......................................... 20

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc.,

467 U.S. 837 (1984) ............................................... passim

Envtl. Integrity Project v. EPA,

969 F.3d 529 (5th Cir. 2020) ....................................26, 27

Epic Systems Corp. v. Lewis,

138 S. Ct. 1612 (2018) ................................................... 25

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ........................ 6, 8, 17, 18

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................... 7, 23, 24, 25

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .......................................... 8

Michigan v. EPA,

576 U.S. 743 (2015) ........................................ 8, 11, 19, 21

(ii)

(iii)

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

X Internet Servs.,

545 U.S. 967 (2005) ....................................................... 28

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021) ..............................................25, 26

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ................................................... 18

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) ......................................................... 22

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) ................................................... 25

Sierra Club v. EPA,

964 F.3d 882 (10th Cir. 2020) ....................................... 27

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ....................................................... 27

Szonyi v. Barr,

942 F.3d 874 (9th Cir. 2019) ......................................... 18

Talk Am., Inc. v. Michigan Bell Tel. Co.,

564 U.S. 50 (2011) ......................................................... 19

Valent v. Comm’r of Soc. Sec.,

918 F.3d 525 (6th Cir. 2019) ......................................... 10

White Stallion Energy Ctr., LLC v. EPA,

748 F.3d 1222 (D.C. Cir. 2014) ...............................10, 11

Zivotofsky v. Clinton,

566 U.S. 189 (2012) ....................................................... 21

STATUTES

5 U.S.C. § 706 ...................................................................... 17

16 U.S.C. § 3834 ....................................................... 12, 15, 16

42 U.S.C. § 1395l ............................................................15, 16

(iv)

42 U.S.C. § 7412 .................................................................. 10

42 U.S.C. § 7545 .................................................................. 11

Agricultural Act of 2014,

Pub. L. No. 113-79, 128 Stat. 649 (2014) .................... 14

Agriculture Improvement Act of 2018,

Pub. L. No. 115-334, 132 Stat. 4490 (2018) ..................... 14

Food Security Act of 1985,

Pub. L. No. 99-198, 99 Stat. 1354 (1985) .................... 14

REGULATORY AUTHORITIES

U.S. Dep’t of Agric.,

“Conservation Reserve Program: What’s

New?” (June 2021) ......................................................... 13

U.S. Dep’t of Agric.,

“Grassland Conservation Reserve Program

(CRP): Working Lands” (June 2021) ............................ 13

OTHER AUTHORITIES

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts,

116 Mich. L. Rev. 1 (2017) ........................................9, 20

Brett M. Kavanaugh,

Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016) ..................................9, 22

Cass R. Sunstein,

Constitutionalism After the New Deal,

101 Harv. L. Rev. 421 (1987) ......................................... 8

Christopher J. Walker,

Legislating in the Shadows,

165 U. Pa. L. Rev. 1377 (2017) .................................... 19

IN THE

Supreme Court of the United States

————

AMERICAN HOSPITAL ASSOCIATION, ET AL.,

Petitioners,

v.

XAVIER BECERRA,

SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

————

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

————

BRIEF FOR AMICI CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS,

AMERICAN FARM BUREAU FEDERATION,

AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS,

NATIONAL CATTLEMEN’S BEEF ASSOCIATION, AND

NATIONAL MINING ASSOCIATION

SUPPORTING PETITIONERS

————

INTEREST OF AMICI CURIAE

Amici curiae are the group of unrelated business associations listed below whose members are regularly affected by the doctrines of judicial deference to agencies.1

Each amicus dedicates its resources to facilitating the

work and livelihoods of its members—both individuals

Pursuant to this Court’s Rule 37.6, amici affirm that no counsel for

a party authored this brief in whole or in part or made a monetary

contribution intended to fund this brief ’s preparation or submission,

and that no person or persons other than amici and their counsel

made such a monetary contribution. Petitioners have filed a blanket

consent and respondents have consented to this brief ’s filing.

1

(1)

2

and companies—and enhancing those members’ abilities

to serve the public throughout the United States. Federal agencies, often multiple agencies, pervasively regulate

amici’s members, who repeatedly have experienced the

consequences of those agencies’ claims of entitlement to

Chevron or Auer deference. But Chevron’s first step was

always supposed to be rigorous: Courts must read the

statutory text and consider deference only if ostensible

ambiguity survives application of all the canons of construction. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). Such rigor in theory has often been replaced in practice by a dual impulse—first to find statutory ambiguity and then to defer. Reflexive deference undermines the rule of law and

the ability of amici’s members to order their affairs.

Amici therefore have a substantial interest in this

case. Amici are:

1. The National Association of Home Builders

(NAHB) is a Washington, D.C.-based trade association

whose mission is to enhance the climate for housing and

the building industry. Chief among NAHB’s goals are

providing and expanding opportunities for all people to

have safe, decent, and affordable housing. Founded in

1942, NAHB is a federation of more than 700 state and

local associations. About one-third of NAHB’s approximately 140,000 members are home builders or remodelers; its builder members construct about 80% of all new

homes built in the United States. The remaining members are associates working in closely related fields within the housing industry, such as mortgage finance and

building products and services. NAHB frequently participates as a party litigant and amicus curiae to safeguard

the constitutional and statutory rights and economic interests of its members and those similarly situated.

2. The American Farm Bureau Federation

(AFBF), headquartered in Washington, D.C., was

3

formed in 1919 and is the largest nonprofit general farm

organization in the United States. Representing about

six million member families in all fifty states and Puerto

Rico, AFBF’s members grow and raise every type of agricultural crop and commodity produced in the United

States. Its mission is to protect, promote, and represent

the business, economic, social, and educational interests

of American farmers and ranchers. To that end, the

AFBF regularly participates in litigation, including as

amicus curiae in this and other courts, to represent its

members.

3. The American Fuel & Petrochemical Manufacturers (AFPM) is a national trade association representing most of the United States refining and petrochemical

manufacturing capacity. These companies provide jobs,

directly and indirectly, to more than three million Americans, contribute to our economic and national security,

and enable the production of thousands of vital products

used by families and businesses throughout the nation.

AFPM regularly engages in legal advocacy on issues that

affect its members.

