Petitioners Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.
Supreme Court briefJul 17, 2023
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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 Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia
________________
BRIEF FOR PETITIONERS
________________
RYAN P. MULVEY
PAUL D. CLEMENT
ERIC R. BOLINDER
Counsel of Record
R. JAMES VALVO, III
ANDREW C. LAWRENCE*
CAUSE OF ACTION
CHADWICK J. HARPER*
CLEMENT & MURPHY, PLLC
INSTITUTE
1310 N. Courthouse Rd. 706 Duke Street
Suite 700
Alexandria, VA 22314
Arlington, VA 22201
(202) 742-8900
paul.clement@clementmurphy.com
*Supervised by principals of the
firm who are members of the
Virginia bar
July 17, 2023
Counsel for Petitioners
QUESTION 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 well-established 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 question presented is:
Whether the Court should overrule Chevron or at
least clarify that statutory silence concerning
controversial powers expressly but narrowly granted
elsewhere in the statute does not constitute an
ambiguity requiring deference to the agency.
ii
PARTIES TO THE PROCEEDING
Petitioners (plaintiffs-appellants below) are Loper
Bright Enterprises, Inc.; H&L Axelsson, Inc.; Lund
Marr Trawlers LLC; and Scombrus One LLC.
Respondents (defendants-appellees below) are
Gina Raimondo, in her official capacity as Secretary of
Commerce; the Department of Commerce; Richard
Spinrad, in his official capacity as Administrator of
the
National
Oceanic
and
Atmospheric
Administration (NOAA); NOAA; Chris Oliver, in his
official capacity as Assistant Administrator for NOAA
Fisheries; and the National Marine Fisheries Service.
iii
CORPORATE DISCLOSURE STATEMENT
Petitioners have no parent corporations, and no
shareholders own 10% or more of their stock.
iv
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING ........................... ii
CORPORATE DISCLOSURE STATEMENT ........... iii
TABLE OF AUTHORITIES ...................................... vi
INTRODUCTION ....................................................... 1
OPINIONS BELOW ................................................... 3
JURISDICTION ......................................................... 3
CONSTITUTIONAL
AND
STATUTORY
PROVISIONS INVOLVED...................................... 3
STATEMENT OF THE CASE ................................... 3
A. Historical Background ................................. 3
B. Statutory Background .................................. 7
C. Factual and Procedural Background ......... 11
SUMMARY OF ARGUMENT .................................. 15
ARGUMENT ............................................................. 18
I.
The Court Should Overrule Chevron ................ 18
A. Chevron Is Entitled to Little, If Any,
Stare Decisis Effect ..................................... 18
B. In All Events, Every Stare Decisis
Consideration Militates in Favor of
Overruling Chevron .................................... 22
1. Chevron is egregiously wrong.............. 23
2. Chevron has caused significant
negative jurisprudential and realworld consequences ............................. 32
3. Overruling Chevron would not upset
reliance interests ................................. 40
v
II. At A Bare Minimum, The Court Should
Clarify That Chevron Is Not Triggered By
Statutory Silence ............................................... 43
III. In Either Event, The Court Should Reverse
Rather Than Remand ........................................ 47
CONCLUSION ......................................................... 52
APPENDIX
U.S. Const., art. I, §1 ................................................ 1a
U.S. Const., art. II, §1 .............................................. 1a
U.S. Const., art. III, §1 ............................................. 1a
U.S. Const., amend. V .............................................. 1a
5 U.S.C. §706 ............................................................ 2a
16 U.S.C. §1821(h) .................................................... 3a
16 U.S.C. §1853(a)-(b) .............................................. 6a
16 U.S.C. §1853a(c)(1), (e) ...................................... 16a
16 U.S.C. §1862(a)-(b), (d)-(e) ................................. 19a
vi
TABLE OF AUTHORITIES
Cases
Ala. Ass’n of Realtors v. HHS,
141 S.Ct. 2485 (2021)............................................. 50
Allen v. Milligan,
2023 WL 3872517 (U.S. June 8, 2023) .................. 19
Am. Hosp. Ass’n v. Becerra,
142 S.Ct. 1896 (2022)......................................... 7, 35
Aposhian v. Wilkinson,
989 F.3d 890 (10th Cir. 2021)................................ 35
Aqua Prod., Inc. v. Matal,
872 F.3d 1290 (Fed. Cir. 2017) .............................. 22
Baldwin v. United States,
140 S.Ct. 690 (2020)........................................... 7, 31
Bartenwerfer v. Buckley,
143 S.Ct. 665 (2023)............................................... 46
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist.
v. Grumet,
512 U.S. 687 (1994).......................................... 35, 36
Becerra v. Empire Health Found.,
for Valley Hosp. Med. Ctr.,
142 S.Ct. 2354 (2022)............................................... 7
Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics,
403 U.S. 388 (1971)................................................ 20
Buffington v. McDonough,
143 S.Ct. 14 (2022)....................................... 7, 41, 43
Burnet v. Chicago Portrait Co.,
285 U.S. 1 (1932).................................................... 31
vii
Calder v. Bull,
3 U.S. (3 Dall.) 386 (1798) ..................................... 27
Cargill v. Garland,
57 F.4th 447 (5th Cir. 2023) .................................. 35
CBOCS W., Inc. v. Humphries,
553 U.S. 442 (2008)................................................ 41
Chevron, U.S.A., Inc.
v. Nat. Res. Defense Council, Inc.,
467 U.S. 837 (1984)............ 1, 5, 6, 19, 23, 25, 26, 31
Citizens United v. FEC,
558 U.S. 310 (2010)................................................ 40
City of Arlington v. FCC,
569 U.S. 290 (2013)............................................ 7, 39
Collins v. Yellen,
141 S.Ct. 1761 (2021)............................................. 24
CSX Transp. v. United States,
867 F.2d 1439 (D.C. Cir. 1989) ................................ 6
Decatur v. Paulding,
39 U.S. (14 Pet.) 497 (1840) ................................... 30
Edwards’ Lessee v. Darby,
25 U.S. 206 (1827).................................................. 31
Egan v. Delaware River Port Auth.,
851 F.3d 263 (3d Cir. 2017) ....................... 22, 28, 37
Franchise Tax Bd. v. Hyatt,
139 S.Ct. 1485 (2019)............................................. 18
Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives,
140 S.Ct. 789 (2020)............................................... 39
Gutierrez de Martinez v. Lamagno,
515 U.S. 417 (1995)................................................ 27
viii
Gutierrez-Brizuela v. Lynch,
834 F.3d 1142 (10th Cir. 2016).. 7, 21, 26, 38, 40, 44
Hayburn’s Case,
2 U.S. (2 Dall.) 408 (1792) ..................................... 25
Hohn v. United States,
524 U.S. 236 (1998)................................................ 22
In re Murchison,
349 U.S. 133 (1955)................................................ 27
Intel Corp. Inv. Pol’y Comm. v. Sulyma,
140 S.Ct. 768 (2020)............................................... 49
J. I. Case Co. v. Borak,
377 U.S. 426 (1964)................................................ 20
Janus v. Am. Fed’n of State, Cnty.,
and Mun. Emps. Council 31,
138 S.Ct. 2448 (2018)............................................. 40
Kennedy v. Bremerton Sch. Dist.,
142 S.Ct. 2407 (2022)............................................. 22
Kimble v. Marvel Ent., LLC,
576 U.S. 446 (2015)................................................ 41
King v. Burwell,
576 U.S. 473 (2015)................................................ 35
Kisor v. Wilkie,
139 S.Ct. 2400 (2019)....................................... 29, 42
La. Pub. Serv. Comm’n v. FCC,
476 U.S. 355 (1986)................................................ 44
Maine Lobstermen’s Ass’n v. NMFS,
2023 WL 4036598 (D.C. Cir. June 16, 2023) ........ 46
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ................................. 24
ix
Marx v. Gen. Revenue Corp.,
568 U.S. 371 (2013)................................................ 48
Mexican Gulf Fishing v. U.S. Dep’t of Com.,
60 F.4th 956 (5th Cir. 2023) .................................. 22
Michigan v. EPA,
576 U.S. 743 (2015).......................................... 26, 39
Miller v. Johnson,
515 U.S. 900 (1995)................................................ 29
Mistretta v. United States,
488 U.S. 361 (1989).......................................... 27, 45
Mozilla Corp. v. FCC,
940 F.3d 1 (D.C. Cir. 2019) .................................... 40
Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs.,
545 U.S. 967 (2005).......................................... 19, 31
NFIB v. OSHA,
142 S.Ct. 661 (2022)......................................... 44, 50
Patterson v. McLean Credit Union,
491 U.S. 164 (1989)................................................ 18
Payne v. Tennessee,
501 U.S. 808 (1991)................................................ 22
Pearson v. Callahan,
555 U.S. 223 (2009).......................................... 21, 22
Pereira v. Sessions,
138 S.Ct. 2105 (2018)......................................... 7, 33
Perez v. Mortg. Bankers Ass’n,
575 U.S. 92 (2015)........................................ 7, 28, 34
Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995).......................................... 26, 51
x
Printz v. United States,
521 U.S. 898 (1997)................................................ 51
Ramos v. Louisiana,
140 S.Ct. 1390 (2020)........................... 18, 23, 32, 40
Republic of Sudan v. Harrison,
139 S.Ct. 1048 (2019)............................................. 46
South Dakota v. Wayfair, Inc.,
138 S.Ct. 2080 (2018)............................................. 42
Stern v. Marshall,
564 U.S. 462 (2011)................................................ 25
TransUnion LLC v. Ramirez,
141 S.Ct. 2190 (2021)............................................. 24
U.S. Dep’t of Navy v. Fed. Lab. Rels. Auth.,
665 F.3d 1339 (D.C. Cir. 2012) .............................. 51
United States v. Gaudin,
515 U.S. 506 (1995).......................................... 18, 21
United States v. Hansen,
2023 WL 4138994 (U.S. June 23, 2023) ................ 51
United States v. Havis,
907 F.3d 439 (6th Cir. 2018).................................. 28
United States v. Mead Corp.,
533 U.S. 218 (2001)...................................... 4, 28, 34
United States v. Moore,
95 U.S. 760 (1877).................................................. 31
United States v. Texas,
2023 WL 4139000 (U.S. June 23, 2023) .......... 29, 51
United States v. Wiltberger,
18 U.S. (5 Wheat.) 76 (1820) ................................. 38
Valent v. Comm’r of Soc. Sec.,
918 F.3d 516 (6th Cir. 2019).................................. 22
xi
Waterkeeper All. v. EPA,
853 F.3d 527 (D.C. Cir. 2017) ................................ 22
Wayman v. Southard,
23 U.S. (10 Wheat.) 1 (1825) ................................. 26
West Virginia v. EPA,
142 S.Ct. 2587 (2022)........................... 36, 37, 45, 50
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001).......................................... 26, 45
Constitutional Provisions
U.S. Const. Art. I ................................................ 24, 45
U.S. Const. Art. II ..................................................... 24
U.S. Const. Art. III ................................................... 24
Statutes
5 U.S.C. §706 .................................................. 4, 28, 29
16 U.S.C. §1801 et seq. ................................... 8, 48, 50
16 U.S.C. §1802 ................................................ 8, 9, 10
16 U.S.C. §1821 .................................................. 10, 47
16 U.S.C. §1852 ................................................ 8, 9, 11
16 U.S.C. §1853 ................................................ 8, 9, 10
16 U.S.C. §1853a ...................................................... 47
16 U.S.C. §1854 .............................................. 8, 10, 50
16 U.S.C. §1855 .......................................................... 7
16 U.S.C. §1858 ........................................................ 11
16 U.S.C. §1862 .................................................... 9, 50
28 U.S.C. §1 ................................................................ 1
28 U.S.C. §1254 .......................................................... 3
Pub. L. No. 94-265, §303,
Apr. 13, 1976, 90 Stat. 331 .................................... 49
xii
Pub. L. No. 101-627, §118,
Nov. 28, 1990, 104 Stat. 4436................................ 49
Regulations
50 C.F.R. §600.506.................................................... 10
79 Fed. Reg. 8,786 (Feb. 13, 2014) ........................... 11
83 Fed. Reg. 47,326 (Sept. 19, 2018) ........................ 12
83 Fed. Reg. 55,565 (Nov. 7, 2018)........................... 11
85 Fed. Reg. 7,414 (Feb. 7, 2020) ........... 12, 13, 39, 50
Other Authorities
Aditya Bamzai, The Origins of Judicial
Deference to Executive Interpretation,
126 Yale L.J. 908 (2017) .................... 3, 4, 25, 29, 30
Amy Coney Barrett, Substantive Canons and
Faithful Agency,
90 B.U. L. Rev. 109 (2010) ............................... 44, 45
Anita S. Krishnakumar, Metarules for
Ordinary Meaning, 134 Harv. L. Rev. F.
