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, INC., ET AL.,

Petitioners,

V.

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE STATES OF

WEST VIRGINIA AND 17 OTHER STATES

IN SUPPORT OF PETITIONERS

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

GRANT A. NEWMAN*

Special Assistant

MAX A. SCHREIBER**

Fellow

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTIONS PRESENTED

The Magnuson-Stevens Act (MSA) governs fishery

management in federal waters and provides that the

National Marine Fisheries Service (NMFS) may require

vessels to “carry” federal observers onboard to enforce

the agency’s myriad regulations. Given that space

onboard a fishing vessel is limited and valuable, that alone

is an extraordinary imposition. But in three narrow

circumstances not applicable here, the MSA goes further

and requires vessels to pay the salaries of the federal

observers who oversee their operations—although, with

the exception of foreign vessels that enjoy the privilege of

fishing in our waters, the MSA caps the costs of those

salaries at 2-3% of the value of the vessel’s haul. The

statutory question underlying this Petition is whether the

agency can also force a wide variety of domestic vessels to

foot the bill for the salaries of the monitors they must

carry to the tune of 20% of their revenues. Under wellestablished principles of statutory construction, the

answer would appear to be no, as the express grant of such

a controversial power in limited circumstances forecloses

a broad implied grant that would render the express grant

superfluous. But a divided panel of the D.C. Circuit

answered yes under Chevron on the theory that statutory

silence produced an ambiguity that justified deferring to

the agency.

The questions presented are:

1. Whether, under a proper application of Chevron,

the MSA implicitly grants NMFS the power to force

domestic vessels to pay the salaries of the monitors they

must carry.

2. Whether the Court should overrule Chevron or at

least clarify that statutory silence concerning

II

controversial powers expressly but narrowly granted

elsewhere in the statute does not constitute an ambiguity

requiring deference to the agency.

III

TABLE OF CONTENTS

Questions Presented ............................................................ I

Introduction and Interests of Amici Curiae ..................... 1

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

Reasons for Granting the Petition...................................... 4

I.

Confusion Over Whether Chevron Remains

Viable And How To Apply It Hurts The States

And The Regulated Public ........................................... 4

II. The Decision Below Is A Strong Vehicle To

Correct Chevron’s Confusion ..................................... 15

Conclusion ........................................................................... 20

IV

TABLE OF AUTHORITIES

Page(s)

Cases

Adams Fruit Co. v. Barrett,

494 U.S. 638 (1990) ......................................................... 5

Am. Fed’n of Lab. & Cong. of Indus.

Orgs. v. Kahn,

618 F.2d 784 (D.C. Cir. 1979) ...................................... 19

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018) ......................................... 11

Bais Yaakov of Spring Valley v. FCC,

852 F.3d 1078 (D.C. Cir. 2017) .................................... 17

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) ......................................................... 4

Buffington v. McDonough,

143 S. Ct. 14 (2022) ....................................... 6, 7, 8, 9, 11

Cal. Bankers Ass’n v. Shultz,

416 U.S. 21 (1974) ......................................................... 19

City of Arlington v. FCC,

569 U.S. 290 (2013) ......................................................... 2

Cnty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) ................................................... 12

Coeur Alaska, Inc. v. Se. Alaska

Conservation Council,

557 U.S. 261 (2009) ......................................................... 7

In re Complaint of Rovas Against

SBC Michigan,

754 N.W.2d 259 (Mich. 2008) ....................................... 14

V

TABLE OF AUTHORITIES

(continued)

Page(s)

FDA v. Brown & Williamson

Tobacco Corp.,

529 U.S. 120 (2000) ......................................................... 5

Gonzales v. Oregon,

546 U.S. 243 (2006) ......................................................... 5

Grosso v. Surface Transp. Bd.,

804 F.3d 110 (1st Cir. 2015) ........................................... 8

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives,

140 S. Ct. 789 (2020) ................................................... 8, 9

Gulf Fishermens Ass’n v. Nat’l Marine

Fisheries Serv.,

968 F.3d 454 (5th Cir. 2020) ......................................... 16

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ..................................... 14

HollyFrontier Cheyenne Refin., LLC v.

Renewable Fuels Ass’n,

141 S. Ct. 2172 (2021) ..................................................... 9

ITServe All., Inc. v. United States,

161 Fed. Cl. 276 (2022) ................................................... 6

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

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

Michigan v. EPA,

576 U.S. 743 (2015) ........................................................ 6

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Nat’l Cable Television Ass’n,

Inc. v. United States,

415 U.S. 336 (1974) ................................................. 18, 19

Negusie v. Holder,

555 U.S. 511 (2009) ......................................................... 5

OPM v. Richmond,

496 U.S. 414 (1990) ....................................................... 18

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ..................................................... 5

Pub. Water Supply Co. v. DiPasquale,

735 A.2d 378 (Del. 1999) ............................................... 14

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) ................................................. 1, 9

Tennessee v. FCC,

832 F.3d 597 (6th Cir. 2016) ........................................... 9

Texas v. Becerra,

No. 5:22-CV-185-H, 2022 WL 3639525

(N.D. Tex. Aug. 23, 2022) ............................................... 6

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) ....................................................... 16

Va. Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) ................................................... 16

Vasquez v. Hillery,

474 U.S. 254 (1986) ......................................................... 4

Wachovia Bank, N.A. v. Burke,

414 F.3d 305 (2d Cir. 2005) ............................................ 8

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

White Stallion Energy Ctr., LLC v. EPA,

748 F.3d 1222 (D.C. Cir. 2014) .................................... 12

Constitutional Provision

U.S. CONST. art. I, § 9, cl. 7 ............................................... 17