4. The National Cattlemen’s Beef Association

(NCBA), based in Centennial, Colorado, is the largest

and oldest national trade association representing American cattle producers. Through state affiliates, NCBA

represents more than 175,000 of America’s farmers and

ranchers, who provide a significant portion of the nation’s

food supply. NCBA works to advance the economic, political, and social interests of the U.S. cattle business and

to advocate for the cattle industry’s policy positions and

economic interests.

5. The National Mining Association (NMA), based

in Washington, D.C., is a national trade association whose

members include the producers of most of America’s

coal, metals, and industrial and agricultural minerals; the

manufacturers of mining and mineral-processing ma-

4

chinery, equipment, and supplies; and engineering and

consulting firms, financial institutions, and other firms

serving the mining industry. NMA often participates in

litigation raising issues of concern to the mining community.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Chevron was decided in an era marked by massively

unconstrained judicial discretion. This Court’s decision

prevented judges from improperly interfering with the

Executive Branch’s implementation of national policy—

and it also protected amici’s members and the rest of the

regulated public from sudden, destabilizing lurches in the

law caused by judicial fiat. Even today, Chevron occasionally allows welcome regulatory flexibility.

But two developments bear on whether Chevron plays

its intended role. First, this Court has made substantial

progress in requiring courts to fairly, consistently, and

rigorously interpret statutory and regulatory texts. The

risk of judicial commandeering of the law—bending it to

judges’ own will—is not nonexistent, but has been

checked. Second, agencies have become more conditioned to expect deference, which, in amici’s experience,

has created an incentive for agencies to interpret statutes

and regulatory schemes in a manner that casts aside the

fairest textual reading and replaces Congress’s policy

judgments with their own. The risk of administrative

commandeering of the law—bending it to their own will

or otherwise displacing clear congressional command—is

considerable. This case provides a clear instance of that

phenomenon, and amici have experienced many others.

Several are described in detail in this brief.

Under these circumstances, which have developed after Chevron was decided, reflexive judicial deference is

not salutary, but corrosive. Specifically, Chevron’s Step

5

One—assessing whether statutory text actually is ambiguous, rather than (for example) merely complicated—

is often honored in the breach. Courts may find it easier

to decree that complex (or just tedious) statutory text is

“ambiguous,” and then rush to Step Two, which involves

a once-over to confirm “reasonableness.” The major

problem with this common pathway—for the law and for

amici’s members in practice—is that Chevron depends

on a properly enforced Step One. As a matter of legal

theory, there is no justification or warrant to deferentially consider “reasonableness” if the statute speaks clearly.

And in practice, an insouciant approach to statutory construction ultimately denies the regulated public, like

amici’s members, the certainty and predictability that

they need to order their affairs. It is not a matter of legal

theory for a typical homebuilder, farmer, miner, cattle

producer, or fuel refiner. All acutely feel it when, in reliance on statutory commands, they have invested money,

time, and sweat in a project only to see the regulatory

ground upon which they stood fall from under their feet

as the result of a whimsical regulatory enactment that

contravenes the statute.

In other words, Chevron’s problems transcend the

constitutional and other legal deficiencies with which the

Court is familiar. Chevron affects Americans’ everyday

lives with concrete, real-world, but largely hidden consequences. When an agency invokes Chevron—by name or

just by deed—it claims (1) that Congress has enacted a

vague or ambiguous statute and (2) that it, the agency,

has the power to interpret it. The public is left to guess

how the agency may wield its interpretive authority.

Someone facing an agency’s questionable interpretation

of a statute that the agency deems “ambiguous” knows

(or soon will learn) that Chevron is always lurking. And

given the degree of deference courts afford, such a person often sees little choice but to capitulate. A regulated

6

party’s choices frequently appear to be:

 challenge the agency’s interpretation in court, lose,

and have to comply with the agency’s regulation, or

 skip a costly lawsuit and succumb to compliance

now.

Chevron’s looming presence can effectively eliminate the

Administrative Procedure Act’s promise of judicial review.

This case presents an opportunity to meaningfully improve the law—by clearly and emphatically enforcing the

proper limits on Chevron deference. Specifically, this

Court should instruct lower courts to follow Chevron’s

often-overlooked command to exhaust all the traditional

tools of statutory construction before deeming a statute

ambiguous. Rigorously enforcing—indeed, renewing and

amplifying—this aspect of Chevron will largely cure the

reflexive deference that courts have too often exhibited,

restore the judiciary to its proper role in interpreting the

regulatory burdens imposed on the public, and prevent

agencies from overwriting Congress’s policy judgments

with their own.

ARGUMENT

“There’s an elephant in the room with us today,”

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

Cir. 2016) (Gorsuch, J., concurring), and that elephant

hasn’t budged: Because of Chevron, bureaucratic agencies possess not just the authority to enforce the law but

also the power to make and interpret it. This concentration of federal power poses the risk to individual liberty

that caused the Framers to separate those powers in the

first place. When agencies rely on Chevron to enforce

(and make and interpret) law, they threaten to crush any

individual or business standing in the way, as amici’s

7

2

members are all too aware. Agencies are staffed by humans, who respond to incentives—and the power conferred by Chevron tempts agencies to push the boundaries established by Congress.

For the regulated public, this regime injects massive

uncertainty. First, will an agency deem a statute (or

even its own regulation3) to be ambiguous? Then, if so,

what will an agency choose to impose on the public—and

is it something that those who are regulated can accept?

Next, whether the new regulation is desirable or not, the

public must forecast whether the agency’s promulgation

will be deemed “reasonable.” At any one of these stages,

even if the regulated public can accept the agency’s enactment, Chevron risks great instability on the part of

those who just want to serve the public by doing their

jobs.

This Court can greatly reduce these problems by reiterating the often-overlooked rule that, before concluding

that a statute is ambiguous, “a court must exhaust all the

‘traditional tools’ of construction.” Kisor v. Wilkie, 139

S. Ct. 2400, 2415 (2019) (quoting Chevron, 467 U.S. at 843

n.9).

I. THE LOWER COURTS’ APPLICATION OF CHEVRON

UNFAIRLY AND SIGNIFICANTLY HARMS BUSINESSES

AND INDIVIDUALS

Businesses cannot avoid some kinds of uncertainty;

market forces, third-party actions, and other variables

For ease of reading, and unless otherwise indicated, “Chevron” refers to the panoply of contemporary interpretive-deference doctrines.

