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 AMICUS CURIAE THE

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA IN

SUPPORT OF NEITHER PARTY

________________

DARYL L. JOSEFFER

PAUL D. CLEMENT

ANDREW R. VARCOE

ERIN E. MURPHY

U.S. CHAMBER

Counsel of Record

LITIGATION CENTER EVELYN BLACKLOCK

1615 H Street, NW

KIRKLAND & ELLIS LLP

Washington, DC 20062 1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

erin.murphy@kirkland.com

Counsel for Amicus Curiae

September 10, 2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST ................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I.

Chevron Deference Is Subject To Critical And

Constitutionally Compelled Limitations And

Requirements....................................................... 4

A. Courts Must Exhaust All Traditional

Tools of Statutory Interpretation and

Determine Whether the Statute Is

Genuinely Ambiguous .................................. 6

B. Even If Genuine Ambiguity Remains, the

Agency’s

Interpretation

Must

Be

Reasonable .................................................. 13

II. The Court Should Restate And Reinforce Key

Limits On Chevron Deference ........................... 17

CONCLUSION ......................................................... 21

ii

TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors

v. Dep’t of Health & Hum. Servs.,

No. 21A23, 2021 WL 3783142

(U.S. Aug. 26, 2021) ............................................... 11

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998) ................................................ 16

Ashwander v. Tenn. Valley Auth.,

297 U.S. 288 (1936) .................................................. 6

AT&T Corp. v. Iowa Utils. Bd.,

525 U.S. 366 (1999) ................................................ 14

Carcieri v. Salazar,

555 U.S. 379 (2009) ................................................ 20

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

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

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................ passim

Cuomo v. Clearing House Ass’n,

557 U.S. 519 (2009) ................................................ 15

Digit. Realty Tr., Inc. v. Somers,

138 S.Ct. 767 (2018)............................................... 20

Encino Motorcars, LLC v. Navarro,

136 S.Ct. 2117 (2016)............................................. 16

Esquivel-Quintana v. Sessions,

137 S.Ct. 1562 (2017)............................................. 20

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .................................. 5, 9, 10, 20

Gonzales v. Oregon,

546 U.S. 243 (2006) .......................................... 11, 12

iii

Gundy v. United States,

139 S.Ct. 2116 (2019)........................................... 5, 9

Judulang v. Holder,

565 U.S. 42 (2011) ............................................ 15, 16

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928) ................................................ 14

King v. Burwell,

576 U.S. 473 (2015) .......................................... 11, 12

Kisor v. Wilkie,

139 S.Ct. 2400 (2019)..................................... passim

Marbury v. Madison,

5 U.S. 137 (1803)...................................................... 6

MCI Telecomms. Corp. v. AT&T,

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

Mellouli v. Lynch,

575 U.S. 798 (2015) ................................................ 20

Michigan v. EPA,

576 U.S. 743 (2015) .................................... 14, 15, 16

Mistretta v. United States,

488 U.S. 361 (1989) ................................................ 14

Motor Vehicle Mfrs. Ass’n

v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) .................................................. 16

Nat’l Cable & Telecomms. Ass’n

v. Brand X Internet Servs.,

545 U.S. 967 (2005) ................................................ 16

Paul v. United States,

140 S.Ct. 342 (2019)............................................. 5, 9

Pauley v. BethEnergy Mines, Inc.,

501 U.S. 680 (1991) .............................................. 8, 9

iv

Pereira v. Sessions,

138 S.Ct. 2105 (2018)................................... 8, 18, 19

SAS Inst., Inc. v. Iancu,

138 S.Ct. 1348 (2018)............................................... 7

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) .................................................. 7

United States v. Mead Corp.,

533 U.S. 218 (2001) .................................................. 7

Urbina v. Holder,

745 F.3d 736 (4th Cir. 2014).................................. 19

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .................................... 10, 11, 15

Valent v. Comm’r of Soc. Sec.,

918 F.3d 516 (6th Cir. 2019)............................ 19, 20

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ........................................ 5, 9, 10

Other Authorities

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts, 116 Mich. L.

Rev. 1 (2017) .......................................................... 21

The Federalist No. 78 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ..................................... 5

STATEMENT OF INTEREST1

The Chamber of Commerce of the United States

of America is the world’s largest business federation.