167 (2021) ............................................................... 19
Antonin Scalia, Judicial Deference to
Administrative Interpretations of Law,
1989 Duke L.J. 511 (1989)..................................... 33
Brett M. Kavanaugh, Fixing Statutory
Interpretation,
129 Harv. L. Rev. 2118 (2016) .. 7, 27, 29, 33, 35, 36,
38
Caleb Nelson, Originalism and Interpretive
Conventions, 70 U. Chi. L. Rev. 519 (2003) .... 25, 32
Cass R. Sunstein, et al., Judicial Review of
Administrative Action in a Conservative
Era, 31 Admin. L. Rev. 353 (1987) .......................... 6
xiii
Cass R. Sunstein, Law and Administration
After Chevron, 90 Colum. L. Rev. 2071
(1990) ...................................................................... 25
Clark Byse, Judicial Review of
Administrative Interpretation of Statutes:
An Analysis of Chevron’s Step Two, 2
Admin. L.J. 255 (1988) ............................................ 6
Cynthia R. Farina, Statutory Interpretation
and the Balance of Power in the
Administrative State,
89 Colum. L. Rev. 452 (1989) .................................. 5
David J. Barrron & Elena Kagan, Chevron’s
Nondelegation Doctrine, 2001 Sup. Ct. Rev.
201 (2001) ......................................................... 23, 25
David S. Tatel, The Administrative Process
and the Rule of Environmental Law,
34 Harv. Envtl. L. Rev. 1 (2010) ........................... 36
Dep’t of Com., Secretary of Commerce Issues
Fishery Disaster Determination for 2019
Atlantic Herring Fishery (Nov. 22, 2021),
https://perma.cc/HP3P-L48E ................................. 39
Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, No. 22-1222 (U.S.
pet. for cert. filed June 14, 2023) .......................... 35
H.R. 1554, 101st Cong. §2 (1989) ............................. 50
H.R. 39, 104th Cong. §9 (1995) ................................ 50
H.R. 5018, 109th Cong. §9 (2006) ............................ 50
Jack M. Beerman, End the Failed Chevron
Experiment Now: How Chevron Has Failed
and Why It Can and Should Be Overruled,
42 Conn. L. Rev. 779 (2010) ........................ 4, 35, 41
xiv
Jessica Hathaway, “Feds Declare East Coast
Herring Fishery a Disaster,” National
Fisherman (Nov. 23, 2021),
https://perma.cc/BU5B-6JJ4 ................................. 48
John F. Duffy, Administrative Common Law
in Judicial Review, 77 Tex. L. Rev. 113
(1998) ...................................................................... 29
Jonathan R. Siegel, The Polymorphic
Principle and the Judicial Role in Statutory
Interpretation, 84 Tex. L. Rev. 339 (2005) ............ 19
Kent Barnett & Christopher J. Walker,
Chevron in the Circuit Courts, 116 Mich. L.
Rev. 1 (2017) .......................................................... 33
Kristin E. Hickman & Aaron L. Nielson,
Narrowing Chevron’s Domain, 70 Duke
L.J. 931 (2021) ....................................................... 44
Kristin E. Hickman & R. David Hahn,
Categorizing Chevron,
81 Ohio St. L.J. 611 (2020) .................................... 19
Kristin E. Hickman, The Three Phases of
Mead, 83 Fordham L. Rev. 527 (2014) .................. 34
Michael B. Rappaport, Chevron and
Originalism: Why Chevron Deference
Cannot Be Grounded in the
Original Meaning of the Administrative
Procedure Act,
57 Wake Forest L. Rev. 1281 (2022) ....... 3, 4, 30, 31
Nathan Alexander Sales & Jonathan H.
Adler, The Rest Is Silence: Chevron
Deference, Agency Jurisdiction, and
Statutory Silences,
2009 U. Ill. L. Rev. 1497 (2009)............................. 38
xv
NOAA Fisheries, Alaska,
https://perma.cc/4WEC-328H (last visited
July 17, 2023) ......................................................... 47
Overruling Chevron Could Make Congress
Great Again, The Reg. Rev. (Sept. 12,
2018), https://perma.cc/7HEZ-EDJH .................... 37
Philip Hamburger, Chevron Bias, 84 Geo.
Wash. L. Rev. 1187 (2016) ............................... 27, 28
Randy J. Kozel, Statutory Interpretation,
Administrative Deference, and the Law of
Stare Decisis, 97 Tex. L. Rev. 1125 (2019) ...... 20, 41
Raymond M. Kethledge, Ambiguities and
Agency Cases: Reflections After (Almost)
Ten Years on the Bench, 70 Vand. L. Rev.
En Banc 315 (2017)................................................ 33
Richard J. Pierce, Jr., The Combination of
Chevron and Political Polarity Has Awful
Effects, 70 Duke L.J. Online 91 (2021) ........... 37, 39
Richard M. Re, Personal Precedent at the
Supreme Court, 136 Harv. L. Rev. 824
(2023) ...................................................................... 21
Ronald A. Cass, Chevron—Complicated,
Start to Finish, 23 Federalist Soc’y Rev.
265 (2022) ............................................................... 32
Ryan D. Doerfler, Late-Stage Textualism,
2021 Sup. Ct. Rev. 267 (2021) ................................. 7
Sanford N. Caust-Ellenbogen, Blank Checks:
Restoring the Balance of Powers in the PostChevron Era, 32 B.C. L. Rev. 757 (1991) ................ 6
The Federalist No. 10
(Clinton Rossiter ed., 2003) ................................... 27
xvi
The Federalist No. 37
(Clinton Rossiter ed., 2003) ................................... 24
The Federalist No. 47
(Clinton Rossiter ed., 2003) ................................... 24
The Federalist No. 78
(Clinton Rossiter ed., 2003) ................................... 25
Thomas W. Merrill, The Story of Chevron:
The Making of an Accidental Landmark,
66 Admin. L. Rev. 253 (2014) .................................. 5
Tr. of Oral Arg., Am. Hosp. Ass’n v. Becerra,
No. 20-1114 ............................................................ 33
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) ........................................ 20
INTRODUCTION
Almost forty years ago, a six-Justice Court—the
bare minimum for a quorum, see 28 U.S.C. §1—issued
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), which announced a
novel two-step procedure for examining whether an
administrative agency’s interpretation of a statute is
lawful. At step one, a court must assess whether the
statutory language is “clear” and, if so, give effect to
the clear terms. But if the statutory language is
“silent or ambiguous,” then—at step two—a court is
prohibited from resolving the legal question itself as it
would in any other case, and instead must defer to the
agency’s interpretation. That remains true even if the
court does not view the agency’s interpretation as the
best one and even if the agency’s interpretation is a
180-degree reversal of its prior views.
Ever since, judges, litigants, and scholars have
struggled not only to apply Chevron, but to reconcile it
with the Constitution, the Administrative Procedure
Act (APA), and the historical record. This Court is no
exception.
The Court has spent years issuing
decisions that sought to resolve the Chevron debate du
jour, but those efforts generated only more debates
and more confusion, leading many Justices to question
the whole enterprise. Today, the Court seemingly has
such intense misgivings about Chevron that it no
longer cites it even when it would seem to govern.
Because Chevron remains on the books, however,
administrative agencies continue to churn out
regulations premised on aggressive, newfound
2
readings of statutes, and lower courts continue to feel
obligated to afford agencies “Chevron deference”
unless and until this Court explicitly says otherwise.
This case is a prime example. In the statute at issue,
Congress authorized the National Marine Fisheries
Service (NMFS) to require commercial fishing vessels
to “carry” federal observers onboard to enforce agency
regulations.
But, recognizing that requiring
fishermen to pay observer salaries is extraordinary,
Congress expressly sanctioned such payments only in
three narrow circumstances and capped the payment
obligations for domestic vessels at 2-3% of the value of
their hauls. Nonetheless, seizing on the statute’s
“silence” and purported “ambiguity,” NMFS declared
that domestic vessels in the Atlantic herring fishery
would have to cede upwards of 20% of their returns to
pay observer salaries. Although the D.C. Circuit
unanimously agreed that Congress never explicitly
authorized this crushing regulation, and although it
unanimously acknowledged this Court’s reluctance to
apply Chevron, a panel majority upheld it under
Chevron anyway.
