Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

In the Supreme Court of the United States

__________

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

v.

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS SECRETARY OF COMMERCE, ET AL.,

Respondents.

__________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the District of Columbia Circuit

__________

BRIEF OF THE CATO INSTITUTE AND LIBERTY JUSTICE CENTER AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

__________

Jacob Huebert

Reilly Stephens

LIBERTY JUSTICE CENTER

440 N. Wells Street Suite 200

Chicago, Illinois 60654

(312) 637-2280

jhuebert@libertyjusticecenter.org

December 9, 2022

Clark M. Neily III

Counsel of Record

Thomas A. Berry

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

i

QUESTION PRESENTED

Whether Chevron v. NRDC, 467 U.S. 837 (1984),

should be overruled.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

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

ARGUMENT ................................................................ 5

I. CHEVRON IS AHISTORICAL AND

SHOULD BE OVERRULED ............................ 5

A. Contemporaneous and Customary Canons

of Interpretation ......................................... 5

B. The Mandamus Cases ................................ 9

C. Factual Deference ..................................... 12

D. The New Deal Era of Deference ............... 13

II. THE CIRCUIT COURTS HAVE NOT

FOLLOWED THIS COURT’S

TRAJECTORY IN ABANDONING

CHEVRON ...................................................... 16

A. This Court Has Not Deferred Under

Chevron in Six Years ................................ 16

B. The Lower Courts Still Apply Chevron

Regularly ................................................... 19

CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES

Cases

Am. Hosp. Assoc. v. Becerra, 142 S. Ct. 1896

(2022) ................................................................ 17, 18

Bates & Guild Co. v. Payne, 194 U.S. 106

(1904) ................................................................ 12, 13

Becerra v. Empire Health Found., 142 S. Ct.

2354 (2022) ............................................................. 18

Buffington v. McDonough, No. 21–972, slip op.

(U.S. Nov. 7, 2022) ............................................. 2, 19

Chevron v. Nat. Res. Def. Council, 467 U.S. 837

(1984) ........................................................................ 2

Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261

(2016) ...................................................................... 16

Decatur v. Paulding, 39 U.S. (14 Pet.) 497

(1840) ................................................................ 10, 11

Edwards’ Lessee v. Darby, 25 U.S. (12 Wheat.)

206 (1827) ................................................................. 7

Gray v. Powell, 314 U.S. 402 (1941) .................... 13, 14

HollyFrontier Cheyenne Ref., LLC v.

Renewable Fuels Ass’n, 141 S. Ct. 2172

(2021) ...................................................................... 16

Johnson v. Guzman Chavez, 141 S. Ct. 2271

(2021) ...................................................................... 16

Johnson v. Towley, 80 U.S. (13 Wall.) 72 (1871)

................................................................................ 12

Kendall v. United States ex rel. Stokes, 37 U.S.

(12 Pet.) 524 (1838) ................................................ 10

King v. Burwell, 576 U.S. 473 (2015) .................. 16, 19

iv

Little Sisters of the Poor v. Pennsylvania, 140

S. Ct. 2367 (2020) ................................................... 16

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) ...................................................................... 10

Merritt v. Cameron, 137 U.S. 542 (1890) ................ 7, 8

Michigan v. E.P.A., 576 U.S. 743 (2015) ......... 3, 16, 19

Murray’s Lessee v. Hoboken Land &

Improvement Co., 59 U.S. (18 How.) 272

(1855) ...................................................................... 12

NLRB v. Hearst Pub., 322 U.S. 111 (1944) ......... 13, 14

Schell v. Fauché, 138 U.S. 562 (1891) ......................... 8

Silberschein v. United States, 266 U.S. 221

(1924) ...................................................................... 13

Skidmore v. Swift & Co., 323 U.S. 134 (1944) .... 13, 15

Stevens v. Duckworth, 145 Engl. Rep. 486

(1664) ........................................................................ 6

The “City of Panama,” 101 U.S. 453 (1879) ................ 8

United States ex rel. Carrick v. Lamar, 116

U.S. 423 (1886) ....................................................... 11

United States ex rel. Dunlap v. Black, 128 U.S.

40 (1888) ................................................................. 11

United States v. Haley, 160 U.S. 136 (1895) ............... 8

United States v. Hill, 120 U.S. 169 (1887) .................. 9

United States v. Mead Corp., 533 U.S. 218

(2001) ............................................................ 9, 16, 19

United States v. Midwest Oil Co., 236 U.S. 459

(1915) ........................................................................ 9

v

Statutes

16 U.S.C. §1853 (1996) ................................................ 2

Jurisdiction and Removal Act of 1875, Ch. 137,

§ 1, 18 Stat. 470 (1875) .......................................... 12

The Interstate Commerce Act, Ch. 104, § 14,

24 Stat. 384 (1887) ................................................. 12

Regulations

85 Fed. Reg. 7,414 (Feb. 7, 2020) ................................ 2

Other Authorities

2 Annals of Cong. (1791).............................................. 7

2 Fortunatus Dwarris, A General Treatise on

Statutes (2d ed. 1848) ............................................... 6

52 Am. Jur. 2d Mandamus § 403 .............................. 10

A

Discourse Upon the Exposicion and

Understandinge of Statutes with Sir Thomas

Egerton’s Additions (Samuel E. Thorne ed.,

1942) ......................................................................... 6