Statutes

16 U.S.C. § 1821 .................................................................. 16

16 U.S.C. § 1853a ................................................................ 16

16 U.S.C. § 1862 .................................................................. 16

Other Authorities

Aaron L. Nielson, Sticky Regulations, 85

U. CHI. L. REV. 85 (2018) ............................................. 13

Abbe R. Gluck, What 30 Years of Chevron

Teach Us about the Rest of Statutory

Interpretation,

83 FORDHAM L. REV. 607 (2014) ................................. 10

Brett M. Kavanaugh, Fixing Statutory

Interpretation,

129 HARV. L. REV. 2118 (2016) .......................... 6, 11, 14

Cass Sunstein, Interpreting Statutes in the

Regulatory State,

103 HARV. L. REV. 405 (1989) ...................................... 18

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Daniel S. Brookins, Confusion in the

Circuit Courts: How the Circuit Courts

Are Solving the Mead-Puzzle by

Avoiding It Altogether,

85 GEO. WASH. L. REV. 1484 (2017) .............................. 7

THE FEDERALIST NO. 48 ................................................... 19

THE FEDERALIST NO. 58 .................................................. 18

Gillian E. Metzger, Agencies, Polarization,

and the States,

115 COLUM. L. REV. 1739 (2015) ................................. 11

Jack M. Beermann, End the Failed

Chevron Experiment Now: How

Chevron Has Failed and Why It Can

and Should Be Overruled,

42 CONN. L. REV. 779 (2010)...................................... 5, 7

Jamie G. Judefind, Trouble in the

Tribunals: Exploring the Effects of

Chevron One “Step” at A Time,

27 WIDENER L. REV. 63 (2021) ..................................... 9

Jonathan H. Adler, Shunting Aside

Chevron Deference,

REGUL. REV. (Aug. 7, 2018) ........................................... 9

Jonathan Masur, Judicial Deference and

the Credibility of Agency

Commitments,

60 VAND. L. REV. 1021 (2007) ...................................... 13

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Kenneth A. Bamberger & Peter L.

Strauss, Chevron’s Two Steps,

95 VA. L. REV. 611 (2009) ............................................... 7

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts,

116 MICH. L. REV. 1 (2017) .......................................... 10

Kristin E. Hickman & Aaron L. Nielson,

Narrowing Chevron’s Domain,

70 DUKE L.J. 931 (2021) ................................................. 4

Kristin Hickman & David Hahn,

Categorizing Chevron,

81 OHIO ST. L.J. 611 (2020) ............................................ 7

Linda Jellum, Chevron’s Demise: A Survey

of Chevron from Infancy to Senescence,

59 ADMIN. L. REV. 725 (2007) ...................................... 10

Luke Phillips, Chevron in the States? Not

So Much, 89 MISS. L.J. 313 (2020) .............................. 15

Matthew Stephenson & Adrian Vermeule,

Chevron Has Only One Step,

95 VA. L. REV. 597 (2009) ............................................... 7

Michael Kagan, Chevron’s Liberty

Exception, 104 IOWA L. REV. 491 (2019) ...................... 8

Michael Pappas, No Two-Stepping in the

Laboratories: State Deference

Standards and Their Implications for

Improving the Chevron Doctrine,

39 MCGEORGE L. REV. 977 (2008)............................... 15

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Nathan Alexander Sales & Jonathan H.

Adler, The Rest Is Silence: Chevron

Deference, Agency Jurisdiction, and

Statutory Silences,

2009 U. ILL. L. REV. 1497 (2009) ................................. 17

Rachel E. Barkow, Insulating Agencies:

Avoiding Capture Through

Institutional Design,

89 TEX. L. REV. 15 (2010)............................................. 18

Richard J. Pierce, Jr., The Combination of

Chevron and Political Polarity Has

Awful Effects,

70 DUKE L.J. ONLINE 91 (2021) .................................. 13

Richard M. Re, Should Chevron Have Two

Steps?, 89 IND. L.J. 605 (2014) ...................................... 7

Richard Murphy, The Last Should Be

First—Flip the Order of the Chevron

Two-Step, 22 WM. & MARY BILL RTS.

J. 431 (2013) ..................................................................... 8

Thomas W. Merrill, Judicial Opinions as

Binding Law and as Explanations for

Judgments,

15 CARDOZO L. REV. 43 (1993) .................................... 13

U.S. CHAMBER OF COM. FOUND.,

UNDERSTANDING SMALL BUSINESS IN

AMERICA (2017) ............................................................ 12

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

William N. Eskridge, Jr. & Lauren E.

Baer, The Continuum of Deference:

Supreme Court Treatment of Agency

Statutory Interpretations from

Chevron to Hamdan,

96 GEO. L.J. 1083 (2008)............................................... 10

William S. Jordan, III, Judicial Review of

Informal Statutory Interpretations:

The Answer Is Chevron Step Two, Not

Christensen or Mead,

54 ADMIN. L. REV. 719 (2002) ........................................ 8

William Yeatman, The Becerra Cases: How

Not to Do Chevron,

CATO SUP. CT. REV., 2021-2022 (2022) ................... 6, 19

INTRODUCTION AND

INTERESTS OF AMICI CURIAE*

Doctrinal change often comes slow, particularly for

decades-engrained theories like agency deference. And so

far, the Court has “le[ft] for another day” the recurring

question “whether Chevron should remain” on the books.

SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018). But

letting uncertainty fester has real costs, so that day should

be today.

The amici States of West Virginia, Alabama, Alaska,

Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana,

Mississippi, Missouri, Montana, Nebraska, South

Carolina, Tennessee, Texas, Utah, and Virginia agree with

Petitioners that the D.C. Circuit majority got Chevron

wrong. It should have looked to all the canons of

construction before calling the statute ambiguous and

resorting to deference to break the tie. If the court had

truly “empt[ied] [its] interpretive toolkit,” Pet.App.25, it

would have seen that the National Marine Fisheries

Service lacks the authority it claims to unilaterally tax an

industry. Sometimes statutory silence might mean

statutory uncertainty, but not always. Certainly not here,

where Congress said “yes” to measures like the ones the

agency deployed in some parts of the statute—but not in

those the agency relied on to justify its work.

The Court should grant the Petition to say at least that

much. At a minimum, it should resolve the sustained

confusion over whether and how Chevron applies. It

should favor a judicially robust version of deference that

takes seriously the courts’ responsibility to ensure that

Congress actually delegated the powers an agency

Under Supreme Court Rule 37.2(a), amici timely notified counsel

of record of their intent to file this brief.

*

2

asserts. But it should also go further. The lower court

believed that despite this Court’s recent ambivalence to

agency deference, the still-operative Chevron doctrine

required its (atextual) result. Pet.App.15. If that view is

right, then the misguided outcome it shaped is all the more

reason to reconsider Chevron wholesale.

The amici States urge the Court to take up that task

now. The confused status quo has real costs for the people

who live and work within our borders. Because the

problems with Chevron keep multiplying, no one really

knows whether it is still viable or how courts should apply

its teachings. Here, four federal judges reached three

different conclusions after applying the same two-step

doctrine to one statutory text. That outcome reflects the

most common result of the uncertainty: The lower courts

uphold even highly burdensome, novel, and textually

suspect rules. And with the “hundreds of federal agencies

poking into every nook and cranny of daily life,” City of

Arlington v. FCC, 569 U.S. 290, 313, 315 (2013) (Roberts,

C.J., dissenting) (cleaned up), the cost of that state of

affairs is high.

So letting Chevron die a long death from neglect is the

wrong approach. The States, our residents, and our

industries are hurt along the way. The Court should

intervene now to limit Chevron in a way that is consistent

with the separation of powers and the principles of

federalism. Otherwise, it’s time to toss it.

SUMMARY OF THE ARGUMENT

I. The uncertainty in current agency deference

doctrine is untenable. After almost forty years, courts are

unable to apply Chevron with any consistency. Though

the doctrine purports to defer only on the basis that

Congress delegated gap-filling authority to an agency,

3

Chevron’s confused state makes it difficult to ensure that

courts do more than assume that delegation premise.

Lower courts have real questions about whether Chevron

remains viable and how to apply it if it does. The result is

widespread confusion and wildly different approaches as

courts suss out ambiguity.

The Court should grant the Petition because this

confusion carries heavy costs. Lower courts struggling to

apply Chevron virtually always rule for the agency, which

means that the economy labors under a potentially

unjustified pro-regulatory default. Chevron also gives

agencies wide latitude to interpret statutes aggressively

and shift course dramatically when administrations

change.

Regulation is costly; over-regulation and

mercurial regulation even more so. Waiting longer to

intervene forces painful tradeoffs, and they hurt the

States and our residents. The Court should restrain or

reconsider Chevron now.

II. This case is an ideal vehicle to address Chevron’s

confusion and deficiencies.

Beyond the reasons

Petitioners explain, the decision below underscores two

other problems from a too-broad agency deference

regime. For one thing, the majority blessed the agency’s

burdensome rule based on statutory silence. Particularly

when Congress spoke to the same matter in other parts of

the statute, the lower court should have found clarity in its

choice not to speak here. For another, the majority

allowed silence to support the agency’s decision to tax

private parties to fund its enforcement efforts. But

bypassing Congress’s power of the purse in this way

short-circuits an important form of constitutional

accountability.

Thus, even if the Court does not

reconsider Chevron entirely in this case, granting the

Petition would still rectify both of these egregious errors.

4

REASONS FOR GRANTING THE PETITION

I.

Confusion Over Whether Chevron Remains

Viable And How To Apply It Hurts The States

And The Regulated Public.

Chevron has confused regulated parties, litigants, and

lower courts—and undermined democratic accountability

and responsible rulemaking—for long enough to warrant

wholesale review. It has failed to provide the kind of

“stability [and] predictability” that might defuse the

“compelling justification” against scrapping an embedded

doctrine. Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986).

Short of reconsidering Chevron, even stepping in to

narrow its reach would be an important step toward “more

predictable and consistent application.” Kristin E.

Hickman & Aaron L. Nielson, Narrowing Chevron’s

Domain, 70 DUKE L.J. 931, 939 (2021). But either way,

the Court should speak directly to Chevron’s limits

instead of forcing courts to wonder whether the doctrine

still has life and leaving them to their own devices to figure

out how to apply it. The confused state of affairs we are in

now hurts the people and businesses of our States. We

urge the Court to end it.

A. Most everyone is seriously confused whether

Chevron remains a doctrinal contender—and if it is, how

lower courts should apply it.