3

The Court has also deferred when an agency itself has regulated

under a statute, then later claims that its own regulation is hopelessly ambiguous—but in Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019),

the Court imposed greater discipline on agencies and courts before

such deference is permissible. See infra Part II.B (arguing that similar discipline should be imposed in the Chevron context).

2

8

are part of life. But Chevron adds an additional, unjustifiable, and especially problematic form of uncertainty.

“Chevron’s very point is to permit agencies to upset the

settled expectations of the people by changing policy direction depending on the agency’s mood at the moment.”

Gutierrez-Brizuela, 834 F.3d at 1158 (Gorsuch, J., concurring). Chevron can destabilize sound business decisions, creating risk that even hiring “an army of perfumed lawyers and lobbyists” cannot eliminate. Id. at

1152. And if an agency may use its “adjustment” authority to make fundamental changes to a regulatory scheme

enacted by Congress, the law becomes nothing more than

a known unknown—even though one of the fundamental

purposes of law is to eliminate as much unpredictability

as possible.

A. Chevron promotes judicial abdication that can

have crippling economic consequences

As Justice Thomas has explained, Chevron “wrests

from Courts the ultimate interpretative authority to say

what the law is and hands it over to the Executive” and

“permit[s] a body other than Congress to perform a function that requires an exercise of the legislative power.”

Michigan v. EPA, 576 U.S. 743, 761-762 (2015) (Thomas,

J., concurring) (citations and internal quotation marks

omitted).4 This bestowal of concentrated power invades

what has for over two centuries been “emphatically the

province and duty of the judicial department[:] to say

what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch)

See also, e.g., Gutierrez-Brizuela, 834 F.3d at 1155 (Gorsuch, J.,

concurring) (quoting Federalist No. 47: “The accumulation of all

powers, legislative, executive, and judiciary, in the same hands * * *

may justly be pronounced the very definition of tyranny.”); Cass R.

Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev.

421, 467 (1987) (“[F]oxes should not guard henhouses * * * . Those

limited by a provision should not determine the nature of the limitation.”).

4

9

137, 177 (1803).

By merging these powers, Chevron can result in outcomes that impose serious economic harms on regulated

entities. So long as the statute has a shred of ambiguity,

the regulated entity is left to the agency’s whim. But the

premise of ambiguity is itself often questionable. Application of Chevron “turns out to be an entirely personal

question, one subject to a certain sort of ipse dixit: is the

language clear, or is it ambiguous?” Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L.

Rev. 2118, 2142 (2016). Because “judges have wildly different conceptions of whether a particular statute is clear

or ambiguous,” “[t]he key move from step one (if clear) to

step two (if ambiguous) of Chevron is not determinate.”

Id. at 2152. And the judge’s “simple threshold determination of clarity versus ambiguity may affect billions of

dollars, the individual rights of millions of citizens, and

the fate of clean air rules, securities regulations, labor

laws, or the like.” Id. at 2153.

In theory, Chevron deference should promote natural

or even reasonable interpretations, and it was born from

the notion that if there truly is ambiguity, life-tenured

judges should not be the ones to select among permissible policy outcomes. That principle remains true today.

But in practice, the predicate for applying the doctrine

turns on a judge finding some speck of ambiguity—often

without using any guide that is terribly systematic, principled, or uniform. Once that step has been achieved, often quite casually, courts yield to any plausible interpretation. Indeed, circuit courts applying the Chevron

framework concluded at Step One that the statute was

ambiguous 70% of the time, and 93.8% of those agency

interpretations reaching step two were upheld. Kent

Barnett & Christopher J. Walker, Chevron in the Circuit

Courts, 116 Mich. L. Rev. 1, 32-34 (2017) (reviewing

1,000+ federal appellate decisions applying the Chevron

10

framework between 2003 and 2013).

That may not have been the Court’s expectation in

1984. But over time, as Judge Kethledge recently put it,

“the federal courts have become habituated to defer to

the interpretive views of executive agencies, not as a matter of last resort but first,” and “[i]n too many cases,

courts do so almost reflexively.” Valent v. Comm’r of

Soc. Sec., 918 F.3d 516, 525 (6th Cir. 2019) (Kethledge, J.,

dissenting). The extreme deference that courts afford

under Chevron is all too often cost-prohibitive for anyone

who would challenge an agency’s questionable interpretation.

Accordingly, the outcome of any challenge hinges on

the court’s determination whether the statute is ambiguous. This Court has already rebuked the D.C. Circuit for

too readily jumping to a conclusion of ambiguity, and the

present case proves that stronger medicine is needed for

a more lasting cure.

This Court’s correction of the D.C. Circuit’s decision in

White Stallion Energy Center, LLC v. Environmental

Protection Agency, 748 F.3d 1222 (D.C. Cir. 2014), provides a good and familiar example. The Clean Air Act

directs the Environmental Protection Agency (EPA) to

regulate emissions of hazardous air pollutants from power plants if EPA finds regulation “appropriate and necessary.” 42 U.S.C. § 7412(n)(1)(A). EPA maintained that

“it is reasonable to make the listing decision, including

the appropriate determination, without considering

costs.” White Stallion, 748 F.3d at 1236 (citation and internal quotation marks omitted). The D.C. Circuit

agreed. Id. at 1237-1238. “On its face, [the statute] neither requires EPA to consider costs nor prohibits EPA

from doing so,” and therefore, the D.C. Circuit concluded

that “the statute does not evince unambiguous congressional intent on the specific issue of whether EPA was

required to consider costs in making its ‘appropriate and

11

necessary’ determination.” Ibid. The court quickly concluded that EPA’s approach was “clearly permissible.”

Id. at 1238.

This Court disagreed. Michigan, 576 U.S. at 751.