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation, 126

Yale L.J. 908 (2017) ....................................... passim

Ann Woolhandler, Judicial Deference to

Administrative

Action—A

Revisionist

History, 43 Admin. L. Rev. 197 (1991) ............ 10, 12

Brett

Kavanaugh,

Fixing

Statutory

Interpretation, 129 Harv. L. Rev. 2118

(2016) ................................................................ 18, 22

vi

Brian R. Stimson, et al., Pending Supreme

Court Decision in AHA v. Becerra May be

Felt Well Beyond the Healthcare Industry, 12

Nat. L. Rev. 46 (Feb. 15, 2022) .............................. 17

Charles J. Cooper, The Flaws of Chevron

Deference, 21 Tex. Rev. L. & Pol’y 307 (2016)

.................................................................................. 3

Craig Green, Chevron Debates and the

Constitutional

Transformation

of

Administrative Law, 88 Geo. Wash. L. Rev.

654 (2020) ......................................................... 5, 7, 9

Douglas H. Ginsburg & Steven Menashi, Our

Illiberal Administrative Law, 10 NYU J.L. &

Liberty 475 (2016) .................................................... 3

Eli Nachmany, SCOTUS Faces a Chevron

Decision Tree in American Hospital

Association v. Becerra, Yale J. Reg. (Aug. 9,

2021) ....................................................................... 17

Jonathan T. Molot, The Rise and Fall of

Textualism, 106 Colum. L. Rev. 1 (2006) ................ 9

Katie Keith & Joseph Wardenski, Supreme

Court Hears Two Medicare Disputes, Geo.

O’Neil Inst. (Dec. 9, 2021) ...................................... 17

Kent H. Barnett & Christopher J. Walker,

Chevron in the Circuit Courts, 116 Mich. L.

Rev. 1 (2017) ............................................... 20, 21, 22

Nathan D. Richardson, Deference is Dead,

Long Live Chevron, 73 Rutgers U.L. Rev.

441 (2021) ............................................................... 19

Philip Hamburger, Chevron Bias, 84 Geo.

Wash. L. Rev. 1187 (2016) ....................................... 3

vii

Reuel E. Schiller, The Era of Deference: Courts,

Expertise, and the Emergence of New Deal

Administrative Law, 106 Mich. L. Rev. 399

(2007) ...................................................................... 13

Thomas W. Merrill, Article III, Agency

Adjudication, and the Origins of the

Appellate Review Model of Administrative

Law, 111 Colum. L. Rev. 939 (2011) ..................... 10

Thomas W. Merrill, The Chevron Doctrine

(2022) .............................................................. passim

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies helps restore

the principles of constitutional government that are

the foundation of liberty. Toward those ends, Cato

publishes books and studies, files amicus briefs, conducts conferences, and produces the annual Cato Supreme Court Review.

The Liberty Justice Center is a nonprofit, nonpartisan, public-interest litigation firm that seeks to protect

economic liberty, private property rights, free speech,

and other fundamental rights. The Liberty Justice

Center pursues its goals through strategic, precedentsetting litigation to revitalize constitutional restraints

on government power and protections for individual

rights.

To advance these goals, the Liberty Justice Center

regularly litigates cases challenging overbroad assertions of regulatory discretion. See Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, No. 22-10387,

2022 U.S. App. LEXIS 31958 (5th Cir. Nov. 18, 2022)

(striking down Congress’s delegation of regulatory authority to a private industry group); BST Holdings,

L.L.C. v. OSHA, 17 F.4th 604, 609 (5th Cir. 2021) (enjoining the Occupational Safety and Health Administrations’ vaccination mandate). This case presents

an important opportunity for this Court to further

1 Rule 37 statement: All parties were timely notified and con-

sented to the filing of this brief. Further, no party’s counsel authored this brief in any part and amici alone funded its preparation and submission.

2

limit agency regulatory authority to its proper scope

under the Constitution.

This case interests amici because the Chevron doctrine is a violation of the separation of powers, and the

separation of powers is fundamental to the preservation of liberty.

SUMMARY OF ARGUMENT

The Chevron doctrine originated from ostensibly

innocent beginnings, purportedly as an extension of

statutory canons of construction. See Chevron v. Nat.

Res. Def. Council, 467 U.S. 837, 843 n.9 (1984); Buffington v. McDonough, No. 21–972, slip op. at 8 (U.S.

Nov. 7, 2022) (Gorsuch, J., dissenting from denial of

cert). But it is now clear that Chevron deference is unconstitutional and ahistorical. Over the past forty

years and counting, it has wreaked havoc in the lower

courts upon people and businesses.

One such business is Loper Bright Enterprises.

Loper Bright and the other petitioners in this case are

herring fishermen who face significant financial hardships under new regulations issued under the supposed authority of the Magnuson-Stevens Act (“MSA”).

Pet. at 7. The MSA divided the nation’s fisheries into

regions, each with a “fishery management council”

tasked with creating a “fishery management plan” for

that region. Id. at 3–4. The MSA stated that these

“fishery management plans ‘may require that one or

more observers be carried on board a [fishing] vessel.’”