That result is intolerable, and the Court should
jettison Chevron altogether—or at least narrow its
scope.
Indeed, while Chevron’s interpretive
methodology does not trigger ordinary stare decisis
analysis, every stare decisis consideration favors
overruling it. At a bare minimum, the Court should
clarify that statutory silence does not trigger Chevron,
least of all when the silence concerns the grant of a
controversial power that Congress has explicitly but
narrowly conferred elsewhere. Either way, this Court
should reverse the decision below, as there is no basis
to regulate herring fishermen out of business once the
3
statute is given a fair reading without the tie going to
the agency.
OPINIONS BELOW
The D.C. Circuit’s opinion is reported at 45 F.4th
359. Pet.App.1-37. The district court’s opinion is
reported at 544 F.Supp.3d 82. Pet.App.38-114.
JURISDICTION
The D.C. Circuit issued its opinion on August 12,
2022. Petitioners timely filed a petition for certiorari
on November 10, 2022. This Court has jurisdiction
under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Relevant constitutional and statutory provisions
are included in the appendix.
STATEMENT OF THE CASE
A. Historical Background
Before 1875, federal courts lacked general federalquestion jurisdiction. Accordingly, parties alleging
that an executive official violated federal law had to
seek an extraordinary writ (such as mandamus) or
otherwise pursue a common-law action or relief under
one of the limited pockets of federal-question
jurisdiction. See Aditya Bamzai, The Origins of
Judicial Deference to Executive Interpretation, 126
Yale L.J. 908, 948 (2017) (Bamzai); Michael B.
Rappaport, Chevron and Originalism: Why Chevron
Deference Cannot Be Grounded in the Original
Meaning of the Administrative Procedure Act, 57 Wake
Forest L. Rev. 1281, 1286 (2022) (Rappaport). In
mandamus cases, federal courts declined to grant
4
relief “unless the executive officer was acting plainly
beyond the scope of his authority.” United States v.
Mead Corp., 533 U.S. 218, 242 (2001) (Scalia, J.,
dissenting).
But in cases unburdened by the
demanding mandamus standard, federal courts
applied “de novo review.” Bamzai 958. Once Congress
conferred general federal-question jurisdiction,
judicial review became more common, and “agencies
did not receive deference.” Rappaport 1287. Courts
simply interpreted statutes in cases involving agency
action the same way that they did in other cases.
This longstanding judicial tradition of actually
interpreting statutes, rather than merely ascertaining
their clarity and deferring to the executive branch in
close cases, prevailed until the 1940s, when this Court
“steadily expanded the zone of interpretive discretion
given to administrative agencies.” Bamzai 976-77. In
1946, however, Congress responded by enacting the
APA, which declared that “the reviewing court shall
decide all relevant questions of law, interpret
constitutional and statutory provisions, and
determine the meaning or applicability of the terms of
an agency action.” 5 U.S.C. §706.
For decades, “federal courts seem to have
understood that under the APA”—and consistent with
earlier historical practice—“legal interpretations were
for independent judicial resolution.”
Jack M.
Beerman, End the Failed Chevron Experiment Now:
How Chevron Has Failed and Why It Can and Should
Be Overruled, 42 Conn. L. Rev. 779, 791 (2010)
(Beerman). But in 1984, a severely depleted six-
5
Justice Court decided Chevron, 1 which applied a
different methodology for “court review[]” of “an
agency’s construction of the statute which it
administers” in the course of resolving the meaning of
the term “stationary source” under the Clean Air Act.
467 U.S. at 840, 842. Although the decision initially
generated little notice and zero fanfare, see Thomas W.
Merrill, The Story of Chevron: The Making of an
Accidental Landmark, 66 Admin. L. Rev. 253, 276
(2014), it eventually took on a life of its own as a twostep
methodology
for
addressing
statutoryinterpretation questions arising in the context of
agency action. First, “employing traditional tools of
statutory construction,” a reviewing court must
determine “whether Congress has directly spoken to
the precise question at issue,” and “[i]f the intent of
Congress is clear, that is the end of the matter.”
Chevron, 467 U.S. at 842-43 & n.9. Second, if the
reviewing court determines that “Congress has not
directly addressed the precise question at issue”—i.e.,
if “the statute is silent or ambiguous with respect to
the specific issue”—the court must decide “whether
the agency’s answer is based on a permissible
construction of the statute.” Id. at 843.
“Chevron’s justification for choosing deference
was spare.”
Cynthia R. Farina, Statutory
Interpretation and the Balance of Power in the
Administrative State, 89 Colum. L. Rev. 452, 455
(1989). The Court suggested that statutory silence
and ambiguity amount to an “implicit” delegation to
1 Justice Marshall and then-Justice Rehnquist did not
participate in Chevron at all, and Justice O’Connor recused
herself after oral argument. See 467 U.S. at 866.
6
an agency to “interpret[]” and “constru[e]” a “statute
which it administers” and that the “political
branch[es]” are better suited to make “policy choices”
as compared to the judicial branch. Chevron, 467 U.S.
at 843-44 & nn.9, 11, 865-66. The Court further
suggested that history and precedent supported the
“principle
of
deference
to
administrative
interpretations.” Id. at 844.
As the Chevron two-step began to take hold,
criticism mounted. For example, some argued that
Chevron is inconsistent with the Constitution’s
separation of powers; others argued that Chevron
contradicted the APA; and others expressed
skepticism about Chevron’s workability. See, e.g.,
CSX Transp. v. United States, 867 F.2d 1439, 1445
(D.C. Cir. 1989) (Edwards, J., dissenting) (“Chevron’s
mandate is perplexing, because the rule of the case
appears to violate separation of powers principles[.]”);
Sanford N. Caust-Ellenbogen, Blank Checks:
Restoring the Balance of Powers in the Post-Chevron
Era, 32 B.C. L. Rev. 757, 773-74 (1991) (“[Chevron]
upsets the balance created by the Supreme Court in
its nondelegation doctrine.”); Clark Byse, Judicial
Review of Administrative Interpretation of Statutes:
An Analysis of Chevron’s Step Two, 2 Admin. L.J. 255,
266 (1988) (“[T]he Chevron model may not be as
simple to administer as its literal terms suggest.”);
Cass R. Sunstein, et al., Judicial Review of
Administrative Action in a Conservative Era, 31
Admin. L. Rev. 353, 367-68 (1987) (“Courts, not
administrative agencies, are supposed to say what the
law is,” and “[t]he Administrative Procedure
Act … can hardly be understood as a proclamation in
7
favor of judicial deference to administrative agency
interpretations of law.”).
With the passage of time, the full scale of the
“problems” with Chevron “have become widely
appreciated” by members of this Court. Buffington v.
McDonough, 143 S.Ct. 14, 21 (2022) (Gorsuch, J.,
dissenting from the denial of certiorari); see, e.g.,
Baldwin v. United States, 140 S.Ct. 690 (2020)
(Thomas, J., dissenting from the denial of certiorari);
Pereira v. Sessions, 138 S.Ct. 2105, 2120-21 (2018)
(Kennedy, J., concurring); Gutierrez-Brizuela v.
Lynch, 834 F.3d 1142, 1149-58 (10th Cir. 2016)
(Gorsuch, J., concurring); Brett M. Kavanaugh, Fixing
Statutory Interpretation, 129 Harv. L. Rev. 2118,
2150-54 (2016) (Kavanaugh); Perez v. Mortg. Bankers
Ass’n, 575 U.S. 92, 109-10 (2015) (Scalia, J.,
concurring in the judgment); City of Arlington v. FCC,
569 U.S. 290, 312-28 (2013) (Roberts, C.J., dissenting).
As a result, “Chevron has been unmentionable” in this
Court for years.
Ryan D. Doerfler, Late-Stage
Textualism, 2021 Sup. Ct. Rev. 267, 297 (2021).
Instead, consistent with traditional practice and its
assigned constitutional role, the Court has definitively
resolved questions of law itself. See, e.g., Am. Hosp.
Ass’n v. Becerra, 142 S.Ct. 1896 (2022); Becerra v.
Empire Health Found., for Valley Hosp. Med. Ctr., 142
S.Ct. 2354 (2022).
B. Statutory Background
This case concerns the interpretation of the 1976
Magnuson-Stevens Act (MSA). See 16 U.S.C. §§1801
8
et seq. 2 The MSA is administered by the Commerce
Secretary, who has delegated her responsibilities to
NMFS. §§1802(39), 1855(d).
The MSA divides the Nation’s federal fisheries
into eight regions, each governed by a “fishery
management council” overseen by NMFS. §1852(b)(c). Those councils propose “fishery management
plans” and amendments to them. See §§1852(h), 1854.
After NMFS examines each such proposal, it must
provide a public-comment period and decide whether
to approve or disapprove the proposal. §1854(a). If
NMFS approves the proposal, the agency promulgates
it as a final regulation. See §1854(b)(3).
The MSA sets forth various “required provisions”
that fishery-management plans “shall” contain, as
well as “discretionary provisions” that they “may”
contain. §1853(a)-(b). Among the required provisions,
plans “shall contain the conservation and
management measures” that are “necessary and
appropriate for the conservation and management of
the fishery, to prevent overfishing and rebuild
overfished stocks, and to protect, restore, and promote
the long-term health and stability of the fishery.”
§1853(a)(1)(A). Among the discretionary provisions,
plans “may require that one or more observers be
carried on board a vessel …, for the purpose of
collecting data necessary for the conservation and
management of the fishery.” §1853(b)(8). Plans also
“may prescribe such other measures, requirements, or
conditions and restrictions as are determined to be
2 Further statutory references are to Title 16 of the U.S. Code
unless otherwise noted.
9
necessary and appropriate for the conservation and
management of the fishery.” §1853(b)(14).
Space onboard a commercial fishing vessel is a
scarce and precious resource.
Thus, displacing
someone engaged in active fishing to make way for a
federal observer is already an enormous imposition.
Making the fishing vessels foot the bill for that
imposition adds insult to injury.
Hence, when
Congress determined that the fishing industry either
could or must cover the cost of federally mandated
observers, it said so expressly in the MSA. It did so
just three times.
First, the MSA provides that the North Pacific
Council—whose jurisdiction encompasses Alaska,
Washington, and Oregon and many of the largest and
most successful commercial fishing enterprises,
§1852(a)(1)(G)—“may” establish a “plan” that
“requires that observers be stationed on fishing
vessels” and “may … establish[] a system … of fees”
“to pay for the cost of implementing the plan.”