“Read naturally in the present context, the phrase ‘appropriate and necessary’ requires at least some attention

to cost.” Id. at 752. This Court also noted that

“[s]tatutory context reinforces the relevance of cost” to

this determination. Id. at 753. Because the statute required the consideration of cost at this stage, EPA’s refusal to do so violated the statute’s command. Id. at 754

(“[Chevron] does not license interpretive gerrymanders

under which an agency keeps parts of statutory context it

likes while throwing away parts it does not.”). As this

illustrative episode demonstrates, a court’s Step One

conclusion largely determines the outcome. A habit of

hastily concluding that a statute is ambiguous, or reaching that conclusion under an especially low threshold for

finding ambiguity, enables an agency expansive scope to

rewrite the statute.5

The D.C. Circuit’s continued reflexive deference is reflected not

just in the present case but others. For example, one of three

“[r]equired elements” of annual rulemaking (where EPA had to determine a given year’s “renewable fuel obligation” under the Clean

Air Act’s Renewable Fuel Standard program) was for EPA to ensure

that the obligation “shall be applicable to refineries, blenders, and

importers, as appropriate.” 42 U.S.C. § 7545(o)(3)(B)(ii)(I). EPA

never considered whether the obligation remained “appropriate” in

annual rulemaking. The D.C. Circuit allowed EPA to evade the clear

statutory command by deeming the command ambiguous. Alon Ref.

Krotz Springs, Inc. v. EPA, 936 F.3d 628, 654-659 (D.C. Cir. 2019).

This Court did not grant certiorari, but reversing in the present case

will help cure the underlying problem in Alon: deep-seated, reflexive

deference.

5

12

B. The specter of reflexive deference haunts many

of amici’s members

Amicus American Farm Bureau Federation is currently confronting a manifestation of this problem that

mirrors the facts of the case currently before the Court.

The following situation is just one that would be affected

by reversing the judgment below on Step One grounds.

Administered by the Department of Agriculture

(USDA), the Conservation Reserve Program (CRP)

compensates farmers who agree to set aside a portion of

their land for environmental conservation. See 16 U.S.C.

§ 3834. But at what rate? The statute governing the

CRP answers the question by prescribing several steps.

 First, the statute directs the Secretary of Agriculture to consider certain specified factors to determine the optimal rental rate for CRP contracts.

Id. § 3834(d)(1).

 Second, to prevent the agency from paying as

much as (and certainly more than) the actual rental

price for farmland—which would have the U.S.

government compete with farmers and affirmatively distort the rental price of farmland—the statute

then caps CRP contracts at specified percentages

of the average local rental rate for a given type of

CRP contract. Id. § 3834(d)(2)(B)(i) (imposing a

limitation on reenrolled CRP contracts), (d)(2)(C)

(imposing a limitation on CRP contracts for grasslands), (d)(4)(E) (imposing a limitation on first-time

CRP contracts).

In other words, the statute initially directs the Secretary

to figure out what price would be required to meet various goals; then, if that price turns out to be more than

Congress is willing to pay, the statute imposes express

caps. This is straightforward statutory construction.

Yet USDA appears to view this precisely articulated

13

procedure as ambiguous, and thus easily disregarded. In

an explicit effort to “[i]ncrease[] program payments to

encourage more land enrollment,” USDA has promulgated various incentives—e.g., a “Climate-Smart Practice

Incentive” and “Water Quality Incentive”—and added a

one-time 10% inflationary adjustment for the life of a

CRP contract. U.S. Dep’t of Agric., “Conservation Reserve Program: What’s New?” (June 2021).6 For grasslands, USDA has established a CRP minimum rental rate

of $15 and asserted that imposing this minimum “would

benefit 1,347 counties that are currently under the $15

minimum.” Ibid. USDA has explicitly stated that for

grasslands, it will start with the limitation imposed by

statute and then increase that rate with incentives and

adjustments such as the Climate-Smart Practice Inventive. U.S. Dep’t of Agric., “Grassland Conservation

Reserve Program (CRP): Working Lands” (June 2021).7

That is, anticipating broad judicial deference, the

agency would flip the statutory plan. The specific caps

that Congress imposed (notably, in the provision following the Secretary’s initial assessment) turn out, on the

Secretary’s reading, to be advisory—something that the

Secretary may adjust up or down. Of course, such adjustments eliminate the point of the specific rate caps,

because the Secretary already has authority to determine

desired rental rates based on a host of discretionary factors. Congress clearly set out a two-step plan that constrains that discretion and is easy to follow—unless one is

determined to extract ambiguity from a clear statute.

For American farmers, of course, this is not merely an

intellectual exercise. It is a question of extreme imAvailable at https://www.fsa.usda.gov/Assets/USDA-FSA-Public/

usdafiles/FactSheets/crp-whats-new-fact-sheet.pdf.

7

Available at https://www.fsa.usda.gov/Assets/USDA-FSA-Public/

usdafiles/FactSheets/fsa_crpgrasslands_workinglandsfactsheet_21.pdf.

6

14

portance because it will affect long-term planning for agricultural land use. Congress acted specifically to ensure

that USDA did not destabilize rental markets by ensuring that CRP participation would be well-paying yet sufficiently below the rental price that it would not itself

create a cycle of price consequences.8 Reading the statute plainly would preserve stability; USDA’s desired

reading would do the opposite.

A plain reading of the statute at issue in this case, as

petitioners request, would help generate comparable stability in the CRP program and elsewhere. Indeed, the

two statutory schemes are remarkably parallel. Both

agencies—the Department of Health and Human Services (HHS) and USDA—have sought to deploy Chevron

deference by searching for some statutory ambiguity

somewhere in the statute to evade what in fact are unambiguous statutory limitations on agency discretion with

respect to the specific question at issue:

Congress first authorized the CRP program in 1985. Food Security

Act of 1985, Pub. L. No. 99-198, tit. XII, subtit. D, 99 Stat. 1354,

1509-1514 (1985). These limitations in the form of the percentage

caps noted above were not imposed until roughly 30 years later. Section 2005(c)(2) of the Agricultural Act of 2014, Pub. L. No. 113-79,

128 Stat. 649 (2014), created the limitation for grasslands CRP contracts, id. at 718, and Sections 2207(c)(2)(C) and 2207(c)(5)(D) of the

Agriculture Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat.