Id. at 4; 16 U.S.C. § 1853(b)(8) (1996) (emphasis

added). In 2020, the National Marine Fisheries Service

(“NMFS”) invoked this authority to promulgate a regulation requiring “industry funded monitoring” of

catch amounts for vessels fishing in New England waters. Pet. at 8–9; 85 Fed. Reg. 7,414 (Feb. 7, 2020).

3

This regulation financially harms commercial fishers in multiple ways. First, they must make room on a

crowded vessel to carry a monitor, which takes up valuable working space and adds costly weight. Pet. at 24.

Even more onerously, they must pay the monitor’s

wages. Id. at 10. This can cost up to $710 a day, and

paying for monitors is expected to reduce their profits

by 20%. Id. Those who refuse to pay for monitors are

prohibited from fishing for herring. Id.

The petitioners sued, and the district court upheld

the agency’s regulation as a proper interpretation of

MSA’s “may require” language. Id. at 10–11. The court

of appeals upheld that decision, but on a different rationale. The panel concluded that the statute was ambiguous as to whether fishing operations could be

forced to pay the cost of their own monitoring. But it

concluded that NMFS’s interpretation of the statute

was a reasonable one, and therefore held for the government at “Step Two” of the Chevron Doctrine. Id. at

12–13.

This case offers a clean vehicle to reconsider the validity of the Chevron doctrine. Chevron has long been

persuasively criticized as unconstitutional, both for violating Article III’s vesting of all judicial powers in the

judiciary and for violating due process. See Michigan

v. E.P.A., 576 U.S. 743, 761 (2015) (Thomas, J., concurring); Charles J. Cooper, The Flaws of Chevron Deference, 21 Tex. Rev. L. & Pol’y 307, 310–11 (2016);

Douglas H. Ginsburg & Steven Menashi, Our Illiberal

Administrative Law, 10 NYU J.L. & Liberty 475, 507

(2016); Philip Hamburger, Chevron Bias, 84 Geo.

Wash. L. Rev. 1187, 1211 (2016).

This brief focuses on two particular problems with

Chevron. First, Chevron deference is ahistorical. It was

4

not until the mid-twentieth century that courts ever

gave substantial deference to an agency’s interpretation simply because it was the agency’s interpretation.

See Aditya Bamzai, The Origins of Judicial Deference

to Executive Interpretation, 126 Yale L.J. 908, 913–14

(2017). And up until the New Deal and passage of the

Administrative Procedure Act (“APA”), such deference

was rare. See Thomas W. Merrill, The Chevron Doctrine 47–49 (2022). In fact, the APA drafters’ major

concern in codifying judicial review was deference to

factual findings, not legal conclusions. See id. at 46.

Second, there is an increasing disconnect between

what Chevron looks like in this Court and what Chevron looks like in the lower courts. This Court has

rarely applied Chevron in the past seven years, while

the circuits have largely deferred to agency interpretations with impunity. During this timeframe, this

Court resolved 70% of Chevron cases at “Step One,”

with only 13% of cases going to Step Two. But at the

circuit level, half of cases invoking Chevron were decided at Step Two. Among those cases where Chevron

was invoked and the court found that no exception to

Chevron applied, 59% made it to Step Two. And among

cases decided at Step Two, agencies won 77% of the

time.

Chevron has no basis in the original meaning of the

Constitution. It instead arose out of the growth of administrative power during the New Deal. Further, the

lower courts have not kept up with this Court’s de-emphasis of Chevron. Only officially overruling Chevron

can provide much-needed clarity to lower courts. And

this case presents the Chevron question squarely, offering an excellent vehicle to reconsider that decision.

This Court should grant certiorari and overrule Chevron.

5

ARGUMENT

I.

CHEVRON IS AHISTORICAL AND SHOULD

BE OVERRULED

Defenders of Chevron often claim that courts deferred to agencies as far back as the nineteenth century. See, e.g., Craig Green, Chevron Debates and the

Constitutional Transformation of Administrative Law,

88 Geo. Wash. L. Rev. 654, 679–80 (2020). But that is

misleading. Courts referenced the executive’s legal interpretation in certain situations as only persuasive

authority, but that was a far cry from even Skidmore

deference, let alone Chevron. The history of deference

doctrines leading up to the passage of the APA and

Skidmore shows that Chevron is not grounded in history.

A. Contemporaneous and Customary Canons

of Interpretation

Prior to the American founding, and continuing

through it, two types of statutory interpretative canons were applied to ambiguous texts. See Bamzai, supra, at 933–38; Merrill, Chevron Doctrine, supra, at

34. The first was contemporanea expositio—contemporaneous interpretation—which examined legal interpretations contemporaneous with the creation of a

text. The second was interpres consuetudo—customary

interpretation—which gave credence to the long-held

usage and interpretation of a text. See Bamzai, supra,

at 933–38.

Contemporanea expositio comes from a longer Latin

phrase that means “a contemporaneous exposition is

the best and most powerful in law.” Id. at 933. This

canon holds that ambiguous statutes should be interpreted as they were interpreted contemporaneously

6

with the statute’s enactment. This canon traces its

roots as far back as the fifteenth century, when one

treatise held that the most persuasive authorities

were those nearest to a statute. See A Discourse Upon

the Exposicion and Understandinge of Statutes with

Sir Thomas Egerton’s Additions 151 (Samuel E.