Chevron is not a tool to outsource statutory

interpretation to the Executive Branch. The Court built

the doctrine on the idea that agencies may sometimes fill

in statutory blanks, but Congress must actually delegate

that power to them. “It is axiomatic” that agency power

is “limited to the authority delegated by Congress.”

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208

(1988). So Congress’s choice to delegate “administrative

5

authority” is “[a] precondition to deference under

Chevron.” Adams Fruit Co. v. Barrett, 494 U.S. 638, 649

(1990) (cleaned up). The theory goes that ambiguity

means Congress left the agency something to do: It

“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). What

Chevron does not suggest, however, is that courts should

take a back seat whenever a law “is ambiguous and an

administrative official is involved.” Gonzales v. Oregon,

546 U.S. 243, 258 (2006) (cleaned up). Whether Congress

delegated power and how much are judicial questions—

deferring “to the agency’s reasonable gap-filling

decisions” does not mean that “courts should cease to

mark the bounds of delegated agency choice.” Negusie v.

Holder, 555 U.S. 511, 531 (2009) (Stevens, J., concurring

in part and dissenting in part). Properly understood,

Chevron’s two-step framework thus supports—not

erases—the judiciary’s responsibility to wrestle with

statutory meaning.

Whether the Court can pull Chevron back to those

limits remains an open question. What is more than

evident, though, is that the doctrine has “turned out to be

unstable and difficult to apply”—lacking a “solid basis”

from the beginning “virtually guaranteed” inconsistency,

with “conflicting principles pull[ing] decision makers with

disparate views in different directions.”

Jack M.

Beermann, End the Failed Chevron Experiment Now:

How Chevron Has Failed and Why It Can and Should Be

Overruled, 42 CONN. L. REV. 779, 796 (2010). That

observation is important, but not new. In one of his final

decisions, Justice Kennedy explained that the Court

should revisit both “the premises that underlie Chevron

and how courts have implemented” it. Pereira v. Sessions,

138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring).

6

Other members of the Court have said much the same.

See, e.g., Michigan v. EPA, 576 U.S. 743, 761 (2015)

(Thomas, J., concurring) (critiquing the way Chevron

shifts interpretive power from courts to the executive);

Buffington v. McDonough, 143 S. Ct. 14, 22 (2022)

(Gorsuch, J., dissenting from denial of certiorari)

(wondering if “Chevron maximalism has died of its own

weight and is already effectively buried”).

And the situation has recently gotten worse. For one

thing, although lower courts are still applying Chevron

until instructed otherwise, many are starting to ask aloud

whether the Court is “distancing itself,” ITServe All., Inc.

v. United States, 161 Fed. Cl. 276, 282 n.3 (2022), from a

framework that has “fallen out of favor,” Texas v. Becerra,

No. 5:22-CV-185-H, 2022 WL 3639525, at *19 n.11 (N.D.

Tex. Aug. 23, 2022). Case in point: In two decisions last

Term, the Court “seemed to silently adopt diluted

versions” of Chevron without citing it—even though the

lower courts had engaged the doctrine head-on. William

Yeatman, The Becerra Cases: How Not to Do Chevron,

CATO SUP. CT. REV., 2021-2022, at 98-100 (2022); see also

Texas, 2022 WL 3639525, at *19 n.11 (commenting that

both decisions involved circumstances “where Chevron

could have applied,” but “received no reference, let alone

deference”). This case shows that first-order confusion,

too. The majority recognized the “recent cases in which

the Supreme Court has not applied the [Chevron]

framework,” but correctly understood that only this Court

can revisit its own precedent. Pet.App.15; see also id. at

25 n.16.

Second-order questions are even more prolific. The onthe-ground reality is that “different judges have wildly

different conceptions of whether a particular statute is

clear or ambiguous.” Brett M. Kavanaugh, Fixing

7

Statutory Interpretation, 129 HARV. L. REV. 2118, 2152

(2016); see Buffington, 143 S. Ct. at 20 (Gorsuch, J.,

dissenting from denial of certiorari) (highlighting the

“ambiguity about ambiguity”).

Some courts are

increasingly finding ways to skip robust analyses under

Chevron and its progeny. See Daniel S. Brookins,

Confusion in the Circuit Courts: How the Circuit Courts

Are Solving the Mead-Puzzle by Avoiding It Altogether,

85 GEO. WASH. L. REV. 1484, 1497-99 (2017) (citing

holdings from several circuits). If not the whole story,

“incomprehensible criteria for Chevron deference” must

be at least part of the reason why. Coeur Alaska, Inc. v.

Se. Alaska Conservation Council, 557 U.S. 261, 296 (2009)

(Scalia, J., concurring in part and concurring in the

judgment).

Indeed, all sorts of differences brew when it comes to

deciding whether a statute is ambiguous. Courts use a

plethora of tests at Step 1, such as asking whether

Congress has spoken directly to the issue, deploying the

traditional tools of statutory construction, or (somewhere

in the middle) taking on a search for “plain meaning.”