It represents 300,000 direct members and indirectly

represents the interests of more than 3 million

companies and professional organizations of every

size, in every economic sector, and from every region

of the country.

An important function of the Chamber is to

represent the interests of its members in matters

before the courts, Congress, and the Executive

Branch. To that end, the Chamber regularly files

amicus curiae briefs in cases that raise issues of

concern to the Nation’s business community. The

Chamber’s members have an interest in reaffirming

the duty of courts under Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), to engage in independent and robust statutory

interpretation, thus ensuring that each branch of

government stays in its respective lane and that

administrative agencies do not impose regulatory

burdens that exceed lawful bounds.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

Pursuant to Supreme Court Rule 37.3, counsel of record for all

parties have consented to this filing.

2

SUMMARY OF ARGUMENT

This case presents a much-needed opportunity to

reinforce critical and constitutionally compelled

constraints on Chevron deference. Distilled, Chevron

tells courts to defer to an agency’s interpretation of a

statute it administers if the statute is ambiguous and

the agency’s interpretation is reasonable. At its

inception, the doctrine was conceptualized as an effort

to foster respect for the Constitution’s separation of

powers, ensuring that policy decisions are left to the

politically accountable branches and leaving Congress

with room to draw on the comparative advantages and

expertise of the executive branch. But unbounded,

Chevron deference poses a triple threat to our

tripartite scheme of government. It entices Congress

to abdicate its duty to make the law. It entices the

executive to stray far beyond its duty to enforce the

law. And it entices the judiciary to abandon its duty

to say what the law is.

Cognizant of those constitutional and prudential

concerns, this Court has subjected Chevron deference

to several essential limitations and requirements.

Because a provision must be genuinely ambiguous—

not just subject to differing interpretations or difficult

to interpret—before courts can permissibly infer that

Congress intended to delegate something to an

agency, courts must use all the traditional tools of

statutory interpretation before conceding that a

statute is ambiguous.

Because questions of

considerable political and economic significance are

ordinarily the province of the lawmaking branch,

courts should not lightly infer that Congress delegated

them to the branch of government responsible for

3

executing the laws. Because Chevron deference is

rooted in the putative comparative advantages of the

executive branch, courts must assess whether the

relevant question really implicates an agency’s

expertise. And because an agency is empowered to act

only within the scope of the power that Congress

actually delegated, courts must ensure that an

agency’s interpretation falls within the bounds of the

discretion Congress gave it. Without those guardrails,

the rationales this Court has articulated for Chevron

deference dissolve, and any chance of compatibility

with the Constitution disappears.

Unfortunately, abuse of Chevron deference is all

too common. Courts far too often rush to find

ambiguity and defer to agencies when faced with

questions of statutory interpretation that are difficult,

but hardly insurmountable. The result is confusion,

rather than accountability, as the citizenry cannot

discern which branch is responsible for policies. And

agencies, for their part, are only too happy to exploit

openings to aggrandize their own powers. The Court

should take this opportunity to restate, clarify, and

reinforce the limitations and requirements on Chevron

deference that it has developed over the past 30-odd

years. Doing so would send a strong signal to the

lower courts that the proper bounds of Chevron

deference are no mere suggestions, but are

constitutionally grounded imperatives.

4

ARGUMENT

I.

Chevron Deference Is Subject To Critical

And Constitutionally Compelled Limitations

And Requirements.

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

Defense Council, Inc., 467 U.S. 837 (1984), this Court

established a basic framework to govern judicial

deference to an agency’s interpretation of a statute

that the agency administers. In the “now-canonical

formulation,” City of Arlington v. FCC, 569 U.S. 290,

296 (2013), a court reviewing an agency’s

interpretation of such a statute must proceed in two

steps. “First, applying the ordinary tools of statutory

construction, the court must determine ‘whether

Congress has directly spoken to the precise question

at issue.’” Id. (quoting Chevron, 467 U.S. at 842-43).

“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.” Chevron, 467 U.S. at 842-43. “If, however,

the court determines Congress has not directly

addressed the precise question at issue”—if, that is,

“the statute is silent or ambiguous with respect to the

specific issue”—then “the question for the court is

whether the agency’s answer is based on a permissible

construction of the statute.” Id. at 843.