4490 (2018), inserted the other limitations on first-time and reenrolled CRP contracts, id. at 4548-4549. Should USDA be permitted

to interpret the statute in this way, it will have cast aside two congressional efforts to restrain how the agency operates the CRP program and essentially treat expressly enacted text that operates to

withdraw discretion as in fact leaving USDA with all the discretion it

arguably had before.

8

15

Conservation Reserve

Program,

16 U.S.C. § 3834

Medicare Reimbursement,

42 U.S.C. § 1395l



HHS must conduct surveys “to determine the

hospital acquisition

cost” for each covered

drug.

§ 1395l(t)(14)(D).



USDA must “annually

conduct a survey of per

acre estimates of county average market * * *

cash rental rates for

cropland and pastureland in all counties” nationwide.”

§ 3834(d)(4)(A).



If HHS has collected

the required “hospital

acquisition cost survey

data,” HHS must set

the reimbursement rate

equal to “the average

acquisition cost for the

drug” and may vary the

rate “by hospital

group.”

§ 1395l(t)(14)(A)(iii)(I).



To determine “the

amount of annual rental

payments,” USDA must

consider “the amount

necessary to encourage

* * * participat[ion] in

the program,” “the impact on the local farmland rental market,”

and “such other factors

as the Secretary determines to be appropriate.”

§ 3834(d)(1).



But if HHS has not collected the required

“hospital acquisition

cost data,” HHS must

set a reimbursement

rate equal to the “average price for the drug,”



Depending on the type

of CRP contract, the

rental payments may

not exceed certain percentages of the average

local rental rate for that

type of CRP contract as

16

which is “calculated and

adjusted by the Secretary as necessary for

purposes of this paragraph [§ 1395l(t)(14)].”

§ 1395l(t)(14)(A)(iii)(II).



HHS claims “adjustment” authority to use

certain criteria it otherwise cannot consider

to set a reimbursement

rate it otherwise cannot

impose.

determined by the required annual survey.

§ 3834(d)(2)(B)(i),

(d)(2)(C), (d)(4)(E).



USDA claims “adjustment” authority to pay

rental rates for farmland that it otherwise

cannot pay.

Further linking the two regulatory programs is their

emphasis on the statute’s supposed ambiguity at Step

One. Only if there is ambiguity can either agency’s effort

to evade Congress’s limitations succeed. But no ambiguity exists in either example. With respect to the pending

case, Congress specified in detail that if HHS wants to

set reimbursement rates based on acquisition cost and

vary such rates by hospital group, the agency must collect sufficient hospital-acquisition-cost survey data.

HHS’s interpretation of its ancillary modification authority “essentially reads subclause (I) out of the statute by

permitting the agency to do under subclause (II) without

the requisite data what subclause (I) authorizes only with

that data.” Pet. App. 39a (Pillard, J., dissenting). HHS

demands deference for an interpretation that renders

meaningless a provision meant to limit its discretion.

This striking request illustrates the need for this Court

to place limits on how courts apply Chevron. This case

may determine whether members of amicus AFBF must

accept USDA’s effort to undermine a carefully calibrated

statutory scheme to ensure that USDA may support a

17

useful program without distorting agricultural land prices.

Of course, these cases are not unique. Chevron necessarily creates incentives for agencies to disregard boundaries imposed by the legislative branch. Amici do not

contend that such disregard is always or even frequently

conscious, deliberate, or malicious—nevertheless, the

separation of powers and the public’s ability to rely on

clear law are threatened just the same.

One particularly important statute that only uneasily

coexists with Chevron is the Administrative Procedure

Act (APA) itself. The APA mandates that “the reviewing

court shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency

action.” 5 U.S.C. § 706. But Chevron (as often applied, at

least) largely excuses reviewing courts from actually “interpret[ing] * * * statutory provisions”:

At Chevron step one, judges decide whether the

statute is “ambiguous,” and at step two they decide whether the agency’s view is “reasonable.”

But where in all this does a court interpret the law

and say what it is? When does a court independently decide what the statute means and

whether it has or has not vested a legal right in a

person? Where Chevron applies that job seems to

have gone extinct.

Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J., concurring).

By tasking the agency with the power to declare what

the law is, “Chevron seems no less than a judge-made

doctrine for the abdication of the judicial duty[,]” under

both the APA and the Constitution. Ibid. The courts’

failure to fulfill their duty ultimately means that regulated parties’ “liberties may now be impaired not by an in-

18

dependent decisionmaker seeking to declare the law’s

meaning as fairly as possible—the decisionmaker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy

whim may rule the day.” Id. at 1153. Judge Collins recently put it this way: “Where * * * the ambiguous provision at issue imposes an express legislative constraint on

the agency’s authority, the Chevron doctrine has the effect of placing the ability to construe authoritatively the

limits on an agency’s power in that agency’s own selfinterested hands.” Szonyi v. Barr, 942 F.3d 874, 875-876

(9th Cir. 2019) (Collins, J., dissenting from denial of rehearing en banc).

And among Justice Kennedy’s final opinions as a

member of this Court, he wrote separately for the express purpose of “not[ing] my concern with the way in

which the Court’s opinion in Chevron has come to be understood and applied.” Pereira v. Sessions, 138 S. Ct.

2105, 2120 (2018) (Kennedy, J., concurring) (full citation

omitted). Speaking about the issue then before the

Court, but applicable to all too many others, Justice Kennedy diagnosed perhaps the single biggest flaw in current Chevron jurisprudence—“reflexive deference”: “In

according Chevron deference * * *, some Courts of Appeals engaged in cursory analysis of the questions

whether, applying the ordinary tools of statutory construction, Congress’ intent could be discerned * * * .”

Ibid. (emphasis added). “And,” he continued, “when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory

provisions that concern the scope of its own authority, it

is more troubling still.” Ibid.

The jurists noted above, and many others, have identified the foregoing problem as lying within the judiciary.

And unsurprisingly, unchecked agencies will endorse unbounded statutory interpretations. Given the judiciary’s

19

habitual deference, “agencies have incentives [when proposing legislation to Congress] to draft statutes flexibly,

broadly, and ambiguously to trigger Chevron deference—and thus engage in self-delegation of primary interpretive authority,” and they “have further incentives

to be more aggressive in their agency statutory interpretations when they believe Chevron deference applies.”