Beermann, supra, at 817. The role, or not, of legislative

history is another question mark. Kristin Hickman &

David Hahn, Categorizing Chevron, 81 OHIO ST. L.J. 611,

632 (2020) (collecting cases illustrating how courts are

“divided” on this and other ambiguity-resolving

questions). So is how many steps are in the test: Lower

courts have adopted at least “three substantively distinct

versions of Chevron.” Richard M. Re, Should Chevron

Have Two Steps?, 89 IND. L.J. 605, 609, 634 (2014); see

also, e.g., Matthew Stephenson & Adrian Vermeule,

Chevron Has Only One Step, 95 VA. L. REV. 597, 597

(2009); Kenneth A. Bamberger & Peter L. Strauss,

Chevron’s Two Steps, 95 VA. L. REV. 611, 624-25 (2009);

Beermann, supra, at 832 (“Chevron may have three

8

steps”). Emphasis on “at least”: Another scholar suggests

a potential “four step test” has replaced the original.

William S. Jordan, III, Judicial Review of Informal

Statutory Interpretations: The Answer Is Chevron Step

Two, Not Christensen or Mead, 54 ADMIN. L. REV. 719,

725 (2002). And even if courts could agree on the number,

the order of the steps is up for debate, too. See Richard

Murphy, The Last Should Be First—Flip the Order of the

Chevron Two-Step, 22 WM. & MARY BILL RTS. J. 431, 434

(2013) (arguing that the “odd ordering” of the steps has

contributed to Chevron confusion).

Add to all that uncertainty over the myriad “exceptions

and caveats” to Chevron and when (if?) they apply.

Buffington, 143 S. Ct. at 20 (Gorsuch, J., dissenting from

denial of certiorari) (citing cases concerning missing

delegation of agency authority to “make rules with force

of law” (cleaned up)). The Court has “never held,” for

example, whether “the Government’s reading of a criminal

statute is entitled to any deference.” Guedes v. Bureau of

Alcohol, Tobacco, Firearms & Explosives, 140 S. Ct. 789,

790 (2020) (Gorsuch, J., statement regarding denial of

certiorari) (cleaned up). So too for cases “when liberty is

at stake.” Id.; see also, e.g., Michael Kagan, Chevron’s

Liberty Exception, 104 IOWA L. REV. 491, 495 (2019)

(noting that the Court has seemed to exempt from

Chevron certain agency interpretations implicating

fundamental liberties). And what about rules that intrude

into areas of traditional state authority? The lower courts

agree that agencies do not get deference for implied

regulatory preemption. See Grosso v. Surface Transp.

Bd., 804 F.3d 110, 116 (1st Cir. 2015). But beyond that,

courts run the gamut from requiring merely a

“reasonable” preemption explanation from the agency,

Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 319 (2d Cir.

2005), to insisting on a clear statement in the governing

9

statute greenlighting preemption, see, e.g., Tennessee v.

FCC, 832 F.3d 597, 610-12 (6th Cir. 2016).

Finally, no one agrees on how strong a hand Chevron

requires when it does apply. Even champions of broad

agency deference are “split” over whether Chevron is “an

inexorable command” or “‘a rule of thumb, guiding

courts … to respect that leeway which Congress intended

the agencies to have.’” Jonathan H. Adler, Shunting

Aside Chevron Deference, REGUL. REV. (Aug. 7, 2018),

https://bit.ly/2Ou4vAv (quoting SAS Inst., Inc., 138 S. Ct.

at 1364 (Breyer, J., dissenting)). Relatedly, lower courts

are conflicted whether Chevron is a waivable doctrine or a

mandatory rule; the D.C. Circuit is even divided within

itself on this point. See Jamie G. Judefind, Trouble in the

Tribunals: Exploring the Effects of Chevron One “Step”

at A Time, 27 WIDENER L. REV. 63, 72 (2021) (collecting

cases). The federal government is able to capitalize on the

confusion—increasingly seeking a favorable Chevron

ruling below, only to turn around and “waive[] or forfeit[]

arguments for Chevron deference” once the case reaches

the Court. Buffington, 143 S. Ct. at 21 (Gorsuch, J.,

dissenting from denial of certiorari). This Court has dealt

with situations like these, where the government is “of two

minds about the result it prefers,” Guedes, 140 S. Ct. at

790 (Gorsuch, J., statement regarding denial of certiorari)

(cleaned up), by “declin[ing] to consider whether any

deference is due,” HollyFrontier Cheyenne Refin., LLC v.

Renewable Fuels Ass’n, 141 S. Ct. 2172, 2180 (2021). But

the lower courts don’t know whether they can take that

tack, too.

B.

The uncertain state of play has practical

consequences that merit the Court’s attention: It harms

10

real people. The Court should not wait for the next case

to step in, but reconsider or rein in Chevron now.

It would be one thing if we were dealing with a rarely

invoked doctrine. But quite the opposite: Chevron “is the

most cited administrative law case in history.” Abbe R.

Gluck, What 30 Years of Chevron Teach Us about the Rest

of Statutory Interpretation, 83 FORDHAM L. REV. 607, 612

(2014). Almost a decade ago, cases and scholarship had

already referred to it tens of thousands of times. Id.

Since then, this Court has increasingly approached

these issues by engaging more closely with the relevant

statutes on their own terms—even fifteen years ago

Chevron’s prominence was “fading.” Linda Jellum,

Chevron’s Demise: A Survey of Chevron from Infancy to

Senescence, 59 ADMIN. L. REV. 725, 727 (2007); see also

William N. Eskridge, Jr. & Lauren E. Baer, The

Continuum of Deference: Supreme Court Treatment of

Agency Statutory Interpretations from Chevron to

Hamdan, 96 GEO. L.J. 1083, 1125 (2008) (explaining that

the Court did not “apply the Chevron framework in nearly

three-quarters of the cases where it would appear

applicable”). But the lower courts cannot take off illfitting doctrines at will. So they deal with the confusion by

finding ambiguity in the “vast majority” of cases before

them—and then deferring to the agency. Kent Barnett &

Christopher J. Walker, Chevron in the Circuit Courts, 116

MICH. L. REV. 1, 33 (2017). Around 70% of agencyinterpretation challenges make it past Step 1, and courts

go on to uphold the agency’s view over 93% of the time.