§1862(a). Those fees are expressly capped and “not to
exceed 2 percent[] of the unprocessed ex-vessel value
of fish and shellfish harvested.” §1862(b)(2)(E).
Second, for “limited access privilege programs”—
i.e., programs where persons are permitted to harvest
a specific quantity of the total allowable catch for the
fishery, see §1802(26), and thus where the need for
regulatory compliance is particularly acute—the MSA
provides that regional councils “shall … include an
effective system for enforcement, monitoring, and
management of the program, including the use of
observers or electronic monitoring systems,” and
“shall … provide … for a program of fees paid by
10
limited access privilege holders that will cover the
costs of management, data collection and analysis,
and enforcement activities.” §1853a(c)(1)(H), (e)(2).
Again, those fees are capped and “shall not exceed 3
percent of the ex-vessel value of fish harvested under
any such program.” §1854(d)(2)(B).
Finally, the MSA understandably expresses an
especial concern that authorized “foreign fishing”—
i.e., fishing involving foreign rather than U.S. vessels,
see §1802(19)—not deplete offshore resources within
our exclusive economic zone. The MSA thus requires
that “a United States observer will be stationed
aboard each foreign fishing vessel while that vessel is
engaged in fishing within the exclusive economic zone”
and that NMFS “shall impose … a surcharge in an
amount sufficient to cover all the costs of providing a
United States observer aboard that vessel.”
§1821(h)(1)(A), (4). Furthermore, to guard against the
possibility that “insufficient appropriations” would
allow foreign fishing to proceed unmonitored, the MSA
provides that NMFS shall certify a cadre of private
contractors to serve as observers as part of a
“supplementary observer program” and that NMFS
“shall … establish a reasonable schedule of fees that
certified observers or their agents shall be paid by the
owners and operators of foreign fishing vessels for
observer services.” §1821(h)(6)(A), (C); see 50 C.F.R.
§600.506(h)-(j) (referring to supplementary observers
as “contractors”).
The MSA backs these three limited and express
authorizations for industry-funded observers with
provisions authorizing the imposition of penalties on
noncompliant vessels.
Most saliently, the MSA
11
authorizes “sanctions” on vessels that fail to make
“any payment required for observer services provided
to or contracted by an owner or operator.”
§1858(g)(1)(D). But beyond these provisions, the MSA
is silent with respect to forcing the fishing industry to
pay for the cost of inspectors.
C. Factual and Procedural Background
1. The New England Council is responsible for the
fishery-management plan applicable to, inter alia, the
Atlantic herring fishery. See §1852(a)(1)(A). Unlike
the express authorizations for industry-funded
monitoring in the three limited contexts discussed
above, nothing in the MSA expressly provides that
vessels participating in the herring fishery could or
should foot the bill for federal inspection efforts. As a
consequence, and because Congress has declined to
appropriate funds to NMFS for such inspection efforts
in recent years, the agency has spent the better part
of a decade attempting to develop a workaround. See,
e.g., 79 Fed. Reg. 8,786, 8,793 (Feb. 13, 2014) (“Budget
uncertainties prevent NMFS from being able to
commit to paying for increased observer coverage in
the herring fishery.”).
In 2013, the New England Council began
developing the attempted workaround at issue here:
an “omnibus amendment” to all New England fisherymanagement plans that would empower the Council
to require “the fishing industry to pay its costs for
additional monitoring, when Federal funding is
unavailable.” CADC.App.273. After the New England
Council submitted this amendment, NMFS opened a
comment period before promulgating a final rule
approving it. See 83 Fed. Reg. 55,565 (Nov. 7, 2018);
12
83 Fed. Reg. 47,326 (Sept. 19, 2018). In February
2020, NMFS published that final rule, thus
establishing a process to introduce forced industryfunded monitoring across all New England fisheries.
See 85 Fed. Reg. 7,414 (Feb. 7, 2020). NMFS took that
action notwithstanding industry warnings that it
would impose an “impossible financial burden” on
small businesses, CADC.App.46, and even as it
conceded that “[i]ndustry-funded monitoring is a
complex and highly sensitive issue” due to the
“socioeconomic conditions of the fleets that must bear
the cost” and because “it involves the Federal
budgeting
and
appropriations
process,”
CADC.App.293.
For the Atlantic herring fishery, the final rule
creates an industry-funded-monitoring program that
aims to cover 50% of herring trips undertaken by
vessels with a Category A permit (authorizing fishing
in all Atlantic herring management areas) or a
Category B permit (authorizing fishing in all those
areas except the Gulf of Maine). 85 Fed. Reg. at 7,417.
More precisely, “[p]rior to any trip declared into the
herring fishery, representatives for vessels with
Category A or B permits are required to notify NMFS
for monitoring coverage.” Id. If NMFS determines
that an observer is required on a particular vessel, but
NMFS does not assign a government-paid observer,
the vessel must contract with and pay for a
government-approved third party that provides
monitoring services. Id. at 7,417-18. If the vessel
refuses to foot the bill, it is “prohibited from fishing
for, taking, possessing, or landing any herring.” Id. at
7,418. And the bills are hefty: NMFS estimates that
“industry’s cost responsibility associated with
13
carrying an at-sea monitor” is “$710 per day,” which
would “reduce”
annual
returns-to-owner by
“approximately 20 percent.” Id.
2. Petitioners are four family-owned and familyoperated companies that participate in the Atlantic
herring fishery.
Pet.App.4.
In February 2020,
petitioners filed suit alleging, as relevant here, that
the MSA did not authorize NMFS to mandate
industry-funded monitoring in the herring fishery.
Petitioners moved for summary judgment, and NMFS
cross-moved for summary judgment. In resolving
those motions, the district court explained that its
analysis was “governed by Chevron.” Pet.App.60.
And, remarkably, the court found for NMFS at step
one, holding that the MSA unambiguously authorizes
industry-funded monitoring in the herring fishery.
See Pet.App.59-69.
3. A divided D.C. Circuit panel affirmed. Writing
for the majority, Judge Rogers likewise applied the
“two-step Chevron framework.” 3 Pet.App.5. The
majority acknowledged that this Court “has not
applied th[at] framework” in “recent cases,” but it
emphasized that only this Court can “overrul[e] its
own decisions.” Pet.App.15. Applying Chevron, the
majority stated at step one that the MSA “suggests”
that NMFS may impose industry-funded monitoring
in the Atlantic herring fishery after noting that the
statute allows NMFS to require vessels to “carry” atsea monitors, that it includes two “necessary and
appropriate” provisions, and that it contains a
3 Now-Justice Jackson heard oral argument below, but Chief
Judge Srinivasan subsequently replaced her.
14
“penalty” provision. Pet.App.5-13. But the majority
did not rest its decision on Chevron step one, as it
ultimately found statutory “silence” such that the
MSA leaves “unresolved” whether NMFS “may
require industry to bear the costs of at-sea
monitoring.” Pet.App.6, 12. The majority explained
that “it behooves the court to proceed to Step Two,”
where it declared NMFS’ “interpretation” of the MSA
“reasonable.” Pet.App.5, 13-16.
Judge Walker dissented. After reiterating that
this Court has ceased invoking Chevron and that some
Justices had called for its reconsideration, he
explained that “Congress unambiguously did not”
“authorize [NMFS] to make herring fishermen in the
Atlantic pay the wages of federal monitors who inspect
them at sea.” Pet.App.21. Judge Walker explained
that “it is not usual to require a regulated party to pay
the wages of its monitor when the statute is silent”—
indeed, that NMFS “ha[d] identified no other context
in which an agency, without express direction from
Congress, requires an industry to fund its inspection
regime.” Pet.App.29. Judge Walker also observed
that NMFS’ theory “could lead to strange results” and
“undermine Congress’s power of the purse.”
Pet.App.31-32. And Judge Walker noted that, “if
Congress had wanted to allow industry funding of atsea monitors in the Atlantic herring fishery, it could
have said so,” but it “instead chose to expressly
provide for it in only certain other contexts.”
Pet.App.32-33. In short, Judge Walker determined,
nothing authorizes NMFS to require herring
fishermen to “spend a fifth of their revenue on the
wages of federal monitors embedded by regulation
onto their ships.” Pet.App.37.
15
SUMMARY OF ARGUMENT
The decision below relied on Chevron to reach the
extraordinary conclusion that NMFS may leverage
statutory silence to require herring fisherman to foot
the bill for federal overseers to the tune of 20% of the
fishermen’s annual returns. That decision exemplifies
all that is wrong with Chevron. The Court should
either abandon Chevron for good or at least
substantially cabin its scope.
This Court can discard the Chevron two-step
without analyzing the stare decisis factors applicable
when the Court revisits its substantive statutory or
constitutional holdings. What everyone knows as
“Chevron” is not the decision’s substantive holding
about stationary sources under the Clean Air Act, but
the decision’s methodology for interpreting statutes.
Such interpretive methodologies do not enjoy the same
kind of stare decisis as substantive decisions.
In any event, the stare decisis considerations
applicable in substantive statutory and constitutional
cases only confirm that Chevron must go. First,
Chevron is egregiously wrong several times over. As a
constitutional
matter,
Chevron
impermissibly
transfers both Article III judicial power and Article I
legislative power to Article II executive agencies, and
it runs afoul of the Due Process Clause by requiring
courts to systematically place a thumb on the scale
against the citizenry. As a statutory matter, Chevron
flouts the plain text of the APA, which makes clear
that courts, not agencies, are supposed to interpret
statutes—as a majority of the Court has already
concluded. And Chevron is entirely ahistorical, as it
purported to draw support for deference from a
16
historical record that actually confirms that courts
traditionally discharged their responsibility to
interpret statutes even in cases involving executive
agencies.
Chevron has also proved unworkable and
engendered significant negative consequences. It is no
secret that courts have struggled to apply the Chevron
methodology in a principled way, and the Court’s
manifold efforts to tweak the methodology have only
added to the confusion. The best evidence that
Chevron is unworkable is the fact that this Court no
longer deigns to apply it. More troublingly, Chevron
has seriously distorted how the political branches
operate. Thanks to Chevron, Congress does far less
than the Framers envisioned and the executive branch
does far more, as roughly half of Congress can count
on friends in the executive branch to tackle
controversial issues via executive action without the
need for compromise, bicameralism, or presentment.
That creates a dynamic where the “law” on important
and divisive issues changes radically with every
change of administration, with the latest executive
action predictably challenged in a hand-picked
jurisdiction with an attendant emergency petition to
this Court. Moreover, as baleful as the consequences
are for the separation of powers, Chevron’s primary
victim is the citizenry, as Chevron literally gives the
tie to their regulators in every close case.