Through the years, this Court has articulated

various rationales for Chevron deference that inform

its proper application. In Chevron itself, the Court

emphasized that administrative agencies may possess

comparative advantages of subject-matter expertise

and political accountability vis-à-vis courts with

respect to the statutes they administer. Chevron, 467

5

U.S. at 843-45, 865-66. In later cases, the Court

emphasized

a

“background

presumption

of

congressional intent,” Arlington, 569 U.S. at 296,

under which statutory ambiguity “constitutes an

implicit delegation from Congress to the agency to fill

in the statutory gaps,” FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 159 (2000).

Over time, the Court has also recognized that

there are important constitutional constraints on any

appropriate role for Chevron deference. Chief among

those are separation-of-powers concerns. For one

thing, Article I, §1 of the Constitution vests “[a]ll

legislative Powers herein granted … in a Congress of

the United States.” Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 472 (2001) (emphasis added). “This text

permits no delegation of those powers[.]” Id. Thus,

“Congress may not divest itself of its legislative power

by transferring that power to an executive agency.”

Gundy v. United States, 139 S.Ct. 2116, 2142 (2019)

(Gorsuch, J., dissenting); see also Paul v. United

States, 140 S.Ct. 342, 342 (2019) (statement of

Kavanaugh, J.). After all, administrative agencies

may be more politically accountable than Article III

courts, but they are no substitute for the elected

officials to whom the Framers assigned the weighty

power to “prescrib[e] the rules by which the duties and

rights of every citizen are to be regulated.” The

Federalist No. 78, at 465 (Alexander Hamilton)

(Clinton Rossiter ed., 1961). And, of course, due

respect for a coordinate branch of government compels

courts to construe statutes to avoid, rather than

exacerbate,

constitutional

concerns

like

a

nondelegation problem. See, e.g., Ashwander v. Tenn.

6

Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J.,

concurring).

Just as important, “[i]t is emphatically the

province and duty of the Judicial Department to say

what the law is” in deciding cases or controversies.

Marbury v. Madison, 5 U.S. 137, 177 (1803). Chevron

deference is not, and cannot be, a license for either the

judiciary to abdicate—or the executive to arrogate—

that constitutional duty. The Constitution therefore

demands that courts approach agency claims to

Chevron deference with a healthy dose of skepticism.

Cognizant of those animating and limiting

principles, this Court has developed important

constraints to govern and limit the scope of Chevron

deference. These constraints are no mere appendages

or suggestions; they are critical components of the

doctrine. Without them, the Court’s articulated

rationales for Chevron deference fall away, and the

doctrine’s tension with our constitutional order

becomes even more acute.

A. Courts Must Exhaust All Traditional

Tools of Statutory Interpretation and

Determine Whether the Statute Is

Genuinely Ambiguous.

1. First, and most fundamentally, any invocation

of Chevron deference must be faithful to the rule that

“[c]ourts defer to an agency’s interpretation of law

when and because Congress has conferred on the

agency interpretive authority over the question at

issue.” Arlington, 569 U.S. at 312 (Roberts, C.J.,

dissenting). Accordingly, before even considering

granting Chevron deference, courts must employ and

exhaust all the traditional tools of statutory

7

interpretation to determine whether Congress has

“directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 843.2

That does not mean reading the statutory text and

simply asking whether it is pellucidly clear. Courts

must conduct a rigorous and thorough textual

analysis, using all applicable canons and

methodologies of statutory construction, before

arriving at the conclusion that a statute is ambiguous.

As this Court recently put it, courts “owe an agency’s

interpretation of the law no deference unless, after

‘employing

traditional

tools

of

statutory

construction,’” they find themselves “unable to discern

Congress’s meaning.” SAS Inst., Inc. v. Iancu, 138

S.Ct. 1348, 1358 (2018) (quoting Chevron, 467 U.S. at

843 n.9). Courts thus may not rush to find ambiguity

and defer under Chevron. Instead, they must take

seriously their obligation to determine whether

Congress has already decided the question itself, and,

2 In addition, courts must, of course, engage with the so-called

“step zero” or threshold question whether the Chevron

framework applies at all. See United States v. Mead Corp., 533

U.S. 218, 226-27 (2001) (limiting application of Chevron

framework to circumstances where “it appears that Congress

delegated authority to the agency generally to make rules

carrying the force of law,” as through a grant of rulemaking or

adjudicative authority, “and that the agency interpretation

claiming deference was promulgated in the exercise of that

authority”). If the Chevron framework does not apply, the agency

may still be eligible for lesser Skidmore deference, depending on

“the thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements,

and all those factors which give it power to persuade, if lacking

power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944); see Mead, 533 U.S. at 227-28, 234-35.