Id.

In other words, thanks to Chevron, the federal

government usually wins. The problem with that is when

victory follows unearned deference—when courts defer

too quickly, presuming agencies may fill in the statutory

11

gaps instead of rigorously testing whether Congress

delegated that power. Indeed, pervasive “uncertainty in

the lower courts” makes it “all too often” the case that

“courts abdicate th[eir] duty by rushing to find statutes

ambiguous, rather than performing a full interpretive

analysis.” Arangure v. Whitaker, 911 F.3d 333, 336, 339

(6th Cir. 2018). So as it exists now, Chevron gives a strong

default in favor of regulation with not enough confidence

Congress intended that result.

This problem is not academic. Right or wrong, the

lower courts treat Chevron as a heavy thumb on the

federal government’s side of the scale. The real-world

result? Agencies have all the incentives to push expansive

constructions of their governing statutes. After all, if

agencies—and the administrations most of them answer

to—know that lower courts will almost certainly defer to

a plausible interpretation, it is hard to hold the line on a

more restrained view of agency power. See Kavanaugh,

supra, at 2150 (broad deference doctrines “encourage[]

the Executive Branch ... to be extremely aggressive in

seeking to squeeze its policy goals into ill-fitting statutory

authorizations and restraints”).

Even more when administrations change and the next

set of officials come in to “undo the ambitious work of their

predecessors” by “proceed[ing] in the opposite direction

with equal zeal.” See Buffington, 143 S. Ct. at 20

(Gorsuch, J., dissenting from denial of certiorari).

Changed agency priorities are not inherently wrong, of

course—and we have seen a lot of them as presidents ask

federal agencies to enact “partisan policy agendas” that

are otherwise “stymied by congressional stalemate.”

Gillian E. Metzger, Agencies, Polarization, and the

States, 115 COLUM. L. REV. 1739, 1742 (2015). But by

encouraging ever-more-ambitious theories of agency

12

power, Chevron expands the range. Now, waffling from

one aggressive construction to its opposite becomes a

whipsaw.

That’s a bad place to be. Litigation is expensive and

can take years; the countless challenges involving

Chevron seem a poor investment when lower courts

virtually always defer to the work of another Branch.

More to the point, regulation is expensive. And when the

uncertainty in the law favors over-regulation, not under,

our residents and businesses pay the higher price.

In this case, the agency estimated the costs to herring

fishers at $710 a day, “which in the aggregate could reduce

annual returns by approximately 20 percent.” Pet.App.4

(cleaned up). More broadly, small businesses shell out an

annual average of $11,700 per employee in federal

regulatory costs, with the smallest among them paying

almost 20% more “than the average for all firms.” U.S.

CHAMBER OF COM. FOUND., UNDERSTANDING SMALL

BUSINESS IN AMERICA 6 (2017), available at

https://bit.ly/2MaFaOC. This amounts to “over $40 billion

per year” in direct spending on “federal economically

significant rules.” Id. “[T]hat’s billion with a b.” White

Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1259

(D.C. Cir. 2014) (Kavanaugh, J., concurring in part and

dissenting in part), rev’d sub nom., Michigan, supra.

Adding in “lost productivity” and “higher prices,” the total

charge federal regulators foist on the American economy

is more like $1.9 trillion a year. U.S. CHAMBER OF COM.

FOUND., supra, at 4, 8. And that figure counts only frontend efforts: Depending on the statute, even “inadvertent

violations” of a regulation can trigger “crushing” “criminal

penalties and steep civil fines.” Cnty. of Maui v. Haw.

13

Wildlife Fund, 140 S. Ct. 1462, 1489 (2020) (Alito, J.,

dissenting).

All this gets worse when rules governing investmentheavy decisions change more often and more dramatically.

Regulatory uncertainty can “threaten[] existing

investments in regulatory compliance” and discourage

potential investors—especially “if they foresee a

substantial risk that” policy shifts will “reduce or

eliminate their return.” Richard J. Pierce, Jr., The

Combination of Chevron and Political Polarity Has

Awful Effects, 70 DUKE L.J. ONLINE 91, 99 (2021).

Investment chill sets in because “change in the

background regulatory rules governing an industry is

likely to upset the settled expectations of the firms and

interested groups,” causing “disruptions and increased

costs as pre-existing programs become unworkable and

new projects become necessary.” Jonathan Masur,

Judicial Deference and the Credibility of Agency

Commitments, 60 VAND. L. REV. 1021, 1041 (2007). In

other words, “stability encourages investment.” Aaron L.

Nielson, Sticky Regulations, 85 U. CHI. L. REV. 85, 90, 122

(2018). So in a real sense, companies might prefer even a

burdensome but static rule to wide regulatory swings.

Some, in fact, have ultimately won challenges to agency

regulations, only to ask that the challenged limit stay “in

effect to protect the investments [they] had made … to

comply with” it. Pierce, supra, at 99-100.