There are no concrete reliance interests that
counsel in favor of preserving Chevron. Indeed,
Chevron is a reliance-destroying doctrine. It enables
agencies to change the import of the U.S. Code and
empowers every new administration to change the
17
rules on issues of fundamental importance. Moreover,
any claim of reliance on Chevron is especially hard to
take seriously when this Court has declined to apply
the doctrine for years and expressed misgivings about
it for even longer. But even assuming that private
parties could have legitimately relied on a particular
application of Chevron in a particular case, discarding
Chevron’s interpretive methodology would not ipso
facto upset the substantive results in those cases.
Even the substantive result in Chevron would survive
the overruling of Chevron’s methodology. And while
some government officials will no doubt complain
about the inconvenience of losing Chevron, their
interests carry no weight in the stare decisis analysis.
The case for a clean break with Chevron is thus
overwhelming. But, at a minimum, this Court should
make clear that the doctrine is not triggered by
statutory silence, especially silence concerning a
controversial power expressly but narrowly conferred
elsewhere in the statute. A rule requiring courts to
construe silence as an agency-empowering delegation
is at odds with the bedrock administrative-law rule
that agencies enjoy only the power that Congress has
affirmatively conferred, and it promotes excessive
delegation of Article I power to Article II agencies.
Beyond all that, sensible rules of statutory
interpretation confirm that silence is not consent for
executive agencies to wield a controversial power that
Congress has expressly conferred, only in narrow
circumstances and subject to equally express limits,
elsewhere in the statute.
Once misguided notions of deference are
eliminated, it is plain that the decision below cannot
18
stand. By far the best reading of the MSA is that
Congress did not sub silentio authorize NMFS to
impose an industry-funded-monitoring program that
could deprive vessels in the Atlantic herring fishery of
upwards of one-fifth of their annual returns. The
Court thus should reverse rather than remand and
bring an end to NMFS’ overreaching effort to regulate
the herring industry into nonexistence.
ARGUMENT
I.
The Court Should Overrule Chevron.
A. Chevron Is Entitled to Little, If Any,
Stare Decisis Effect.
This Court’s “precedents on precedent” teach that
stare decisis has greater or lesser force depending on
the nature of the challenged precedent. Ramos v.
Louisiana, 140 S.Ct. 1390, 1412 (2020) (Kavanaugh,
J., concurring in part). Thus, “[c]onsiderations of stare
decisis have special force” when it comes to
substantive interpretations of statutes because “the
legislative power is implicated, and Congress remains
free to alter what [the Court] has done.” Patterson v.
McLean Credit Union, 491 U.S. 164, 172-73 (1989). By
contrast, stare decisis is “weak[er]” when the Court
“interpret[s] the Constitution” because that
“interpretation can be altered only by constitutional
amendment.” Franchise Tax Bd. v. Hyatt, 139 S.Ct.
1485, 1499 (2019).
And stare decisis’ “role” is
“reduced” further when the precedent involves a
“procedural rule,” which “does not serve as a guide to
lawful behavior.” United States v. Gaudin, 515 U.S.
506, 521 (1995).
The methodology employed in Chevron is not
entitled to even the weakest of these forms of stare
19
decisis. To be sure, Chevron’s specific result regarding
the term “stationary source” under the Clean Air Act,
see 467 U.S. at 866, may call for standard stare decisis
analysis, as that discrete holding involves the
interpretation of a particular statutory provision and
thus implicates “statutory stare decisis,” Allen v.
Milligan, 2023 WL 3872517, at *20 (U.S. June 8,
2023). Ironically, it is only the Chevron methodology
that creates any doubt about whether this Court’s
interpretation of the Clean Air Act is entitled to full
stare decisis effect. See Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980-82
(2005). But to state the obvious, this is not a Clean
Air Act case, and what the question presented seeks to
have overruled is Chevron’s interpretive methodology.
That has significant consequences for the stare decisis
analysis.
“Unlike ordinary statutory precedents, ‘the
Court’s precedents … pronouncing the Court’s own
interpretive methods and principles typically do not
fall within that category of stringent statutory stare
decisis.’”
Allen, 2023 WL 3872517, at *21 n.1
(Kavanaugh, J., concurring). In fact, “there is broad
agreement” that “interpretive methodologies” and
“canons” “do not” “receive stare decisis effect” at all.
Kristin E. Hickman & R. David Hahn, Categorizing
Chevron, 81 Ohio St. L.J. 611, 653 (2020); see also, e.g.,
Anita S. Krishnakumar, Metarules for Ordinary
Meaning, 134 Harv. L. Rev. F. 167, 178 (2021) (“Under
our current system of statutory interpretation, there
is no methodological stare decisis[.]”); Jonathan R.
Siegel, The Polymorphic Principle and the Judicial
Role in Statutory Interpretation, 84 Tex. L. Rev. 339,
389 (2005) (“[T]he Court’s actual cases make clear that
20
when the Court issues opinions interpreting statutes,
stare decisis effect attaches to the ultimate holding as
to the meaning of the particular statute interpreted,
but not to general methodological pronouncements, no
matter how apparently firm.”). To pick just two
examples, this Court has moved away from creating
new implied causes of action or new Bivens actions
without overruling J. I. Case Co. v. Borak, 377 U.S.
426 (1964) or Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
That near-consensus makes sense, as “[a]sking a
Justice to give presumptive fidelity to a wide-ranging
methodology with which she disagrees is asking too
much.” Randy J. Kozel, Statutory Interpretation,
Administrative Deference, and the Law of Stare
Decisis, 97 Tex. L. Rev. 1125, 1127 (2019) (Kozel).
There is no basis for a Chevron exception to this
general rule. Indeed, if the Chevron methodology
enjoyed ordinary stare decisis effect, it would be clear
error for this Court to simply ignore Chevron and its
methodology in case after case. But this Court has
repeatedly done just that in all manner of cases since
1984. See 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, 1121 (2008)
(“Of the 1014 [Supreme Court] cases included in our
study, Chevron (or a Chevron precedent) was cited in
only 120. In only 84 cases (8.3% of the population) did
the Court apply the Chevron two-step test.”). And that
trend has only accelerated in recent years, to the point
where it is widely recognized that Chevron has
“expired at the Court.” Richard M. Re, Personal
Precedent at the Supreme Court, 136 Harv. L. Rev.
21
824, 847-48 (2023). None of this would be explicable if
Chevron’s methodology carried any meaningful stare
decisis force.
At most, Chevron could claim the kind of weak or
“reduced” stare decisis effect afforded to procedural
rules. Gaudin, 515 U.S. at 521. Pearson v. Callahan,
555 U.S. 223 (2009), provides an instructive example
of that limited form of stare decisis. There, the Court
unanimously overruled a “two-step procedure” for
resolving qualified-immunity claims. See id. at 23235. In doing so, the Court observed that the stare
decisis “standards” that apply when a “constitutional
or statutory precedent is challenged”—e.g., whether
the precedent “was ‘badly reasoned’ or … has proved
to be ‘unworkable’”—are “out of place” in this context.
Id. at 234. Instead, the Court declared it “appropriate”
to “depart[]” from the challenged precedent simply
because doing so “would not upset expectations” vis-àvis “property and contract rights,” the challenged
precedent “consist[ed] of a judge-made rule,” and
“experience ha[d] pointed up the precedent’s
shortcomings.” Id. at 233.
Those same considerations overwhelmingly
support overruling Chevron’s two-step procedure. In
general, procedural rules do not engender reliance
interests because they “merely govern how courts will
go about their own business when deciding disputes
many years later that parties often cannot foresee
when arranging their affairs,” and it is “particularly
hard to see how Chevron might have engendered
serious reliance interests” when its “very point” is to
allow agencies to change the law. Gutierrez-Brizuela,
834 F.3d at 1158 (Gorsuch, J., concurring); see also
22
pp.40-42, infra. Second, Chevron is undeniably a
judge-made rule. Finally (and to put it mildly),
Chevron has “been questioned by Members of the
Court in later decisions” and has “defied consistent
application by the lower courts” (whose members have
likewise questioned the decision). 4 Pearson, 555 U.S.
at 235; see pp.6-7, supra; pp.26-29, infra. If anything,
this Court’s task is even more straightforward here
than in Pearson, as Chevron’s procedural rule “has
often been disregarded in [this Court’s] own practice.”
Hohn v. United States, 524 U.S. 236, 252 (1998); cf.
Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2427
(2022) (“[T]his Court long ago abandoned Lemon[.]”).
Accordingly, applying the reduced stare decisis
considerations applicable to procedural decisions, the
case for discarding Chevron is overwhelming.
B. In All Events, Every Stare Decisis
Consideration Militates in Favor of
Overruling Chevron.
While the stronger form of stare decisis is
inapplicable here, the factors relevant to that analysis
are still amply satisfied. Stare decisis is never an
“inexorable command.” Payne v. Tennessee, 501 U.S.
808, 828 (1991). Instead, this Court evaluates “three
broad considerations”: (1) “is the prior decision not
4 See, e.g., Mexican Gulf Fishing v. U.S. Dep’t of Com., 60 F.4th
956, 976 (5th Cir. 2023) (Oldham, J., concurring in part); Valent
v. Comm’r of Soc. Sec., 918 F.3d 516, 524-25 (6th Cir. 2019)
(Kethledge, J., dissenting); Aqua Prod., Inc. v. Matal, 872 F.3d
1290, 1334 (Fed. Cir. 2017) (Moore, J., concurring); Waterkeeper
All. v. EPA, 853 F.3d 527, 539 (D.C. Cir. 2017) (Brown, J.,
concurring); Egan v. Delaware River Port Auth., 851 F.3d 263,
278-83 (3d Cir. 2017) (Jordan, J., concurring in the judgment).
23
just wrong, but grievously or egregiously wrong?”; (2)
“has the prior decision caused significant negative
jurisprudential or real-world consequences?”; and (3)
“would overruling the prior decision unduly upset
reliance interests?” Ramos, 140 S.Ct. at 1414-15
(Kavanaugh, J., concurring in part). All of those
considerations strongly support overruling Chevron.
1.
Chevron is egregiously wrong.
“Chevron barely bothered to justify its rule of
deference, and the few brief passages on this matter
pointed in disparate directions.” David J. Barrron &
Elena Kagan, Chevron’s Nondelegation Doctrine, 2001
Sup. Ct. Rev. 201, 212-13 (2001) (Barron & Kagan).
Chevron principally suggested that deference is
appropriate because a statutory ambiguity is an
“implicit” delegation to an agency to “interpret[]” and
“constru[e]” a “statute which it administers,” as
Article III judges are not “experts” in “policy-making.”