Thorne ed., 1942). For example, when examining statutory ambiguity, Lord Edward Coke reviewed the

texts and works of authors writing at the time the law

was passed. 2 Fortunatus Dwarris, A General Treatise

on Statutes 562 (2d ed. 1848).

Another early interpretive canon, interpres consuetudo, came from a Latin phrase meaning “usage is

the best interpreter of laws.” Bamzai, supra, at 937.

This canon stemmed from Roman law in the third century and holds that ambiguous texts should be interpreted as they have been over a long course of time. Id.

at 937 n.113. This canon also had support in the English common law. See Stevens v. Duckworth, 145 Engl.

Rep. 486, 487 (1664) (“[T]he reason of a law, and the

design, of the law-makers, must be judged of by what

has been the constant practice ever since . . . .”). Duckworth upheld a statutory interpretation allowing the

sale of wine at a tavern because that was the long-held

practice since the passage of the statute. Id.

Together, these two canons look at prior interpretation and past usage to determine the meaning of a

statute. Historically, the American Founders also recognized these canons and applied them to ambiguous

statutes. But this was not the same as deferring to the

executive solely because it was the executive. Alexander Hamilton and James Madison believed that courts

should review statutes de novo, just like they did constitutional provisions, applying the same canons of

“[c]contemporary and concurrent expositions” to

7

ambiguous statutory provisions. 2 Annals of Cong.

1945–46 (1791); Bamzai, supra, at 938–41.

The Supreme Court also applied these canons in

several cases in early American history. These cases

have been cited by some as precedent for deference to

the executive branch. See Green, supra, at 734–40.

But the key to understanding these cases is that the

Court was not deferring to the agency just because it

was an agency. Rather, the Court was respecting the

agency’s long-held contemporaneous interpretation of

a statute because it was long-held and consistent.

First, in Edwards’ Lessee v. Darby, the Court

opined that in “the construction of a doubtful and ambiguous law, the cotemporaneous construction of those

who were called upon to act under the law, and were

appointed to carry its provisions into effect, is entitled

to very great respect.” 25 U.S. (12 Wheat.) 206, 210

(1827) (emphasis added). At issue was whether commissioners appointed by the state had authority under

the statute to survey certain lands. Id. at 207–09. The

Court gave substantial weight to the commissioners’

contemporaneous interpretation of the statute, especially since the legislature affirmed that interpretation

shortly thereafter. Id. at 209–10. Crucially, although

the Court emphasized that the executive’s interpretation was given great weight, that was only because it

was contemporaneous and consistently held. See id. at

210.

Another nineteenth century case, Merritt v. Cameron, rejected giving any special recognition to an executive department’s interpretation. 137 U.S. 542

(1890). That was because the interpretation was first

adopted twelve years after the statute was enacted and

was abandoned by the executive five years prior to the

8

case. Id. at 552. As the Court explained, an executive

interpretation only deserved “conclusive and binding”

status if it was “the contemporaneous construction”

and had been “continuously in force for a long time.”

Id.

Courts regularly applied these canons during the

late nineteenth century. See, e.g., The “City of Panama,” 101 U.S. 453, 461 (1879) (concluding that the

“rule is universal that the contemporaneous construction of such a statute is entitled to great respect,” especially when that interpretation “has prevailed for a

long period”); Schell v. Fauché, 138 U.S. 562, 572

(1891) (emphasizing that the contemporaneous construction of “the officials whose duty it is to carry the

law into effect, is universally held to be controlling”).

But courts also recognized the limits of these canons.

In United States v. Haley, the Court rejected the Department of the Interior’s interpretation because it

had been inconsistent over the years. 160 U.S. 136

(1895). It was therefore the Court’s “duty to determine

the true interpretation of the [statute], without reference to the practice in the department.” Id. at 145.

In none of these cases did the Court “defer” to the

executive branch because of its expertise or because it

was the executive branch. Rather, in each of these

cases the Court respected the consistently held, contemporaneous interpretation of the executive branch.

If the executive branch’s interpretation was not longheld or contemporaneous—regardless of whether it

was reasonable—the Court applied its own judgment.

Some of the main motivations behind applying

these canons were reliance interests. See Merrill,

Chevron Doctrine, supra, at 35–36. The contemporaneous canon provides stability, since the earliest

9

interpretation is often the first one looked to when interpreting texts. Id. at 35. The “contemporaneous and

continuous construction of the statute” could create “a

right to rely on that interpretation,” and it “put[s] faith

in the action of [the] constituted authorities, judicial,

executive, and administrative.” United States v. Hill,

120 U.S. 169, 182 (1887). The long-held interpretation

canon recognizes that with the passage of time there

is even more of a reliance interest. Merrill, Chevron

Doctrine, supra, at 36. “Both officers, law-makers and

citizens naturally adjust themselves to any long-continued action of the Executive Department—on the

presumption that unauthorized acts would not have

been allowed to be so often repeated as to crystallize

into a regular practice.” United States v. Midwest Oil

Co., 236 U.S. 459, 472–73 (1915). Unlike Chevron deference, where the agency receives deference for its interpretation no matter how novel or inconsistent with

past interpretations, these canons provide stable interpretations of the law.