Christopher J. Walker, Legislating in the Shadows, 165

U. Pa. L. Rev. 1377, 1419 (2017); see also id. at 1418-1419

(noting, unsurprisingly, that a majority of rule drafters

responded that “a federal agency is more aggressive in

its interpretive efforts if it is confident that Chevron deference (as opposed to Skidmore deference or de novo review) applies”).

Agencies do not shy away from responding to these

incentives and abusing the authority conferred on them

by Chevron. As Justice Thomas put it, this unfortunate

symbiosis should sound more like a klaxon than a faint

tinkling of a distant bell:

Although we hold today that EPA exceeded even

the extremely permissive limits on agency power

set by our precedents, we should be alarmed that

it felt sufficiently emboldened by those precedents

to make the bid for deference that it did here.

Michigan, 576 U.S. at 763 (Thomas, J., concurring). Others have indicated similar concerns. E.g., Talk Am., Inc.

v. Michigan Bell Tel. Co., 564 U.S. 50, 69 (2011) (Scalia,

J., concurring) (FCC “has repeatedly been rebuked in its

attempts to expand the statute beyond its text, and has

repeatedly sought new means to the same ends.”).

20

II. CURING CHEVRON REQUIRES RESTORING THE

COMMAND TO EXHAUST ALL TOOLS OF STATUTORY

CONSTRUCTION AND ALLOWING COURTS TO FIND

AMBIGUITY ONLY AS A LAST RESORT

A. Step One requires searching for statutory meaning, not verifying whether there is ambiguity

Lower courts have come to understand Chevron as

directing a search for ambiguity—and when they seek

ambiguity, they almost always find it. But Chevron’s legitimacy turns on the exact opposite premise: that courts

search for meaning. This case provides the Court a clear

opportunity to instruct lower courts that their task under

Chevron begins—and frequently should end—with employing the normal rules and tools of statutory construction to identify statutory meaning.

To search for ambiguity instead of meaning ultimately means that “if one can perceive any ambiguity in a

statute, however remote, slight or fanciful, the statute

must be pushed into the second step of Chevron analysis.” Abbott Labs. v. Young, 920 F.2d 984, 994 (D.C. Cir.

1990) (Edwards, J., dissenting). Starting the analysis by

searching for ambiguity drains Step One of most of its

significance. It ultimately means that most statutes will

be (as the Barnett & Walker study cited above confirms)

analyzed under Step Two. After all, “clever lawyers—

and clever judges—will always be capable of perceiving

some ambiguity in any statute, no matter how clearly

Congress struggles to emblazon its intentions on the face

of the statute.” Id. at 995. If the inquiry is framed as an

ambiguity-favoring nudge, any capable lawyer, including

every federal judge, will be able to deliver. “[A]ll too often, courts abdicate th[e] duty [to say what the law is] by

rushing to find statutes ambiguous, rather than performing a full interpretive analysis.” Arangure v. Whitaker,

911 F.3d 333, 336 (6th Cir. 2018) (Thapar, J.).

21

The D.C. Circuit panel below did just this when it

framed the Step One question in terms of ambiguity, not

meaning. The majority began fairly enough: “Under

Chevron, we first ask whether ‘Congress has directly

spoken to the precise question at issue.’” Pet. App. 19a

(quoting Chevron, 467 U.S. at 842). But it soon betrayed

the real goal—not using every interpretive canon to discern the statute’s meaning, but trying to escape the endeavor: “[U]nder Chevron, we would need to conclude

that Congress unambiguously barred HHS from seeking

to align reimbursements with acquisition costs under

subclause (II), or that HHS’s belief that it could do was

unreasonable.” Id. at 24a. Framed that way, the majority needed only to identify a degree of ambiguity in the

statute, which is easy to do if one does not engage all

tools of construction. Having thus identified some ambiguity, the majority then declined to resolve it, holding

instead that the ambiguity sufficed to move the analysis

to Step Two. Id. at 27a (“Rather, when competing readings of a statute would each occasion their own notable

superfluity, that manifests the kind of statutory ambiguity that Chevron permits the agency to weigh and resolve.”).

If a court as intimately intertwined with administrative law as the D.C. Circuit cannot properly apply Chevron, this Court should use this case to provide guidance

to it and other lower courts. The default presumption

should be the same in this area of the law as any other—

that courts will interpret statutory text. Courts are wellequipped—indeed, compelled—to perform that task.

Interpreting legal texts is perhaps the judiciary’s core

constitutional function. Michigan, 576 U.S. at 761-762

(Thomas, J., concurring). Deciding whether a party’s “interpretation of the statute is correct * * * is a familiar judicial exercise.” Zivotofsky v. Clinton, 566 U.S. 189, 196

(2012). Judges are “trained” to look for “the best read-

22

ing” of legal texts—including of complicated legal texts.

Kavanaugh, supra, 129 Harv. L. Rev. at 2153-2154; see

also Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 129

(2015) (Thomas, J., concurring in the judgment)

(“[J]udges are frequently called upon to interpret the

meaning of legal texts and are able to do so even when

those texts involve technical language.”). Only if upon

completion of that familiar task a court cannot identify a

meaning should the court proceed to consider deference

to an agency’s construction. But the presumption should

be that courts can do their job and that deference should

be the exception, not the rule that it has become.

Restating Chevron’s framework in this way would engender a multitude of benefits. It would return courts to

the performance of normal judicial tasks, without making

administrative-law cases inherently distinct from other

forms of statutory construction. It would avoid the constitutionally doubtful outcomes that flow from an impulse

to defer—the concentration of non-executive powers in

administrative agencies. It would more readily satisfy

the APA’s direction that courts actually construe statutes. The restored emphasis on statutory construction

will allow the courts to concentrate their energies on developing ever more refined, principled, systematic, and

predictable approaches to construing statutory text.

That, in turn, will give Congress ever clearer guidance on

how the courts will interpret its work, which could create

the long-desired incentive for it to speak clearly (even

when what it wants is to clearly authorize a measure of

discretion for agencies). The incentive for agencies to

regulate expansively apart from statutory authorization

will be reversed, and regulations that aggressively claim

power to broadly depart from statutory directions should

decrease. Similarly, political pressure on agencies to flipflop on statutory interpretations following elections will

be less effective—the focus will be restored to changing

23

laws directly, which is always permissible, rather than

changing them via “interpretation,” which undermines

the integrity of the law.