467 U.S. at 843-44 & nn.9, 11, 865-66. Chevron
further suggested that “the principle of deference to
administrative interpretations” is supported by
history and precedent. Id. at 844-45 & n.14. In
reality, Chevron’s rule of judicial deference to the
executive’s interpretation of statutes is flatly
inconsistent with Constitution, the APA, and
centuries of tradition. Chevron thus is the poster child
of a case that was “egregiously wrong when decided.”
Ramos, 140 S.Ct. at 1415 (Kavanaugh, J., concurring
in part).
Chevron is at odds with the basic division of labor
in the first three Articles of the Constitution. As the
Framers recognized, “[t]he accumulation of all powers,
legislative, executive, and judiciary, in the same
24
hands … may justly be pronounced the very definition
of tyranny.” The Federalist No. 47, at 298 (James
Madison) (Clinton Rossiter ed., 2003). And the
separation of powers “was not simply an abstract
generalization in the minds of the Framers: it was
woven into the document that they drafted in
Philadelphia in the summer of 1787.” TransUnion
LLC v. Ramirez, 141 S.Ct. 2190, 2203 (2021). Thus,
“to preserve the liberty of all the people,” Collins v.
Yellen, 141 S.Ct. 1761, 1780 (2021), the Constitution
established a tripartite system of government that
separated the federal government’s powers into three
branches. Article I therefore vests “all Legislative
powers” in Congress, U.S. Const. Art. I, §1; Article II
vests “[t]he Executive power” in the President, U.S.
Const. Art. II, §1; and Article III vests “[t]he judicial
power” in the courts, U.S. Const. Art. III, §1.
Chevron poses a triple threat to this
constitutional design. As the Court declared early on
in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),
“[i]t is emphatically the province and duty of the
judicial department to say what the law is.” Id. at 177.
That includes saying what the law is in close cases,
even when the authorities at issue are murky or silent.
Indeed, most cases and controversies arise precisely
because the applicable authorities have a sufficient
degree of ambiguity for reasonable parties to differ
and then litigate.
Some Framers viewed such
ambiguity as nearly ubiquitous: “All new laws” are
“more or less obscure and equivocal,” as “no language
is so copious as to supply words and phrases for every
complex idea, or so correct as not to include many
equivocally denoting different ideas.” The Federalist
No. 37, at 225 (James Madison) (emphasis added); see
25
also, e.g., Caleb Nelson, Originalism and Interpretive
Conventions, 70 U. Chi. L. Rev. 519, 526-27 (2003).
But even as they recognized that ambiguity is
prevalent, the Framers agreed that the power to
“ascertain” the “meaning” of not only “the
Constitution” but also “any particular act proceeding
from the legislative body” must “belong[]” to “the
judges” alone.
The Federalist No. 78, at 466
(Alexander Hamilton); see id. (“The interpretation of
the laws is the proper and peculiar province of the
courts.”); Bamzai 938-41.
Chevron is impossible to square with this
understanding. As one scholar concisely put it,
Chevron is the “counter-Marbury” for “the
administrative state.” Cass R. Sunstein, Law and
Administration After Chevron, 90 Colum. L. Rev.
2071, 2075 (1990). Instead of requiring a court to
authoritatively declare the meaning of “ambiguous”
statutory text as Article III demands, Chevron
requires a court to defer to the “interpretation[s]” and
“constructions” offered by an executive agency, even if
the court concludes that the agency does not have the
best reading of the text. 467 U.S. at 843-44 & n.11. To
the extent that the Chevron Court believed that
Congress “implicitly” desired this result, but see
Barron & Kagan 212 (“Chevron doctrine at most can
rely on a fictionalized statement of legislative
desire[.]”), that only makes matters worse. Congress
plainly lacks the power to delegate the judicial power
to a different branch regardless of whether that desire
is implicit or explicit. See, e.g., Hayburn’s Case, 2 U.S.
(2 Dall.) 408, 410 n.* (1792); see also Stern v. Marshall,
564 U.S. 462, 484 (2011) (“Article III could neither
serve its purpose in the system of checks and balances
26
nor preserve the integrity of judicial decisionmaking if
the other branches of the Federal Government could
confer the Government’s ‘judicial Power’ on entities
outside Article III.”). And this Court would be dutybound to resist that kind of diminishment. See, e.g.,
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217-40
(1995) (invalidating congressional effort to reopen
final judgments). Simply put, by “wrest[ing] from
Courts the ultimate interpretative authority to ‘say
what the law is’” and “hand[ing] it over to the
Executive,”
Chevron
constitutes
a
grievous
separation-of-powers violation. Michigan v. EPA, 576
U.S. 743, 761 (2015) (Thomas, J., concurring); see
Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J.,
concurring) (“Chevron seems no less than a judgemade doctrine for the abdication of the judicial duty.”).
To the extent that Chevron also characterized
agency interpretations of statutes as the “formulation
of policy,” 467 U.S. at 843, that just relocates the
separation-of-powers violation. Article I’s Vesting
Clause gives all legislative power to Congress, and the
text of that Clause “permits no delegation of those
powers.” Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 472 (2001). While this Court’s precedent treats a
certain degree of congressional delegation of
legislative power to executive agencies as permissible,
that is because the line between making the law and
executing it can be murky. See, e.g., Wayman v.
Southard, 23 U.S. (10 Wheat.) 1, 46 (1825); GutierrezBrizuela, 834 F.3d at 1154 (Gorsuch, J., concurring).
It is not because affirmatively delegating the power to
make policy to the executive branch is consistent with
our constitutional scheme, let alone something to be
encouraged or facilitated via judicial deference. See
27
Mistretta v. United States, 488 U.S. 361, 371-72
(1989). Accordingly, conceptualizing Chevron as a tool
that promotes agency policymaking succeeds only in
confirming that Chevron “is nothing more than a
judicially orchestrated shift of power from Congress to
the Executive Branch,” Kavanaugh 2150—and an
authorization for the kind of concentration of power
that the entire constitutional structure seeks to guard
against, see The Federalist No. 47, at 298 (James
Madison) (“[T]he preservation of liberty requires that
the three great departments of power should be
separate and distinct.”).
Chevron’s constitutional infirmities run deeper
and extend to undermining due process. As this Court
has long explained, “[a] fair trial in a fair tribunal is a
basic requirement of due process,” and “no man can be
a judge in his own case.” In re Murchison, 349 U.S.
133, 136 (1955); see Calder v. Bull, 3 U.S. (3 Dall.) 386,
388 (1798) (“[A] law that makes a man a Judge in his
own cause … is against all reason and justice[.]”); see
also The Federalist No. 10, at 74 (James Madison)
(similar). Chevron plainly “runs up against” that
“mainstay of our system of government.” Gutierrez de
Martinez v. Lamagno, 515 U.S. 417, 428 (1995). As in
this case, the government is generally a party in cases
in which courts apply Chevron, and that doctrine
requires courts to make a “precommitment” to favor
the government’s “judgments about the law.” Philip
Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev.
1187, 1212 (2016) (Hamburger). Rather than having
neutral umpires call balls and strikes, Chevron
adjusts the strike zone to favor the home team. “How
is it fair in a court of justice for judges to defer to one
of the litigants,” United States v. Havis, 907 F.3d 439,
28
451 (6th Cir. 2018) (Thapar, J., concurring), rev’d en
banc, 927 F.3d 382 (per curiam), especially when that
litigant is not advancing the best interpretation of the
law and is “the most powerful of parties, the
government”? Hamburger 1212; see Egan, 851 F.3d at
281 (Jordan, J., concurring in the judgment) (“We
would never allow a private litigant the power to
authoritatively reinterpret the rules applicable to a
dispute, yet we routinely allow the nation’s most
prolific and powerful litigant, the government, to do
exactly that.”).
While Chevron’s constitutional flaws are manifold
and sufficient, Chevron is also egregiously wrong as a
matter of statutory construction. Chevron was a case
about the proper procedures for assessing the
statutory interpretations embodied in administrative
action. The salience of the APA to that question would
seem self-evident.
Quite remarkably, however,
Chevron “did not even bother to cite” the APA. Mead,
533 U.S. at 241 (Scalia, J., dissenting); see Perez, 575
U.S. at 109 (Scalia, J., concurring in the judgment)
(describing Chevron as “[h]eedless of the original
design of the APA”). Had Chevron grappled with the
APA, the error of its methodology would have been
immediately apparent.
Section 706 of the APA straightforwardly provides
that “the reviewing court shall decide all relevant
questions of law, interpret constitutional and
statutory provisions, and determine the meaning or
applicability of the terms of an agency action.” 5
U.S.C. §706 (emphasis added). As five members of
this Court have now recognized, that language
indicates that courts must interpret statutes “de
29
novo.” Kisor v. Wilkie, 139 S.Ct. 2400, 2433 (2019)
(Gorsuch, J., concurring in the judgment); see United
States v. Texas, 2023 WL 4139000, at *14 (U.S. June
23, 2023) (Gorsuch, J., concurring in the judgment).
That understanding is reinforced by the fact that §706
“places the court’s duty to interpret statutes on an
equal footing with its duty to interpret the
Constitution,” John F. Duffy, Administrative Common
Law in Judicial Review, 77 Tex. L. Rev. 113, 194
(1998), and “constitutional provisions ha[ve] been
subject to de novo review” “[s]ince at least Marbury,”
Bamzai 985; see, e.g., Miller v. Johnson, 515 U.S. 900,
923 (1995) (citing Marbury and explaining that “we
think it inappropriate for a court engaged in
constitutional scrutiny to accord deference to the
[government’s] interpretation of the [statute]”). If any
doubt about §706’s meaning remained, other
subsections of §706 demonstrate that Congress knew
how to instruct courts to defer to agencies—and that
it deliberately declined to do so when it came to
questions
of
statutory
(or
constitutional)
interpretation. See, e.g., 5 U.S.C. §706(2)(A) (“The
reviewing court shall hold unlawful and set aside
agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.”). It thus is
beyond debate that Chevron “flout[s] the language of
the [APA].” Kavanaugh 2150 n.161.
Chevron just as clearly flouts the historical record.
While it is true that, before the 1875 grant of general
federal-question jurisdiction, courts often gave “great
leeway to executive discretion in interpreting legal
text,” that is only because “many statutory questions
could be resolved only in the context of a mandamus
30
action brought against an executive official,” and a
mandamus action “carried with it a deferential
standard of review.” Bamzai 947, 958; see Rappaport
1287 (“[T]he apparent deference conferred on agencies
was the result of the limited remedies available in
federal court.”). But in non-mandamus cases, “no
comparable interpretive deference” existed—only “de
novo review.” Bamzai 917, 958.