8

if so, to “give effect to the unambiguously expressed

intent of Congress.” Chevron, 467 U.S. at 843-44.

Anything less would impermissibly abdicate the role

of the judiciary in service of impermissibly enlarging

the role of the executive.

This Court’s recent discussion of the obligation of

the courts in the related context of Auer deference is

instructive. There, the Court explained that a court

may not “wave the ambiguity flag” whenever it finds a

statutory provision “impenetrable on first read.” Kisor

v. Wilkie, 139 S.Ct. 2400, 2415 (2019). Difficult

“interpretive conundrums, even relating to complex

rules, can often be solved” at step one—and must be

solved, if they can be, using traditional tools of

statutory interpretation.

Id.

Deference is

(potentially) appropriate only “where the relevant

language, carefully considered, can yield more than

one reasonable interpretation, not where discerning

the only possible interpretation requires a taxing

inquiry.” Pauley v. BethEnergy Mines, Inc., 501 U.S.

680, 707 (1991) (Scalia, J., dissenting); cf. Pereira v.

Sessions, 138 S.Ct. 2105, 2120 (2018) (Kennedy, J.,

concurring)

(criticizing

“reflexive

deference”).

Moreover, genuine ambiguity requires more than two

possible readings of the text. It requires two genuinely

“reasonable interpretation[s].” Pauley, 501 U.S. at

707 (Scalia, J., dissenting). And rules of construction

exist to weed out interpretations that are theoretically

conceivable, but are not what Congress could

reasonably have intended. However taxing, that

inquiry is the court’s duty to undertake. And in

discharging that duty, the court “must ‘carefully

consider[]’ the text, structure, history, and purpose” of

a statute “in all the ways it would if it had no agency

9

to fall back on.” Kisor, 139 S.Ct. at 2415 (quoting

Pauley, 501 U.S. at 706 (Scalia, J., dissenting)).

“Doing so will resolve many seeming ambiguities out

of the box, without resort” to Chevron. Id. In short,

unless a statutory provision truly remains “genuinely

ambiguous” after the “legal toolkit is empty,” id., there

is no role for Chevron deference to play.

2. Because the foundational principle underlying

Chevron deference is that “Congress has conferred on

the agency interpretive authority over the question at

issue,” Arlington, 569 U.S. at 312 (Roberts, C.J.,

dissenting), the “inquiry into whether Congress has

directly spoken to the precise question at issue” must

be “shaped, at least in some measure, by the nature of

the question presented,” Brown & Williamson, 529

U.S. at 159. Courts thus must particularly “hesitate”

before concluding that Congress has implicitly

delegated to administrative agencies authority to

resolve questions of great “economic and political

significance.” Id. at 159-60.

That “major questions” doctrine not only makes

good practical sense as a rule of construction, but

serves a critical constitutional function. It is “highly

unlikely that Congress would leave” issues of such

magnitude to the discretion of the executive branch;

for Congress to do so would raise grave nondelegation

concerns. Whitman, 531 U.S. at 468; see also Gundy,

139 S.Ct. at 2142 (Gorsuch, J., dissenting); Paul, 140

S.Ct. at 342 (statement of Kavanaugh, J.); cf.

Whitman, 531 U.S. at 472-73 (rejecting notion that “an

agency can cure an unlawful delegation of legislative

power by adopting in its discretion a limiting

construction of the statute” because “[w]hether the

10

statute delegates legislative power is a question for

the courts, and an agency’s voluntary self-denial has

no bearing upon the answer”). Due respect for a

coordinate branch of government therefore demands

appreciation of the reality that Congress “does not

alter the fundamental details of a regulatory scheme

in vague terms or ancillary provisions—it does not,

one might say, hide elephants in mouseholes.”

Whitman, 531 U.S. at 468.