B. The Mandamus Cases

Other supposed precedents for Chevron deference

are the mandamus cases, which are often referred to

as nineteenth century “deference” cases.2 While executive actions were generally reviewed de novo at this

time, courts began to apply a more deferential form of

review to applications of relief from agency action—

2 See, e.g., United States v. Mead Corp., 533 U.S. 218, 241–42

(2001) (Scalia, J., dissenting) (arguing that Chevron deference

stemmed from the mandamus standard); Jonathan T. Molot, The

Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 18 n.69 (2006)

(“[T]here are ample nineteenth-century examples of such deference to executive officials within their areas of administration

and expertise.”); Green, supra, at 734–40 (discussing deference in

the nineteenth century).

10

writs of mandamus. Ann Woolhandler, Judicial Deference to Administrative Action—A Revisionist History,

43 Admin. L. Rev. 197, 209 (1991).

Between 1805 and 1875 there was no general federal jurisdiction, and the main avenue for plaintiffs to

seek recourse from executive action was via a writ,

usually a writ of mandamus. See Bamzai, supra, at

950–51; see also Thomas W. Merrill, Article III, Agency

Adjudication, and the Origins of the Appellate Review

Model of Administrative Law, 111 Colum. L. Rev. 939,

947 (2011). A writ of mandamus is a request that an

official perform a legally required act. 52 Am. Jur. 2d

Mandamus § 403. Other than common law contract or

tort claims, these writs were the only available remedy

against executive or administrative action in violation

of a statute. See Merrill, Article III, supra, at 947;

Bamzai, supra, at 948. But a mandamus had its own

standard of review: Mandamus was only available if

the plaintiff could show that the executive had

breached a ministerial, nondiscretionary duty that violated a vested right belonging to the plaintiff. Bamzai, supra, at 949. See also Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 170–71 (1803).

Writs of mandamus were originally reviewed under

a standard that was functionally de novo, and agency

action was routinely found reviewable as ministerial.

See, e.g., Kendall v. United States ex rel. Stokes, 37

U.S. (12 Pet.) 524, 610 (1838). But in 1840, the Supreme Court changed the standard of review that it

applied to mandamus requests in Decatur v. Paulding,

39 U.S. (14 Pet.) 497 (1840). The Court denied a writ

of mandamus because the act of interpreting the statute and initiating executive action in accordance with

that interpretation was an act of discretion requiring

decision-making, not a routine ministerial act. The

11

Court therefore held that the action was not subject to

review. Id. at 513–15; see Bamzai, supra, at 949. The

Court explained that in a normal suit, “the Court certainly would not be bound to adopt the construction

given by the head of a department.” Decatur, 39 U.S.

at 515. But the Court found that it could not secondguess the interpretation and acts of the executive

where the executive had been given discretion. Id.; see

also United States ex rel. Carrick v. Lamar, 116 U.S.

423, 426 (1886). Decatur began a four-decade period

where the Court generally refused to grant mandamuses, determining each time that the agency’s action

was discretionary. In each of these cases the Court

would thus uphold the agency’s interpretation. See

Bamzai, supra, at 953.

But this deferential review was limited to mandamus actions and was entirely due to the unusual nature of that cause of action. See id. at 958. In United

States ex rel. Dunlap v. Black, the Court explained that

it could “not interfere by mandamus with the executive

officers of the government in the exercise of their ordinary official duties.” 128 U.S. 40, 48 (1888). But the

Court made clear that it could interpret the law itself

if a suit were brought under a different cause of action

or if a ministerial, rather than a discretionary act,

were at issue. Id.; see also Decatur, 39 U.S. at 515.

Thus, what is often hailed as the birth of deference was

just “deference” in one very specific context, and the

Court retained its role as the last word in all other interpretive matters. See Decatur, 39 U.S. at 515; Dunlap, 128 U.S. at 48. Mandamus review was not in the

same family as modern Chevron deference.

After 1875, when mandamus actions were less

prevalent due to the general federal jurisdiction provisions of the Jurisdiction and Removal Act of 1875,

12

mandamus deference became largely extinct, while de

novo review continued. See Ch. 137, § 1, 18 Stat. 470,

470 (1875) (codified as amended at 28 U.S.C. § 1331);

Bamzai, supra, at 955; Woolhandler, supra, at 239.

This demonstrates that such deference was limited to

the unique nature of mandamus petitions; if deference

had been a general interpretive rule regarding executive action, it would have remained through the late

nineteenth century and into the early twentieth.

C. Factual Deference

Another area where courts appeared to defer to

agencies was in factual findings. Agencies were given

fact-finding authority, and courts deferred to those

findings. For example, in Johnson v. Towley, the Court

emphasized that the executive’s factual findings were

generally final, but the Court could review “misconstruction of the law.” 80 U.S. (13 Wall.) 72, 82–86

(1871). See Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284 (1855); The

Interstate Commerce Act, Ch. 104, § 14, 24 Stat. 384,

384 (1887) (“[S]uch findings so made shall thereafter,

in all judicial proceedings, be deemed prima facie evidence as to each and every fact found.”). But this is no

different than what appellate courts do with trial records—defer to the trial court’s factual findings.

Deferring to factual determinations but not legal

interpretations created a line drawing problem, and

thus deference did not always stop at merely factual

decisions. In Bates & Guild Co. v. Payne, the Court embraced a more deferential standard of review for questions of law. 194 U.S. 106 (1904). In reviewing the

Postmaster General’s new mail classification, the

Court concluded that on mixed questions of law and

fact, or even on purely legal questions, “the exercise of

13

[agency] discretion ought not to be interfered with unless the court be clearly of opinion that it was wrong.”