Next come notice concerns. Stable legal doctrine

provides “non-judicial actors” with critical “guidance … in

predicting future judicial behavior.” Thomas W. Merrill,

Judicial Opinions as Binding Law and as Explanations

for Judgments, 15 CARDOZO L. REV. 43, 62 (1993). But the

many ways courts approach Chevron mean that different

judges often reach different outcomes—“even though

14

they may actually agree on what is the best reading of the

statutory text.” Kavanaugh, supra, at 2153 (emphasis in

original). So regulated people and businesses have to do

more than “conform their conduct to the fairest reading of

the law that a detached magistrate can muster.”

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

Cir. 2016) (Gorsuch, J., concurring). They have “to guess

whether the statute will be declared ‘ambiguous’” against

a flurry of competing legal theories, and then guess

“whether an agency’s interpretation will be deemed

‘reasonable.’” Id. All while also “remain[ing] alert to the

possibility that the agency will reverse its current view 180

degrees anytime” and “still prevail.” Id. (emphasis in

original).

These costs would be weighty even if the States’

representatives in Congress had chosen to impose them

through legislation. But when the muddled state of

Chevron deference lets agencies slip them through in

ways that exceed Congress’s mandate, the price climbs too

high. The Court should intervene.

* * * *

A final note. Though the costs of staying Chevron’s

current course are real, the Court need not take an

entirely uncharted path to avoid them. Some States have

watched the federal Chevron doctrine develop over time—

and opted out.

Michigan’s high court, for example, emphasized how

“very difficult” “Chevron[’s] inquiries are” “to apply,” and

concluded that “[t]he vagaries of Chevron jurisprudence

d[id] not provide a clear road map” to justify “import[ing]”

it into state law. In re Complaint of Rovas Against SBC

Michigan, 754 N.W.2d 259, 271-72 (Mich. 2008). Michigan

is not alone. See, e.g., Pub. Water Supply Co. v.

15

DiPasquale, 735 A.2d 378, 382 (Del. 1999) (“Statutory

interpretation is ultimately the responsibility of the

courts.”). In fact, “no state expressly adopts the ‘Chevron

two-step.’” Michael Pappas, No Two-Stepping in the

Laboratories: State Deference Standards and Their

Implications for Improving the Chevron Doctrine, 39

MCGEORGE L. REV. 977, 986 (2008). That reality is not

that surprising: Many States realize that the “deference

doctrines … are discordant with the separation of powers

in their respective state constitutions.” Luke Phillips,

Chevron in the States? Not So Much, 89 MISS. L.J. 313,

365 (2020). In fact, “the states that apply no deference or

a lesser form of deference outnumber the Chevron-type of

deference standards by a ratio of greater than 2-to-1.” Id.

at 364.

Those States and their agencies appear to be doing just

fine, even with an “upsurge in declarations of de novo

review for agency interpretations of statutes.” Phillips,

supra, at 365. So if the Court jettisons Chevron, federal

law can adjust in the same ways, too.

II.

The Decision Below Is A Strong Vehicle To

Correct Chevron’s Confusion.

Any number of cases in any Term would let the Court

take on the serious problem of Chevron confusion. This

one is a particularly good option: It highlights even more

of the troubling aspects of unchecked agency deference.

Here, the National Marine Fisheries Service insists that

statutory silence gives it power not only to regulate with a

heavy hand, but to force the industry to fund its

enforcement. Both lower courts accepted this suspect

view of ambiguity to bless this novel brand of self-funding.

So taking up this case offers value even if the Court

ultimately leaves Chevron to live another day. The Court

16

still can—and should—clarify that deference has no place

under circumstances like these.

First, the D.C. Circuit majority should not have

deferred to the agency’s power grab from silence. As the

dissent explained, “[a]ll else equal, silence indicates a lack

of authority.” Pet.App.26. Courts have a “duty to respect

not only what Congress wrote but, as importantly, what it

didn’t write.” Va. Uranium, Inc. v. Warren, 139 S. Ct.

1894, 1900 (2019) (plurality op.); see also, e.g., Little

Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 140 S. Ct. 2367, 2381 (2020) (“It is a

fundamental principle of statutory interpretation that

absent provisions cannot be supplied by the courts.”

(cleaned up)). So when a statute “says nothing” on an

issue,” courts generally do not “conclude that what

Congress omitted from the statute is nevertheless within

its scope.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 353 (2013). That rule has particular resonance here,

where Congress was not silent in other parts of the

statute, but authorized industry-funded monitors in three

particular circumstances—and in two of them, protected

regulated parties through express financial caps. 16

U.S.C. § 1821(h)(1)(A), (4); id. §§ 1853a(c)(1)(H), (d)(2)(B),

(e)(2); id. § 1862(a). When it comes to other circumstances

like those the agency chose to address, the expressio

unius canon confirms that Congress’s silence controls.

Pet.30.

Matters of delegation are no different on this score

than statutory construction more generally: “Congress

does not delegate authority merely by withholding it.”

Gulf Fishermens Ass’n v. Nat’l Marine Fisheries Serv.,

968 F.3d 454, 456 (5th Cir. 2020). Otherwise, gap-filling

power could effectively flip the rule that agencies can do

only what Congress allows into a license to do whatever

17

Congress does not forbid. “That theory has it backwards.”

Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082

(D.C. Cir. 2017). It is also dangerous. More often than

others, agency actions promulgated through silence

amount to attempts to assert more or new power. See

Nathan Alexander Sales & Jonathan H. Adler, The Rest

Is Silence: Chevron Deference, Agency Jurisdiction, and

Statutory Silences, 2009 U. ILL. L. REV. 1497, 1559 (2009).