For example, when EPA claimed the power under

the Clean Air Act to regulate greenhouse gases in a

way that “would bring about an enormous and

transformative expansion in EPA’s regulatory

authority,” this Court explained that it expects

Congress to “speak clearly” if it wishes to assign

decisions of such vast economic and political

significance to agency discretion. Util. Air Regul. Grp.

v. EPA (UARG), 573 U.S. 302, 324 (2014). Likewise,

when the FDA asserted a novel interpretation of the

Food, Drug, and Cosmetic Act that would have

empowered (or even compelled) it to prohibit tobacco

products, the Court concluded that Congress had

“directly spoken to the question at issue and precluded

the FDA from regulating tobacco products” in part

because the Court was “confident that Congress could

not have intended to delegate a decision of such

economic and political significance to an agency in so

cryptic a fashion.” Brown & Williamson, 529 U.S. at

160-61.

Those decisions are hardly outliers. Time and

again, this Court has approached claims of

extravagant agency authority “with a measure of

skepticism.” UARG, 573 U.S. at 324; see, e.g., King v.

11

Burwell, 576 U.S. 473, 485-86 (2015) (“[H]ad Congress

wished to assign” to IRS the power to resolve a dispute

over “billions of dollars” in tax credits “affecting the

price of health insurance for millions of people,” “it

surely would have done so expressly.”); Gonzales v.

Oregon, 546 U.S. 243, 267 (2006) (“The idea that

Congress gave the Attorney General such broad and

unusual authority through an implicit delegation in

the [Controlled Substances Act]’s registration

provision is not sustainable.”); MCI Telecomms. Corp.

v. AT&T, 512 U.S. 218, 231 (1994) (“It is highly

unlikely that Congress would leave the determination

of whether an industry will be entirely, or even

substantially, rate-regulated to agency discretion—

and even more unlikely that it would achieve that

through such a subtle device as permission to ‘modify’

rate-filing requirements.”); Ala. Ass’n of Realtors v.

Dep’t of Health & Hum. Servs., No. 21A23, 2021 WL

3783142, at *3 (U.S. Aug. 26, 2021) (observing that

“sheer scope” of CDC’s claimed authority under Public

Health Service Act to order eviction moratorium

“would counsel against” embracing its interpretation).

As these and other decisions reflect, when “an

agency claims to discover in a long-extant statute an

unheralded power to regulate ‘a significant portion of

the American economy,’” or proffers a statutory

interpretation that “would bring about an enormous

and transformative expansion” of its authority,

ambiguity is not enough; only “clear congressional

authorization” to the agency to exercise such a

substantial power will suffice. UARG, 573 U.S. at 32324.

12

3. The same nondelegation concerns undergirding

the major questions doctrine likewise caution against

finding a delegation unless a question “in some way

implicate[s the agency’s] substantive expertise.”

Kisor, 139 S.Ct. at 2417. An agency’s specialized

knowledge and experience “largely account for the

presumption that Congress delegates interpretive

lawmaking power to the agency.”

Id. (citation

omitted). But that “basis for deference ebbs when

‘[t]he subject matter of the [dispute is] distan[t] from

the agency’s ordinary’ duties or ‘fall[s] within the

scope of another agency’s authority.” Id. (quoting

Arlington, 569 U.S. at 309 (opinion of Breyer, J.))

(alterations in original).

So, too, does any

constitutional justification for deference. After all, if

a question does not call for factual findings or any sort

of agency expertise, then it is difficult to see why

Congress would delegate the matter to the branch that

is supposed to enforce the laws, not make them.

Applying that principle, this Court found it

“especially unlikely” that Congress would have

delegated interpretive authority over a provision of

the Affordable Care Act to the IRS, “which has no

expertise in crafting health insurance policy.” King,

576 U.S. at 486. Likewise, in a case involving the

Controlled

Substances

Act,

which

divides

implementation authority between the Attorney

General and the Secretary of Health and Human

Services, the Court concluded that the presumption of

expertise underlying Chevron “works against a

conclusion that the Attorney General has authority to

make quintessentially medical judgments” about

drugs used in physician-assisted suicide. Gonzales,

546 U.S. at 266-67. As these and other cases reflect,

13

unless an interpretive question implicates an agency’s

“nuanced understanding” of a statute it administers—

such as a question about the meaning of a technical

term or some other issue demanding policy expertise,

Kisor, 139 S.Ct. at 2417—courts should be particularly

loath to conclude that Congress intended to assign it

to an agency.

B. Even If Genuine Ambiguity Remains, the

Agency’s

Interpretation

Must

Be

Reasonable.

1. Carefully cabining the second step of the

Chevron inquiry is just as critical as limiting the first.