Id. at 107–10.

Importantly, the Postmaster General admitted

that its classification conflicted with the interpretation

of the mail class statute that the Post Office Department had held for over sixteen years. Id. at 111 (Harlan, J., dissenting). Deference here was antithetical to

the long-held custom canon of construction.

While a progressive opinion, Bates was later constrained to questions of fact and mixed questions of

law and fact, rather than pure legal questions. See Silberschein v. United States, 266 U.S. 221, 225 (1924).

The Court continued to provide de novo judicial review

of agency decisions that were “wholly dependent upon

a question of law.” Id. Bates alone thus hardly establishes a more widespread tradition of deference. The

courts generally treated Bates as an outlier, instead

following Silberschein and applying the traditional interpretive rules until the New Deal. See Bamzai, supra, at 968–69.

D. The New Deal Era of Deference

During the New Deal, the role of administrative

agencies ballooned, and the standards of judicial review shifted along with them. See Reuel E. Schiller,

The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L.

Rev. 399, 403–04 (2007). Three cases defined the New

Deal era and changed the landscape of judicial review:

Gray v. Powell, 314 U.S. 402 (1941), NLRB v. Hearst

Publications, 322 U.S. 111 (1944), and Skidmore v.

Swift & Co., 323 U.S. 134 (1944).

14

First, in 1941, the Court upheld the agency’s interpretation of coal “producer” because Congress had delegated that authority to experts. Gray, 314 U.S. at

411–12. Although there was “no dispute as to the evidentiary facts,” the Court refused to “substitute its

judgment for that of the [agency].” Id. This hearkened

back to Bates and the acceptance of deference to purely

legal conclusions. Justice Owen Roberts vigorously

dissented, arguing it was the role of the Court to review the agency’s statutory interpretation. Id. at 420

(Roberts, J., dissenting). Roberts accused the majority

of “fail[ing] in performing its duty” and “abdicat[ing]

its function as a court of review” by merely accepting

the agency’s statutory interpretation. Id.

This deferential reasoning continued in 1944 in

NLRB v. Hearst Publications, where the Court explained that the specific application of statutory terms

was left to agencies, not courts. 322 U.S. at 131. At issue was the definition of “employee” under the National Labor Relations Act. Id. at 113. Emphasizing

the agency’s expertise, the Court held the agency’s definition was “to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.” Id. at 131. Although acknowledging that issues of statutory interpretation first arising in judicial proceedings are decided by the judiciary, the Court reasoned that when

“the question is one of specific application of a broad

statutory term” and “the agency administering the

statute must determine it initially, the reviewing

court’s function is limited.” Id. at 130–31. While scholars disagree on the exact amount of deference Hearst

15

stood for3—one thing was clear: Deference was increasingly in vogue.

Also in 1944, the Supreme Court took a different

approach and opted for a multi-factor balancing test

rather than a bright-line rule. Federal courts were permitted to defer, or “respect” the agency’s interpretation, when the agency’s statutory interpretation was

reasonable. Skidmore, 323 U.S. at 140. Skidmore deference is often considered “persuasive deference” because the balancing test is not binding—courts may

defer but are not required to. See Merrill, Chevron

Doctrine, supra, at 44.

Gray, Hearst, Skidmore, and, to a certain extent,

Bates are all incarnations of a modern deference to an

agency’s interpretation of the law merely because the

interpretation came from the agency. Rather than applying contemporaneous and long-held canons of construction to the agency’s interpretation, courts deferred to agencies because they were agencies and had

special expertise. Although true Chevron deference

was not yet on the horizon, the Court had fully broken

from historical precedent and was bowing to the agencies’ interpretation.

Chevron deference is not a creature of history. It

was not until the mid-twentieth century and the rise

of the administrative state that courts seriously deferred on legal interpretations. Rather, prior to the

New Deal, courts simply applied canons of construction that gave weight to the customary and contemporaneous interpretation of the executive branch. For

these reasons, the Court should take this opportunity

3 See Bamzai, supra, at 981; Merrill, Chevron Doctrine, supra,

at 38–42.

16

to overrule Chevron and return to the more limited

and historically grounded canons of construction.

II.

THE CIRCUIT COURTS HAVE NOT FOLLOWED THIS COURT’S TRAJECTORY IN

ABANDONING CHEVRON

A. This Court Has Not Deferred Under Chevron in Six Years

Although this Court has not overruled Chevron, it

has not deferred under the doctrine at Step Two in six

years. The Court also did not cite Chevron in a majority opinion in the 2021 term, and cited it only three

times in 2020.4 Since Michigan v. EPA, and King v.

Burwell, this Court has analyzed ten cases under

Chevron.5 In only one of those did the Court continue

to Step Two. See Cuozzo Speed Techs., LLC v. Lee, 579

U.S. 261 (2016). All the other cases were decided under

Step One or under an exception, such as Mead. Out of

the nine cases decided before reaching Step Two, the

agency only won twice, both at Step One. See HollyFrontier Cheyenne Ref., LLC v. Renewable Fuels

Ass’n, 141 S. Ct. 2172 (2021); Johnson v. Guzman

Chavez, 141 S. Ct. 2271 (2021). Since the close of the

2015 term, the agency has lost 70% of Supreme Court

4 The first statistic is derived from a Lexis search for “467 U.S.

837” from July 1, 2021 to the present. The second is from a Lexis

search for “467 U.S. 837” from July 1, 2020 to June 30, 2021, and

excludes Little Sisters of the Poor v. Pennsylvania, 140 S. Ct. 2367

(2020), since it was decided as part of the 2019 term.