All of these positive consequences will enhance the

rule of law from the perspective of regulated entities.

They will be able to rely on statutory text, regulations

that fairly enforce that text, and a judiciary that will give

them a fair chance if agency regulations nonetheless depart from statutory text.

B. As it did in Kisor for Auer deference, this Court

should now reorient Chevron’s Step One analysis

Returning courts to the business of statutory interpretation in administrative-law cases requires only giving

a greater emphasis to Chevron’s own teaching—one to

which this Court has already given new emphasis in the

related context of Auer deference.

First, Chevron itself is premised on a court’s obligation to first determine “whether Congress has directly

spoken to the precise question at issue” in the statute authorizing the agency to act. 467 U.S. at 842. “If the intent of Congress is clear, that is the end of the matter; for

the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at

842-843. Thus, while courts have often misunderstood

the task of determining “whether Congress has directly

spoken” as authorizing a search for ambiguity, Chevron’s

first step actually requires identifying statutory meaning

if there is any way to do so. And to ascertain the meaning of the statute and thereby whether “Congress had an

intention on the precise question at issue,” the court

“employ[s] traditional tools of statutory construction.”

Id. at 843 n.9. Thus, “whether Congress has directly

spoken to the precise question at issue” cannot be answered in the negative until all the “traditional tools of

statutory construction” are deployed but without results.

24

Id. at 842 & 843 n.9.

Second, this Court recently clarified in Kisor what it

means for a court to “employ traditional tools of statutory construction” in the context of Auer deference for

agency interpretations of ambiguous regulations. Given

the “mixed messages” this Court had previously sent regarding how searching review under Auer should be, the

Court “[took] the opportunity to restate, and somewhat

expand on,” the principles guiding construction of agency

regulations. Kisor, 139 S. Ct. at 2414.

In Kisor, this Court emphasized that “deference is

not the answer to every question of interpreting an agency’s rules. Far from it.” Ibid. Instead, “the possibility of

deference can arise only if a regulation is genuinely ambiguous,” and a rule may be categorized as “genuinely

ambiguous” only “after a court has resorted to all the

standard tools of interpretation.” Ibid. (emphasis added).

This teaching is drawn directly from the (all-too-often

ignored) logic of Chevron itself—and from basic logic in

general. After all, “[i]f uncertainty does not exist, there

is no plausible reason for deference. The regulation then

just means what it means—and the court must give it effect, as the court would any law.” Id. at 2415. “[I]f the

law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business

deferring to any other reading, no matter how much the

agency insists it would make more sense.” Ibid. To underscore the point in the Auer-deference context, the

Court reiterated the point: “[B]efore concluding that a

rule is genuinely ambiguous, a court must exhaust all the

‘traditional tools’ of construction.” Ibid. (quoting Chevron, 467 U.S. at 843 n.9) (emphasis added).

There is an enormous difference between (1) seeking

(and typically finding) some indicium of ambiguity and

then terminating the statutory-construction exercise and

(2) refusing to acknowledge ambiguity until employing all

25

statutory-construction tools. The difference is flipping

the default presumption. A court that understands its

quest as one to find meaning (rather than to confirm the

absence of discernible meaning) will often be able to provide a clear answer as to the meaning of the legal text:

“[H]ard interpretive conundrums, even relating to complex rules, can often be solved.” Ibid. Therefore, “a

court cannot wave the ambiguity flag just because it

found the regulation impenetrable on first read.” Ibid.

(emphasis added).

In Kisor, this Court noted that Chevron had adopted

the same approach for ambiguous statutes, and Kisor in

fact expressly drew on Chevron’s analysis to inform the

application of Auer deference to supposedly ambiguous

regulations. Ibid. It would be incongruous to do anything less now than to clarify that Kisor’s Chevroninspired holding fully applies in the context of Chevron

itself. That message should not merely be clarified and

repeated—it should be amplified.

In addition to Kisor, this Court has recently reiterated that Chevron deference is “not due unless a ‘court,

employing traditional tools of statutory construction,’ is

left with an unresolved ambiguity.” Epic Systems Corp.

v. Lewis, 138 S. Ct. 1612, 1630 (2018) (quoting Chevron,

467 U.S. at 843 n.9); SAS Inst., Inc. v. Iancu, 138 S. Ct.

1348, 1358 (2018) (same). Just last term, this Court, resolving a dispute between the Government and a private

party over a statute’s meaning, derided the Government

when it “abandon[ed] any pretense of interpreting the

statute’s terms and retreat[ed] to policy arguments and

pleas for deference.” Niz-Chavez v. Garland, 141 S. Ct.

1474, 1485 (2021). Notably, both the majority and dissent

resolved that case without even a whisper of Chevron

deference. And just days ago, this Court resolved a question of how far a seemingly broad statute reaches without

labeling the language as ambiguous. Alabama Ass’n of

26

Realtors v. Dep’t of Health & Human Servs., 594 U.S. __,

No. 21A23, 2021 WL 3783142, at *3 (Aug. 26, 2021)

(“Reading both sentences together, rather than the first

in isolation, it is a stretch to maintain that § 361(a) gives

the CDC the authority to impose this eviction moratorium. Even if the text were ambiguous, the sheer scope of

the CDC's claimed authority under § 361(a) would counsel against the Government’s interpretation.”) (emphasis

added). The present case provides this Court with the

opportunity to crystallize for the lower courts the Chevron jurisprudence it has implicitly developed over the

last few terms.

C. Emphasizing meaning rather than ambiguity

at Step One will dramatically reduce and confine Chevron’s harms

A reformed Step One analysis is a massive improvement on nearly every level—but not a panacea, at least in

the sense that it cannot provide a formula to ensure that

all cases will be correctly decided at once. Hard cases

will always be with us, and it is inevitable that different

courts examining the same statute will sometimes reach

different conclusions as to its Step One meaning. After

all, this Court divided last term in Niz-Chavez over the

meaning of the statute in question, but the Court unanimously agreed that the inquiry should stop at Step One.

Nonetheless, the risk of such a division is a far narrower

risk than what Chevron as currently practiced entails—a

nearly boundless realm of potential meanings of any

statute.