If genuine ambiguity remains after the court has

exhausted the traditional tools of statutory

interpretation, the court still may not defer to the

agency’s legal interpretation unless it falls “within the

bounds of reasonable interpretation.” Arlington, 569

U.S. at 296 (emphasis added); see Chevron, 467 U.S.

at 844-45. In other words, if a statute is genuinely

ambiguous in the sense that it is susceptible to two

different reasonable interpretations, the agency may

choose one or the other, not some third unreasonable

alternative. To merit Chevron deference, the agency’s

legal interpretation must “come within the zone of

ambiguity the court has identified after employing all

its interpretive tools.” Kisor, 139 S.Ct. at 2416 (citing

Arlington, 569 U.S. at 296). As the Court recently

emphasized in the similar context of Auer deference,

“serious application” of the traditional tools of

statutory interpretation “therefore has use even

when” genuine ambiguity remains, because the “text,

structure, history, and so forth at least establish the

outer bounds of permissible interpretation.” Id.

14

Here too, that constraint serves an important

constitutional function. This Court has concluded that

if Congress wants to delegate something to an agency,

it must at the very least “‘lay down by legislative act

an intelligible principle to which the person or body

authorized to [exercise the delegated authority] is

directed to conform.’” Mistretta v. United States, 488

U.S. 361, 372 (1989) (quoting J.W. Hampton, Jr. & Co.

v. United States, 276 U.S. 394, 409 (1928)) (brackets

in original). Otherwise, Congress is not delegating,

but abdicating. It is equally critical, then, that courts

keep agencies within the guardrails that Congress

established to cabin the scope of their discretion, for

failure to do so risks converting permissible

delegations into unconstitutional ones.

Like the first step of the inquiry, this aspect of the

second step has real teeth: It “is a requirement an

agency can fail,” Kisor, 139 S.Ct. at 2416—and

agencies have. In AT&T Corp. v. Iowa Utilities Board,

525 U.S. 366 (1999), for example, this Court found

provisions of the 1996 Telecommunications Act

governing incumbent sharing of network facilities “a

model of ambiguity.” Id. at 397. But the Court

nonetheless refused to defer to the FCC’s

interpretation of the statute because it was not a

reasonable reading—it essentially read the relevant

“necessary and impair” standard out of the statute by

requiring blanket access to network facilities. See id.

at 387-92. Likewise, in Michigan v. EPA, 576 U.S. 743

(2015), the Court acknowledged the “capaciousness” of

the “appropriate and necessary” standard governing

EPA’s authority to regulate power plants under the

hazardous-air-pollutants program of the Clean Air

Act. Id. at 751-52. Yet the Court concluded that EPA

15

“strayed far beyond” the bounds of reasonable

interpretation when it read the statute to mean it

could ignore costs entirely when deciding whether

regulation was appropriate. Id. at 751-55; see also,

e.g., UARG, 573 U.S. at 320-23 (rejecting EPA’s

“greenhouse-gas-inclusive interpretation” of the term

“air pollutant” because it was incompatible with the

statutory scheme as a whole and thus strayed beyond

the bounds of reasonable interpretation).

Put simply, ambiguity is not license. While an

agency “can give authoritative meaning to the statute

within the bounds of [] uncertainty,” “the presence of

some uncertainty does not expand Chevron deference

to cover virtually any interpretation” of the statute.

Cuomo v. Clearing House Ass’n, 557 U.S. 519, 525

(2009). The agency must stay within the bounds of

reasonable interpretation—within the scope of any

statutory ambiguity that it is clear Congress left after

exhausting all the traditional tools of interpretation.

If an agency’s legal interpretation strays outside the

zone of ambiguity a court has identified, then neither

the agency nor the court has any business resorting to

Chevron deference.

2. Finally, the agency’s choice among permissible

interpretations must of course be both reasonable and

reasonably explained. This requirement is sometimes

conceived of as an aspect of Chevron step two,

sometimes as a component of arbitrary-and-capricious

review of the agency’s discretion under APA

§706(2)(A). Compare, e.g., Judulang v. Holder, 565

U.S. 42, 52 n.7 (2011), with Michigan, 576 U.S. at 750,

752. Either way, it is another critical limitation on the

agency’s assertion of interpretive authority. “Not only

16

must an agency’s decreed result be within the scope of

its lawful authority, but the process by which it

reaches that result must be logical and rational.”