5 Empirical data used in this brief was collected from a Lexis

search. Cases were limited to those that mentioned Chevron at

least four times, discussed it in the majority, and analyzed

whether to apply Chevron. The data excludes cases that applied

Auer/Kisor deference rather than Chevron and cases that were

decided without determining whether Chevron applied. The data

is also limited to reported cases.

17

cases that addressed Chevron. If considering only the

eight cases that were decided at one of the Chevron

steps (rather than an exception), the agency won only

one case at Step Two and two cases at Step One. Agencies lost the remaining five cases at Step One. This

Court thus rarely finds statutes ambiguous at Step

One, and it does not even implicitly defer to the government when interpreting statutes at Step One.

Rather than resorting to Chevron, this Court has

been applying the rules of statutory interpretation

even more closely. See Am. Hosp. Ass’n v. Becerra, 142

S. Ct. 1896, 1906 (2022) (“In sum, after employing the

traditional tools of statutory interpretation, we do not

agree with HHS’s interpretation of the statute.”). The

two Becerra cases from last term exemplify this

Court’s current statutory interpretation jurisprudence

when it comes to agencies. Many thought that either

case, especially American Hospitals, would be an opportunity for the Court to overrule Chevron. See Eli

Nachmany, SCOTUS Faces a Chevron Decision Tree

in American Hospital Association v. Becerra, Yale J.

Reg. (Aug. 9, 2021);6 Brian R. Stimson, et al., Pending

Supreme Court Decision in AHA v. Becerra May be Felt

Well Beyond the Healthcare Industry, 12 Nat. L. Rev.

46 (Feb. 15, 2022);7 Katie Keith & Joseph Wardenski,

Supreme Court Hears Two Medicare Disputes, Geo.

O’Neil Inst. (Dec. 9, 2021).8

But instead, the word Chevron does not appear in

either decision. In American Hospitals, this Court applied the “traditional tools of statutory interpretation,”

determining that “under the text and structure of the

6 Available at https://bit.ly/3hbbIcM.

7 Available at https://bit.ly/3FcIDFY.

8 Available at https://bit.ly/3Pd2jOD.

18

statute, this case is therefore straightforward.” Am.

Hosp., 142 S. Ct. at 1904, 1906. Even though “Chevron”

was mentioned 51 times during oral argument, the

case was decided purely on statutory interpretation

grounds. Transcript of Oral Argument, Am. Hosp. Assoc. v. Becerra, 142 U.S. 1896 (2022).

Similarly, in Becerra v. Empire Health Foundation,

this Court favored the agency’s interpretation because

it found that “text, context, and structure all support”

HHS’s interpretation. 142 S. Ct. 2354, 2368 (2022).

Throughout the opinion, the Court emphasized the

plain meaning of the text. See id. at 2367 (“[T]he usual

meaning . . . should govern.”); id. at 2362 (“But when

read in that suitable way, the fraction descriptions disclose a surprisingly clear meaning—the one chosen by

HHS.”). “Chevron” was mentioned 17 times in oral argument, but not once in the opinion. Rather than deferring under Chevron, the Court analyzed the text

and structure of the statute, and those are what decided the case.

Instead of focusing on whether there is ambiguity

that would trigger Chevron, the Becerra cases are examples of this Court applying the canons “to find the

best reading of the statute.” See Brett Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118,

2135, 2144 (2016) (“[W]hen the text of the statute is

clear, a court should not turn to other principles of

statutory interpretation such as . . . Chevron deference.”).

And though this Court emphatically moved away

from relying on Chevron in the last term, this development is not novel. This Court has been steadily applying Chevron less frequently for years. See Nathan D.

Richardson, Deference is Dead, Long Live Chevron, 73

19

Rutgers U.L. Rev. 441, 475–503 (2021). More and more

exceptions have cropped up to the doctrine over time.

See, e.g., Mead, 533 U.S. at 226–27 (interpretation

must have force of law); Burwell, 576 U.S. at 485–86

(interpretation must not be in an area of “deep political

and economic significance”) (internal quotations omitted); Michigan, 576 U.S. at 752–54 (interpretation

must be permissible in light of statutory context as

well as text).

Further, multiple recent and current justices have

critiqued the doctrine. See Buffington, slip op. at 14

(Gorsuch, J., dissenting from denial of cert) (describing

the individual critiques of Chief Justice Roberts and

Justices Scalia, Kennedy, Thomas, Gorsuch, and Kavanaugh).

In sum, this Court has gradually moved away from

Chevron to the point of no longer addressing it even

when it is seemingly applicable and instead applying

the canons of construction. Chevron appears to be “effectively buried” at this Court, though yet without “a

tombstone” acknowledging its death. See id. at 15–16.