Other examples illustrate the point. Recently, two

courts of appeals examining EPA’s implementation of the

permitting process established by Title V of the Clean

Air Act reached different conclusions on the agency’s interpretation—but unlike in many cases, both searched

for meaning rather than ambiguity. Envtl. Integrity

27

Project v. EPA, 969 F.3d 529, 539-541 (5th Cir. 2020); Sierra Club v. EPA, 964 F.3d 882, 885 (10th Cir. 2020).

Both grounded their analysis at Step One and avoided

affording reflexive deference. Envtl. Integrity Project,

969 F.3d at 539-541 (finding the agency’s interpretation

“persuasive” under Skidmore v. Swift & Co., 323 U.S. 134

(1944)); Sierra Club, 964 F.3d at 891 (finding plain meaning in text). If disputes like this one are more regularly

fought on Step One terrain, it would mark a substantial

improvement for regulated parties, who could focus their

arguments on textual matters and would therefore likely

see far fewer disputes over time.

After all, if courts focus their energy on Step One,

every case potentially involving Chevron will primarily be

a standard statutory-construction case just as in every

other area of the law. Whether the court is construing a

statute that an agency administers, a section of the federal criminal code, or a portion of a civil-rights law, all

cases involving a federal statute will implicate the same

overriding question: what do its words mean? No statute

will be entitled to special rules or exceptions, and all will

face the same textual analysis.

There is reason for great optimism about the ultimate

outcome of such a reorientation of administrative law.

First, the past few decades have seen extraordinary progress—progress unimaginable in 1984, when Chevron

was announced—in the federal judiciary’s ability to fairly, consistently, and rigorously interpret statutory texts.

Each year brings greater clarity and consensus about

how to do that job. An increased focus on statutory construction in administrative law will further accelerate the

development of consistent and reliable methods for interpreting all texts.

Second, as courts commit themselves to systematically searching for the meaning of statutes, Congress will be

increasingly encouraged (and able) to draft statutes in

28

ways that generate predictable results. A reinvigorated

Step One analysis will restore Congress’s control over

the writing of laws. Its say will matter like never before,

and if and when Congress truly wishes to allow a range of

regulatory options, it will be encouraged to do so with

clear language. Ambiguity will not be an accidental oversight but an intentional grant of options to the agency.

And in those instances where Congress has deliberately

chosen the agency to resolve the question at hand, then

deference to the agency’s choice will not only be appropriate but obligatory.

Third, a reformed Step One analysis could still result

in finding some statutes ambiguous (and not necessarily

because Congress expressly intended such “ambiguity”).

Such scenarios should become dramatically rarer, but

when they arise, Step One will still have a substantial role

to play by demarcating the range of permissible options

from which the agency may choose. Under current practice, a finding of ambiguity often grants the agency free

reign to define the statute with only minimal Step Two

oversight. But under an approach where the court must

work toward identifying the meaning of the statute, the

range of permissible interpretations will be constrained.

For example, it is one thing to say that an adjustment authority may be used at the agency’s reasonable discretion, but wholly another to specify in what specific instances such discretion can or cannot be invoked. By reducing the range of options for the agency, regulated

parties will have greater certainty as to how they may be

regulated even if some ambiguity remains.9

Another benefit of construing statutes at Step One is the concomitant decrease in how often agencies can invoke National Cable &

Telecommunications Association v. Brand X Internet Services, 545

U.S. 967 (2005), to overrule a court’s prior construction of a statute,

which upsets regulated parties’ settled expectations. See id. at 982

9

29

Fourth, as a practical matter, the scope of possible

outcomes will be reduced by the fact that agencies will

simply avoid testing the limits of their authority. Pushing Congress’s boundaries will not be met with reflexive

deference at Step Two but instead a clear-eyed analysis

of legal text.

In sum, a rigorous Step One process that presumes

the statute’s meaning is clear and disfavors a finding of

ambiguity will restore the separation of powers: Congress makes the law and sets policy; courts interpret that

law and give it the meaning Congress intended; and

agencies enforce that law and promulgate regulations,

without discretion to choose policy unless the only reading of a statute is one in which agencies are left to choose

among a permissible range.

CONCLUSION

This Court should reverse the judgment below and enforce meaningful limits on the Chevron doctrine by reiterating—unambiguously—that lower courts must exhaust all the traditional tools of statutory construction

before concluding that a statute is ambiguous.

(while agencies may reinterpret ambiguous statutes, they have no

such power “if the prior * * * [judicial] construction follow[ed] from

the unambiguous terms of the statute”).

30

Respectfully submitted.

EVAN A. YOUNG

Counsel of Record

BAKER BOTTS L.L.P.

98 San Jacinto Boulevard

Suite 1500

Austin, Texas 78701-4078

(512) 322-2500

evan.young@bakerbotts.com

Counsel for Amici Curiae

CHRISTOPHER E. TUTUNJIAN

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, Texas 77002-4995

(713) 229-1234

(additional counsel listed on next page)

September 2021

31

AMY CHAI

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th St. NW

Washington, D.C. 20005

(202) 266-8232

Counsel for Amicus Curiae

National Association of

Home Builders

KATIE SWEENEY

NATIONAL MINING

ASSOCIATION

101 Constitution Ave. NW,

Ste 500 E

Washington, D.C. 20001

(202) 463-2646

Counsel for Amicus Curiae

National Mining Association

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Ave., SW,

Ste 1000 W

Washington, D.C. 20024

(202) 406-3618

Counsel for Amicus Curiae

American Farm Bureau Federation

RICHARD MOSKOWITZ

TYLER KUBIK

AMERICAN FUEL &

PETROCHEMICAL

MANUFACTURERS

1800 M Street, NW

Suite 900 North

Washington, D.C. 20036

(202) 457-0480

Counsel for Amicus Curiae

American Fuel & Petrochemical

Manufacturers

SCOTT YAGER

NATIONAL CATTLEMEN’S

BEEF ASSOCIATION

1275 Pennsylvania Ave., NW, Ste 801

Washington, D.C. 20004

(202) 347-0228

Counsel for Amicus Curiae

National Cattlemen’s

Beef Association