Michigan, 576 U.S. at 750 (quoting Allentown Mack

Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)).

For example, an agency must adequately explain

why it has chosen a given interpretation within the

scope of any statutory ambiguity—regardless of

whether it is adopting a new interpretation or

changing an old one. Nat’l Cable & Telecomms. Ass’n

v. Brand X Internet Servs., 545 U.S. 967, 980-85, 9971002 (2005); Chevron, 467 U.S. at 863-64; see also

Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117,

2126 (2016). Courts must ensure, moreover, that the

agency’s choice is “based on a consideration of the

relevant factors” and does not reflect a “clear error of

judgment.” Judulang, 565 U.S. at 53 (quoting Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)). Again, this requirement has

real teeth: Agencies can and do flunk the test. See

Michigan, 576 U.S. at 751-53; Encino Motorcars, 136

S.Ct. at 2126-27.

*

*

*

If Chevron deference is to continue to play a role

in assessing the legality of agency action, then the

doctrine must remain sufficiently cabined to ensure

that it does not become a license for any of the

branches to abdicate, abrogate, or arrogate the roles

the Constitution assigns. Each of Chevron’s two steps

includes significant limitations and requirements that

play a critical part in safeguarding the separation of

powers, and that reflect the doctrine’s foundational

rationales of agency expertise, political accountability,

17

and congressional delegation. Courts must enforce

those limitations and requirements to ensure that

each branch of government stays within its proper

bounds. Otherwise, any constitutionally permissible

justification for Chevron deference falls away.

II. The Court Should Restate And Reinforce

Key Limits On Chevron Deference.

In Kisor v. Wilkie, this Court recently restated,

clarified, and reinforced important limits on Auer

deference, the doctrine governing judicial review of

agency interpretations of their own regulations. See

139 S.Ct. 2400. Although this case does not present

the question whether the Court should overrule

Chevron, it does present an opportunity for the Court

to reinforce limits on Chevron deference that are akin

to the limits articulated in Kisor.3

As with Auer deference, Chevron deference is a

powerful tool that not only can be abused, but can

raise grave constitutional concerns, particularly when

courts fail to take its requirements and limitations

seriously. Yet lower courts are far too often far too

quick to find statutory provisions ambiguous and to

defer reflexively to agency resolutions of tough legal

questions, treating Chevron as more of a pass-go card

than a genuine constraint on agency power.

Take, for instance, the collection of decisions that

led to this Court’s decision in Pereira v. Sessions. That

3 The Chamber takes no position in this brief on who has the

better of the statutory interpretation arguments in this case, or

on whether HHS’s interpretation of the Medicare statute passes

muster under Chevron. The Chamber’s position in this brief is

limited to urging the Court to require lower courts, including the

D.C. Circuit, to apply Chevron rigorously.

18

case presented the “narrow question” whether a

document that was labeled “notice to appear,” but that

failed to specify either the time or place of removal

proceedings, was sufficient to trigger the “stop-time

rule” under §1229b(d)(1)(A) of the Illegal Immigration

Reform and Immigrant Responsibility Act. 138 S.Ct.

at 2109-10. The relevant statutory provision specified

“several required pieces of information,” including the

time and place of removal proceedings, that a written

notice must include to qualify as a “notice to appear.”

Id. at 2109. And until the administering agency—the

Board of Immigration Appeals (BIA)—weighed in, the

courts of appeals that encountered the question

“concluded or assumed that the notice necessary to

trigger the stop-time rule” was not “‘perfected’ until

the immigrant received all the information listed” in

the statute. Id. at 2120 (Kennedy, J., concurring).

Yet that “emerging consensus abruptly dissolved”

after the BIA “reached a contrary interpretation” of

the statute. Id. Despite the fact that the BIA’s

interpretation found “little support in the statute’s

text,” six courts of appeals concluded that the statute

was “ambiguous” and that the BIA’s interpretation

was reasonable. Id. (collecting cases). Rather than

take the limits of Chevron doctrine seriously, those

courts of appeals practiced “reflexive deference” to the

agency, engaging in only “cursory analysis of the

questions whether, applying the ordinary tools of

statutory construction, Congress’ intent could be

discerned, and whether the BIA’s interpretation was

reasonable.” Id. (citations omitted). In one case, for

example, the court of appeals simply “stated, without

any further elaboration,” that it agreed with the BIA

that the statute was ambiguous and that the BIA’s

19

interpretation was reasonable “for the reasons the

BIA gave.” Id. at 2120 (quoting Urbina v. Holder, 745

F.3d 736, 740 (4th Cir. 2014)). That analysis was far

closer to “an abdication of the Judiciary’s proper role

in interpreting federal statutes,” id., than to a serious

effort to abide by the guardrails this Court has put on

Chevron deference.