B. The Lower Courts Still Apply Chevron

Regularly

But if Chevron is at least partially interred at the

Supreme Court, it is surely out of its grave and roaming like a zombie at the circuit courts. In Justice Gorsuch’s Buffington dissent, he suggests that “courts . . .

rarely rely upon [Chevron],” and he calls the Federal

Circuit’s decision to defer “something of an outlier.” Id.

at 15–16. But this is not the whole picture. The circuits

still apply Chevron regularly, albeit not as consistently

as they used to. Because the circuits still actively defer

under Chevron, this Court should grant certiorari to

correct the lower courts.

20

In a study looking at cases from 2003 through 2013,

Professors Kent H. Barnett and Christopher J. Walker

analyzed 1,327 circuit opinions that applied the Chevron doctrine. Kent H. Barnett & Christopher J.

Walker, Chevron in the Circuit Courts, 116 Mich. L.

Rev. 1, 5 (2017).9 Out of all the cases in their study,

Barnett and Walker found that agencies won 71.4% of

the time. Id. at 28. Chevron was applied 74.8% of the

time, while courts used the Skidmore test 10.8% of the

time. Id. at 29. De novo review was granted 7.5% of the

time. Id. The remaining 6.9% of the time, the court did

not specify what standard of review it applied. Id.

When Chevron was applied, agencies won at Step One

11.7% of the time and at Step Two 65.7%. Id. at 33.

Agencies lost at Step One 18.3% of the time and at

Step Two 4.4%. Id. Of the cases that made it to Step

Two, 93.8% favored the agency. Id.

Because the Barnett and Walker study ended

nearly a year and a half before King v. Burwell, before

Michigan v. EPA, and before the Supreme Court cases

discussed above, the Cato Institute did its own empirical study of the circuits for this brief. Our survey covered the last two calendar years, from January 1, 2020

through December 31, 2021.10 We found 142 cases

9 The Barnett and Walker study used slightly different search

criteria than this brief did. See Barnett & Walker, supra, at 22.

One significant difference between our study and the Barnett &

Walker study is that Barnett & Walker treated each instance of

statutory interpretation, including multiple interpretations in

one case, as separate counts, while we only counted each opinion

once, giving controlling weight to the interpretation that deferred. See id. at 23.

10 See note 5 for search criteria. Cases that involved multiple

agency interpretations were only counted as one case.

21

analyzing Chevron.11 The results were less deferential

overall than the Barnett & Walker study, which is unsurprising considering the direction of deference jurisprudence. But unfortunately, the circuits are still

much more deferential than the Supreme Court.

We looked at cases either applying Chevron or deciding whether to apply it.12 In our study, circuit courts

applied the Chevron steps 84.5% of the time, 7.0% of

cases were decided via Skidmore deference or persuasion, 7.0% received de novo review, and 1.4% were decided on other exceptions. Of all cases studied, the

agency won 57.0% of the time, and 50% of all cases

were decided at Step Two.

Of the cases applying Chevron, 59.2% held that the

statute was ambiguous and thus proceeded to Step

Two, while 40.8% held that the statute was unambiguous. Among cases that reached Step Two, the

agency’s interpretation was held to be permissible

77.5% of the time. Among cases decided at Step One,

by contrast, the agency’s interpretation prevailed only

32.7% of the time.

Looking at all cases decided under Chevron, 13.3%

were agency wins at Step One, 45.8% were agency

wins at Step Two, 27.5% were agency losses at Step

One, and 13.3% were agency losses at Step Two. The

45.8% of cases with Step Two agency wins is less than

the 65.7% in the Barnett & Walker study, but it is still

significantly higher than the 10% at the Supreme

Court in the past six years. See Barnett & Walker, supra, at 33.

11 A complete list of the cases in our study is available at

https://www.cato.org/sites/cato.org/files/2022-12/Loper-App.pdf.

12 See Lexis search discussed in note 5.

22

A comparison of the recent Supreme Court cases,

the Barnett & Walker study, and our very recent study

of the circuits shows that the circuits apply Chevron

less than they used to, but not nearly as seldom as the

Supreme Court. Among cases applying Chevron, only

one Supreme Court case (12.5%) in the last seven

terms was decided at Step Two, but the 2003–2013 circuit analysis showed that 70.0% of cases made it to

Step Two,13 and our 2020–2021 study shows that

59.2% of cases were decided at Step Two.

These comparisons show that unfortunately, Justice Gorsuch may have understated the situation when

he said “courts . . . rarely rely upon [Chevron].” Circuit

courts still find ambiguity 59.2% of the time when

Chevron is invoked. Too many courts continue to look

for ambiguity rather than “find[ing] the best reading

of the statute.” Kavanaugh, supra, at 2144. Chevron

continues to boldly wreak havoc among the lower

courts. Leading by example has proven to be insufficient, but this Court has an opportunity to finally put

Chevron to rest and overrule it, thereby providing

much-needed clarity to the circuits.

13 Barnett & Walker, supra, at 33.

23

CONCLUSION

For the foregoing reasons, the Court should grant

the petition. ...................................................................

Respectfully submitted,

Jacob Huebert

Reilly Stephens

LIBERTY JUSTICE CENTER

440 N. Wells Street

Suite 200

Chicago, Illinois 60654

(312) 637-2280

jhuebert@libertyjusticecenter.org

December 9, 2022

Clark M. Neily III

Counsel of Record

Thomas A. Berry

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org