And they tend to affect larger classes of people or greater

segments of an industry instead of only “a few discrete

players.” See id. at 1559-60.

The Court should make clear that if Chevron applies, it

does not allow a court to find ambiguity from silence in a

case like this.

Second, deferring to a rule forcing regulated parties to

bear the costs of enforcement dilutes Congress’s power of

the purse when it comes to agency accountability. The

dissent homes in on the problem: An expansive view of the

“necessary and appropriate” language at the heart of this

case could “undermine” financial accountability by

allowing an “agency [to] continue to operate” through

“independent contractors” in the event Congress were to

“entirely defund” the agency’s “compliance components.”

Pet.App.32. Here, the agency pointed to “no other context

in which an agency, without express direction from

Congress, requires an industry to fund its inspection

regime.” Pet.App.29. Its novel approach should have

caught the majority’s eye. Copied elsewhere, just about

every federal agency could unilaterally expand its reach

by imposing direct levies on any regulated entities before

it.

The Appropriations Clause, U.S. CONST. art. I, § 9, cl.

7, may be “the most complete and effectual weapon with

which any constitution can arm the immediate

18

representatives of the people.” THE FEDERALIST NO. 58

(James Madison). Through it, Congress—and only

Congress—can fund or defund any part of an agency’s

activity or personnel. This power is a crucial check on

administrative authority. Even though Congress may

greenlight agency action generally through a statute, if

appropriations don’t follow, neither does rulemaking or

enforcement. Congress has acted on this latent threat

before. See, e.g., Rachel E. Barkow, Insulating Agencies:

Avoiding Capture Through Institutional Design, 89 TEX.

L. REV. 15, 66-67 (2010) (discussing cuts to Consumer

Product Safety Commission funding that reduced the

agency’s ability to conduct investigations and enforce new

regulatory scheme).

When it comes to agency

accountability, then, the Appropriations Clause is a way to

ensure that “[f]oxes [do] not guard henhouses.” Cass

Sunstein, Interpreting Statutes in the Regulatory State,

103 HARV. L. REV. 405, 446 (1989). Deferring to an

agency’s purported power to self-fund lets the fox both

build the henhouse and buy the hens.

Here, it was bad enough that the majority allowed the

agency to fund its own enforcement efforts without any

“straightforward and explicit command” from Congress.

OPM v. Richmond, 496 U.S. 414, 424 (1990). Worse still,

it signed off even though the agency is not selfappropriating public dollars, but requiring private parties

to foot the bill. The majority should have been especially

cautious before deferring to an agency’s assertion of

quasi-taxation power—particularly when, again, the most

it had in support was statutory silence.

Over the years, the Court has confirmed what has been

true from the beginning of our Republic: “Taxation is a

legislative function,” and Congress “is the sole organ for

levying taxes.” Nat’l Cable Television Ass’n, Inc. v.

19

United States, 415 U.S. 336, 340 (1974). In James

Madison’s words, “the legislative department alone has

access to the pockets of the people.” THE FEDERALIST

NO. 48. And the Court has already “wondered aloud”

whether an agency’s attempt to “charg[e] for the

protective services it offered the public” “could pass

constitutional muster.” Am. Fed’n of Lab. & Cong. of

Indus. Orgs. v. Kahn, 618 F.2d 784, 811-12 (D.C. Cir. 1979)

(MacKinnon, J., dissenting) (citing Nat’l Cable Television

Ass’n, Inc., 415 U.S. at 340-41). This case is ripe to tackle

the question directly. Taking it up and resolving the

length of Chevron’s reach can provide needed clarity on

this critical issue, too. After all, in this as in so many other

ways, the “slow eclipse of Congress by … mounting

Executive power,” Cal. Bankers Ass’n v. Shultz, 416 U.S.

21, 91 (1974) (Douglas, J., dissenting), is as serious for the

States as it gets.

So the Court should grant the Petition regardless

whether it decides that Chevron’s number is up. At a

minimum, it should give the lower courts clear direction

“to put greater effort into the textual investigation at step

one before they rush on to the (easier) task of deciding

whether to defer to the agency at step two.” Yeatman,

supra, at 101-02. Either way, we urge the Court to start

down a better path now.

20

CONCLUSION

The Court should grant the Petition.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

GRANT A. NEWMAN*

Special Assistant

MAX A. SCHREIBER**

Fellow

*admitted in Michigan;

practicing under supervision of

West Virginia attorneys

**admitted in Indiana;

practicing under supervision of

West Virginia attorneys

Counsel for Amicus Curiae State of West Virginia

21

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

LYNN FITCH

Attorney General

State of Mississippi

TREG TAYLOR

Attorney General

State of Alaska

ERIC SCHMITT

Attorney General

State of Missouri

LESLIE RUTLEDGE

Attorney General

State of Arkansas

AUSTIN KNUDSEN

Attorney General

State of Montana

LAWRENCE WASDEN

Attorney General

State of Idaho

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

TODD ROKITA

Attorney General

State of Indiana

ALAN WILSON

Attorney General

State of South Carolina

DEREK SCHMIDT

Attorney General

State of Kansas

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

DANIEL CAMERON

Attorney General

State of Kentucky

JEFF LANDRY

Attorney General

State of Louisiana

KEN PAXTON

Attorney General

State of Texas

SEAN D. REYES

Attorney General

State of Utah

22

JASON MIYARES

Attorney General

State of Virginia