In another recent example, the Sixth Circuit

deferred to an interpretation of the Social Security Act

(SSA) that presented “almost a test case for how far an

agency can go” in claiming Chevron deference. Valent

v. Comm’r of Soc. Sec., 918 F.3d 516, 528 (6th Cir.

2019) (Kethledge, J., dissenting). That case concerned

whether the SSA authorized the Social Security

Administration to sanction a recipient of disability

benefits for her failure to report her “work activity.”

Id. at 525. The relevant provisions of the SSA stated

that work activity could not be used as evidence that

a beneficiary was no longer disabled, but also stated

that benefits could be terminated if the beneficiary

had earnings that exceeded an amount that

represented substantial gainful activity. Id. at 526.

The question for the court was whether those

provisions allowed the agency to consider the

beneficiary’s work activity when determining whether

she remained entitled to benefits. Id.

The panel majority determined that the relevant

provisions of the SSA “appear[ed] to conflict with one

another,” which the panel concluded “create[d] an

ambiguity as to whether” the agency could consider

work activity that generated earnings. Id. at 520

(majority op.). The majority then deferred to the

agency’s resolution of the supposed ambiguity, which

20

(conveniently) allowed the agency to impose sanctions.

As the dissent explained, however, the majority far too

quickly equated an apparent statutory conflict with

“ambiguity.” Id. at 527 (Kethledge, J., dissenting).

Rather than “use all the tools of statutory

construction, if at all possible, to interpret the statute

as ‘an harmonious whole’”—the dissent offered several

possible harmonizations—the panel simply folded in

the face of a difficult interpretive question and

“allow[ed] the Executive to assume the judicial role.”

Id. (quoting Brown & Williamson, 529 U.S. at 133).

Other examples abound. Indeed, in recent years,

this Court has repeatedly reversed lower court

decisions that were too quick to apply Chevron

deference to agency legal interpretations. More often

than not, the Court concluded that the relevant

statute unambiguously foreclosed the agency’s

interpretation at step one. See, e.g., Digit. Realty Tr.,

Inc. v. Somers, 138 S.Ct. 767, 781-82 (2018) (finding

statutory definition of “whistleblower” “clear and

conclusive” and reversing panel decision that had

deferred under Chevron); Esquivel-Quintana v.

Sessions, 137 S.Ct. 1562, 1572 (2017) (reversing panel

decision that deferred to BIA and concluding that “the

statute, read in context, unambiguously forecloses the

Board’s interpretation”); Mellouli v. Lynch, 575 U.S.

798, 810 (2015) (reversing panel decision and

explaining that agency’s interpretation was “owed no

deference” because it made “scant sense”); Carcieri v.

Salazar, 555 U.S. 379, 387-89 (2009) (finding ordinary

meaning of statutory term “now” clear in context and

reversing panel decision that had deferred to agency’s

reading under Chevron).

Those decisions are

consistent with empirical evidence that lower courts

21

defer far more often than this Court to agency

interpretations under Chevron, leading some

commentators to suggest that “Chevron Regular” is far

less rigorous than “Chevron Supreme.” Kent Barnett

& Christopher J. Walker, Chevron in the Circuit

Courts, 116 Mich. L. Rev. 1, 6 (2017).

In short, misuse of Chevron is all too common in

the lower courts, and it is likely to continue absent the

clearest and strongest of messages from this Court.

The Court should therefore step in to make clear that

the continued vitality of Chevron deference depends

on taking seriously the constitutional and prudential

constraints that cabin its scope.

CONCLUSION

For the foregoing reasons, this Court should

counteract the too-common abuse of Chevron in the

lower courts by reinforcing key limits on the doctrine.

Respectfully submitted,

DARYL L. JOSEFFER

ANDREW R. VARCOE

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

PAUL D. CLEMENT

ERIN E. MURPHY

Counsel of Record

EVELYN BLACKLOCK

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

erin.murphy@kirkland.com

Counsel for Amicus Curiae

September 10, 2021