This Court’s decision in Decatur v. Paulding, 39
U.S. (14 Pet.) 497 (1840), provides a clear example.
There, the Court declined to grant mandamus relief in
a case involving an executive official’s discretionary
act, but at the same time, the Court admonished that,
“[i]f a suit should come before this Court, which
involved the construction of any of these laws”—i.e., in
a non-mandamus posture—“the Court certainly would
not be bound to adopt the construction given by the
head of a department.” Id. at 515. To the contrary, if
the Justices “supposed his decision to be wrong, they
would, of course, so pronounce their judgment.” Id.
That much followed from “their duty to interpret the
Act of Congress, in order to ascertain the rights of the
parties in the cause before them.” Id. And once
Congress
conferred
general
federal-question
jurisdiction, this Court “interpreted agency statutes …
without conferring deference.” Rappaport 1288.
To be sure, when conducting de novo review, this
Court traditionally gave “respect” to “certain executive
interpretations of legal text” when executive officers
proffered those interpretations “contemporaneous[ly]
with enactment” or held them “continuously … for a
long time,” Bamzai 944—as the cases cited in Chevron
demonstrate, see, e.g., Edwards’ Lessee v. Darby, 25
31
U.S. 206, 210 (1827) (“In the construction of a doubtful
and
ambiguous
law,
the
contemporaneous
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.”); United States v. Moore, 95 U.S. 760, 762-63
(1877) (similar); Burnet v. Chicago Portrait Co., 285
U.S. 1, 16 (1932) (similar). But that is just a standard
principle of textual interpretation, not a principle of
deference, much less a rule of abdication in cases of
ambiguity. See Rappaport 1291. Indeed, this Court
gives respect to contemporaneous and longstanding
legal interpretations when examining constitutional
text too, see id. at 1291-92, and no one characterizes
that practice as deference, see Baldwin, 140 S.Ct. at
693 (Thomas, J., dissenting from the denial of
certiorari) (explaining that giving “respect to certain
contemporaneous, consistent interpretations of
statutes by executive officers” is akin to “the more
general principle of ‘liquidation,’ in which consistent
and longstanding interpretations of an ambiguous
text could fix its meaning”).
However one characterizes the practice of
respecting contemporaneous and longstanding
interpretations of legal text, it could not possibly
justify Chevron (let alone Brand X). Chevron and its
progeny demand deference to an agency’s noncontemporaneous and inconsistent interpretations of a
statute—a rule without any historical pedigree. See
Chevron, 467 U.S. at 863 (“The fact that the agency
has
from
time
to
time
changed
its
interpretation … does not … lead us to conclude that
no deference should be accorded the agency’s
interpretation of the statute.”); Brand X, 545 U.S. at
32
981 (“Agency inconsistency is not a basis for declining
to analyze the agency’s interpretation under the
Chevron framework.”); accord Caleb Nelson,
Originalism and Interpretive Conventions, 70 U. Chi.
L. Rev. 519, 551 n.137 (2003) (“[T]he terms of the
delegation inferred by Chevron give administrative
agencies substantially more freedom to depart from
settled understandings than the Madisonian concept
of ‘liquidation.’”).
In sum, all constitutional, statutory, and
historical roads lead to the same conclusion: Chevron
is “not just wrong”; it is “grievously [and] egregiously
wrong.” Ramos, 140 S.Ct. at 1415 (Kavanaugh, J.,
concurring in part).
2.
Chevron has caused significant
negative jurisprudential and realworld consequences.
Chevron “is the most talked about, most written
about, most cited administrative law decision of the
Supreme Court. Ever.” Ronald A. Cass, Chevron—
Complicated, Start to Finish, 23 Federalist Soc’y Rev.
265 (2022). What drives all that conversation is that
Chevron has not only proven unworkable but
enormously damaging to our system of government.
The genius of our Constitution is its separation of
government powers to the end of protecting individual
liberty. By reallocating power away from the courts
and Congress and concentrating it in the executive,
Chevron has tinkered with that basic framework.
Forty years later, the superiority of the Framers’
design and the baleful consequences for individual
liberty from Chevron’s tinkering are unmistakable.
33
Chevron’s workability problems were present
early on, have grown over time, and have become so
acute that this Court has simply stopped trying to
apply it. Even Justices who partially defended
Chevron recognized early on that the imprecision of its
threshold test for triggering deference was the
doctrine’s Achilles’ heel. See Antonin Scalia, Judicial
Deference to Administrative Interpretations of Law,
1989 Duke L.J. 511, 520-21 (1989) (warning that
“battles … will be fought” over the “ambiguity” of the
Chevron test). The “fundamental problem” is that
“different judges have wildly different conceptions of
whether a particular statute is clear or ambiguous,”
which generates inconsistency in Chevron’s
application that is “antithetical to the neutral,
impartial rule of law.” Kavanaugh 2152-54. Many
judges declare ambiguity readily and engage in
“reflexive deference” to the agency. Pereira, 138 S.Ct.
at 2120 (Kennedy, J., concurring); see Kent Barnett &
Christopher J. Walker, Chevron in the Circuit Courts,
116 Mich. L. Rev. 1, 33-34 (2017) (sampling over 1,000
cases and concluding that courts of appeals find
ambiguity at Chevron step one 70% of the time). By
contrast, other judges literally never find ambiguity.
See, e.g., Raymond M. Kethledge, Ambiguities and
Agency Cases: Reflections After (Almost) Ten Years on
the Bench, 70 Vand. L. Rev. En Banc 315, 323 (2017)
(“I personally have never had occasion to reach
Chevron’s step two in any of my cases[.]”).
Even the litigant with the most Chevron
experience of all—the federal government—has
conceded (as it must) that there is no good answer to
how much ambiguity is enough to get to step two. See,
e.g., Tr. of Oral Arg. 72, Am. Hosp. Ass’n, No. 20-1114
34
(Justice Gorsuch: “So the government can’t tell us how
much ambiguity is enough?” Assistant to the Solicitor
General: “I’m not sure anybody’s answered that
question.”). It is hard to see how a two-step test is
worth its salt, or worth keeping, if no one can agree
what triggers the second step.
This case brings Chevron’s unworkability into
stark relief. The district court thought the MSA
unambiguously favored NMFS at Chevron step one.
The D.C. Circuit majority found that same statute
ambiguous at step one and deferred to NMFS’
interpretation at step two. And in dissent, Judge
Walker determined that the same statute
unambiguously favored petitioners at step one.
Worse still, Chevron’s unworkability has only
grown as the doctrine has become more “elaborate,”
Perez, 575 U.S at 109 (Scalia, J., concurring in the
judgment), via failed efforts to redress its workability
problems. In Mead, for instance, the Court declared
that a court must undertake a so-called “step zero” to
determine whether the Chevron framework even
applies. But “Mead has proven just as confusing and
controversial as Chevron.” Kristin E. Hickman, The
Three Phases of Mead, 83 Fordham L. Rev. 527, 528
(2014). In practice, that threshold test provides no
more guidance than “that test most beloved by a court
unwilling to be held to rules (and most feared by
litigants who want to know what to expect): th’ol’
‘totality of the circumstances’ test.” Mead, 533 U.S. at
241 (Scalia, J., dissenting).
Nor is that all. In a string of cases, the Court has
eschewed Chevron altogether when “major questions”
are presented. See, e.g., King v. Burwell, 576 U.S. 473,
35
485-86 (2015). That injects yet another threshold
question of “how major must the questions be for
Chevron not to apply?” (and “why is it still appropriate
for cases involving less major but still important
questions?”). Kavanaugh 2152. Other perplexing
questions wait in the wings if Chevron is not
discarded. See, e.g., Cargill v. Garland, 57 F.4th 447,
468 (5th Cir. 2023) (en banc) (discussing circuit splits
over whether Chevron is waivable and whether
Chevron applies when a statute has criminal and not
just civil applications); Guedes v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, No. 22-1222 (U.S.
pet. for cert. filed June 14, 2023) (asking Court to
decide whether Chevron trumps the rule of lenity if
Chevron’s fate is unresolved in this case). As judges
and commentators thus have explained, “whether
Chevron applies is often contested and unclear,”
Aposhian v. Wilkinson, 989 F.3d 890, 897 (10th Cir.
2021) (Tymkovich, J., dissenting), which forces
everyone involved to devote “inordinate resources” to
extraneous issues, Beerman 784.
Of course, the best evidence of Chevron’s
unworkability is this Court’s consistent declination to
apply it in cases where the lower courts and parties
labored extensively to document that they were on this
or that side of Chevron’s hazy doctrinal lines. See, e.g.,
Am. Hosp. Ass’n, 142 S.Ct. 1896. With the greatest
respect, this Court has already voted with its feet, just
as it did with Lemon, by refusing to apply a test that
has proven too incoherent or imprecise to serve any
function beyond occasionally adding makeweight to a
decision reached by other means. Cf. Bd. of Educ. of
Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687,
750 (1994) (Scalia, J., dissenting) (noting Court
36
invokes Lemon “only when useful”). Lower courts and
litigants do not have that luxury, and this Court
should free them from the continued burden of
wrestling with a thoroughly unworkable methodology.
Cf. id. at 751 (noting lower courts and litigants “are
not free to ignore Supreme Court precedent at will”).
The destruction that Chevron has wrought,
however, is hardly confined to the courtroom. To the
contrary, Chevron has also undermined how the
political process is supposed to operate. “The framers
believed that the power to make new laws regulating
private conduct was a grave one that could, if not
properly checked, pose a serious threat to individual
liberty,” so they “insist[ed] that two houses of
Congress must agree to any new law and the President
must concur or a legislative supermajority must
override his veto.” West Virginia v. EPA, 142 S.Ct.
2587, 2618 (2022) (Gorsuch, J., concurring).
Chevron obliterates this careful design. “Chevron
encourages the Executive Branch (whichever party
controls it) to be extremely aggressive in seeking to
squeeze its policy goals into ill-fitting statutory
authorizations and restraints.” Kavanaugh 2150; see
David S. Tatel, The Administrative Process and the
Rule of Environmental Law, 34 Harv. Envtl. L. Rev. 1,
2 (2010) (noting that, “in both Republican and
Democratic administrations,” there are “often” cases
where “it looks for all the world like agencies choose
their policy first and then later seek to defend its
legality”). And given the potential political costs of
reaching compromises, Congress is “all too happy to
stay out of the business of governing.” Overruling
Chevron Could Make Congress Great Again, The Reg.
37
Rev. (Sept. 12, 2018), https://perma.cc/7HEZ-EDJH.
After all, if roughly half of those in Congress can
accomplish their policy objectives in full by calling up
their friends in the executive branch, there is precious
little incentive for elected policymakers to
“compromise,” which is “need[ed]” if legislation is to
pass via the constitutionally prescribed course. West
Virginia, 142 S.Ct. at 2618 (Gorsuch, J., concurring);
see Egan, 851 F.3d at 279 (Jordan, J., concurring in
the judgment) (explaining that, because of Chevron,
Congress refuses to “undertak[e] the difficult work of
reaching consensus on divisive issues”).
The net effect is that Chevron incentivizes a
dynamic where Congress does far less than the
Framers anticipated, and the executive branch is left
to do far more by deciding controversial issues via
regulatory fiat. Major policy disagreements that
should be settled by legislative compromise are
instead resolved temporarily by executive actions that
change with every administration. The new executive
actions precipitate challenges by skeptical states in
hand-picked forums that promptly find their way to
this Court’s emergency docket. And this whole cycle
repeats itself “every few years” as new presidential
administrations make “radical changes in the
meaning of numerous laws.” Richard J. Pierce, Jr.,
The Combination of Chevron and Political Polarity
Has Awful Effects, 70 Duke L.J. Online 91, 92 (2021)
(Pierce). There is a far better way—the one that the
Framers designed. Discarding Chevron is a critical
step to restoring that design. Cf. Nathan Alexander
Sales & Jonathan H. Adler, The Rest Is Silence:
Chevron Deference, Agency Jurisdiction, and
Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1501
38
(2009) (“A no-deference rule … creates desirable
incentives for Congress to resolve a greater number of
policy matters itself, leaving fewer to agencies and the
courts.”).
But as damaging as Chevron is for the judiciary
and Congress, the real loser is the citizenry. At one
level, that is obvious. In a liberty-loving Republic, one
would expect that, whenever there is doubt about
whether the executive has authority over the
governed, the tie would go to the citizenry—as is true
in other contexts. Cf. United States v. Wiltberger, 18
U.S. (5 Wheat.) 76, 95 (1820) (rule of lenity). But
Chevron quite literally erects the opposite rule for
breaking not only ties, but anything deemed
“ambiguous”—and, again, “no definitive guide exists
for determining whether statutory language
is … ambiguous.” Kavanaugh 2138.
The difficulties for the citizenry take more subtle
forms as well. It is perhaps a tolerable fiction that the
citizenry can master the various provisions of the U.S.
Code. But under Chevron, the citizenry is “charged
with an awareness of Chevron,” and the full range of
discretionary executive lawmaking it empowers.
Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J.,
concurring). That means that citizens are “required
not only to conform their conduct to the fairest reading
of the law they might expect from a neutral judge, but
forced to guess whether the statute will be declared
ambiguous; to guess again whether the agency’s initial
interpretation of the law will be declared ‘reasonable’;
and to guess again whether a later and opposing
agency interpretation will also be held ‘reasonable.’”
Guedes v. Bureau of Alcohol, Tobacco, Firearms &
39
Explosives, 140 S.Ct. 789, 790 (2020) (Gorsuch, J.,
dissenting from the denial of certiorari). All of that
“make[s] it impossible for Americans to be able to rely
on any stable legal regime as the basis for their
decisionmaking in many important contexts.” Pierce
92.
And while Chevron certainly impacts the
Chevrons of the world, “[t]he administrative
state … ‘touches almost every aspect of daily life,’”
City of Arlington, 569 U.S. at 313 (Roberts, C.J.,
dissenting), and thus the Chevron doctrine has
destabilizing consequences for smaller enterprises too.
This case is Exhibit A. Petitioners are small,
family-owned businesses that have operated for
decades in a fishery where margins are exceedingly
tight. See, e.g., Dep’t of Com., Secretary of Commerce
Issues Fishery Disaster Determination for 2019
Atlantic Herring Fishery (Nov. 22, 2021),
https://perma.cc/HP3P-L48E. For most of that time,
no one ever hinted that petitioners would have to
surrender any of their returns to pay the salaries of
federally mandated observers—because that mandate
appears exactly nowhere in the MSA. But feeling
“sufficiently emboldened” by Chevron, Michigan, 576
U.S. at 763 (Thomas, J., concurring), NMFS recently
dusted off decades-old MSA provisions to promulgate
a rule that would require petitioners to fork over some
20% of their annual returns to pay those salaries—all
because Congress did not deem the monitoring project
worthy of federal appropriations. See 85 Fed. Reg. at
7,418. Although the D.C. Circuit unanimously agreed
that the MSA nowhere clearly authorized such
oppressive regulation, a majority nevertheless
40
thought that Chevron tipped the scales in NMFS’
favor, thus placing petitioners’ businesses and those of
other herring fishermen at risk of extinction. It thus
cannot seriously be disputed that Chevron exacts
negative “real-world effects on the citizenry, not just
… on the law and the legal system.” Ramos, 140 S.Ct.
at 1415 (Kavanaugh, J., concurring in part).
3.
Overruling Chevron would not upset
reliance interests.
There are no serious reliance interests requiring
the Court to preserve Chevron.
This Court’s
precedents emphasize the relevance of concrete
reliance interests in the stare decisis analysis, such as
those that develop “in property and contract cases,
where parties may have acted in conformance with
existing legal rules in order to conduct transactions.”
Citizens United v. FEC, 558 U.S. 310, 365 (2010). But
“no one rationally orders their affairs in reliance on
Chevron deference.” Beerman 785. Indeed, no one
could. After all, Chevron’s raison d’être “is to permit
agencies to upset the settled expectations of the people
by changing policy direction depending on the agency’s
mood at the moment.” Gutierrez-Brizuela, 834 F.3d at
1158 (Gorsuch, J., concurring); see, e.g., Mozilla Corp.
v. FCC, 940 F.3d 1 (D.C. Cir. 2019) (upholding FCC’s
fourth inconsistent interpretation of a single statute
over fifteen years).
And it is especially hard to
imagine how anyone could claim reliance on Chevron
when they “have been on notice for years regarding
this Court’s misgivings about [it],” Janus v. Am. Fed’n
of State, Cnty., & Mun. Emps. Council 31, 138 S.Ct.
2448, 2484 (2018)—to the point where the Court no
longer cites the case and treats it like a “doctrinal
41
dinosaur,” Kimble v. Marvel Ent., LLC, 576 U.S. 446,
458 (2015).
In all events, to the extent that anyone has
attempted to rely on a concrete application of Chevron
in a particular case notwithstanding the looming
threat of a Brand X-style switcheroo, abandoning
Chevron’s methodology would not necessarily disturb
that substantive precedent. Any case decided under
step one will be unaffected by Chevron’s overruling.
And any case decided under step two cannot generate
justifiable reliance given the executive’s ability revisit
matters under Brand X. If anything, those judicial
decisions will be entitled to more respect in a postChevron world.
As this Court has explained,
“[p]rinciples of stare decisis … demand respect for
precedent whether judicial methods of interpretation
change or stay the same.” CBOCS W., Inc. v.
Humphries, 553 U.S. 442, 457 (2008). It follows that
“[c]oncrete applications of Chevron” will continue to
“carry a presumption of durability independent of the
decision-making approaches that yielded them”—i.e.,
even if Chevron is overruled. Kozel 1161; see Beerman
786 (similar).
Any reliance by government officials does not
affect the calculus. To be sure, some administrative
agencies (like NMFS) have relied on Chevron over the
years
to
advance
“adventurous
statutory
interpretations” that test the limits of the English
language and common sense. Beerman 842. But cf.
Buffington, 143 S.Ct. at 21 (Gorsuch, J., dissenting
from the denial of certiorari) (“The federal government
itself now often waives or forfeits arguments for
Chevron deference before this Court.”). But “stare
42
decisis accommodates only legitimate reliance
interests,” South Dakota v. Wayfair, Inc., 138 S.Ct.
2080, 2098 (2018) (quotation marks and brackets
omitted), and this Court “has never suggested that the
convenience of government officials should count in
the balance of stare decisis, especially when weighed
against the interests of citizens in a fair hearing before
an independent judge and a stable and knowable set
of laws,” Kisor, 139 S.Ct. at 2447 (Gorsuch, J.,
concurring in the judgment).
Finally, nothing in Kisor detracts from this
straightforward analysis. Most obviously, Kisor never
argued that Auer/Seminole-Rock deference was
unworkable, id. at 2423, while Chevron is unworkable
in the extreme. At the same time, Auer/SeminoleRock deference was not an innovation of the Eighties,
but pre-dated the APA and was not honored only in
the breach, see id. at 2422, as has been the case with
Chevron. Nor did Kisor fully grapple with the distinct
stare decisis factors applicable to methodological
decisions (perhaps because most of the majority
seemed to consider Auer and Seminole Rock correctly
decided, see id. at 2418-20 (plurality op.)); it did not,
for example, cite Pearson and its abandonment of a
different, rigid two-step test. But most important,
deferring to an agency’s interpretation of its own
regulations does not involve the grave separation-ofpowers problem posed by Chevron.
After all,
Auer/Seminole-Rock deference assumes that the
agency had sufficient authority from Congress to
address the matter at hand via regulations and then
gives weight to a post hoc clarification of those
regulations in an amicus brief or other agency
document.
Thus, while Auer/Seminole-Rock
43
deference may risk the health of the notice-andcomment process, Chevron endangers our entire
structure of separated and delimited government.
Finally, it bears emphasis that the combined force of
Auer/Seminole-Rock deference and Chevron poses a
double threat to the citizenry, so if Auer/SeminoleRock deference is here to stay, that is all the more
reason to jettison Chevron.
*
*
*
Chevron is slated to turn forty in June 2024. The
best celebration for our system of government and our
citizenry would be to mark that milestone with an
overruling. Chevron is both profoundly wrong and
profoundly disruptive, and overruling it would not
disturb any legitimate reliance interests. “[T]he whole
project deserves a tombstone no one can miss.”
Buffington, 143 S.Ct. at 22 (Gorsuch, J., dissenting
from the denial of certiorari).
II. At A Bare Minimum, The Court Should
Clarify That Chevron Is Not Triggered By
Statutory Silence.
If the Court chooses not to discard Chevron
entirely, it should at least narrow the doctrine and
clarify that it does not apply merely because the
statute is silent on a given issue, especially when the
purported silence involves an extraordinary power
that Congress expressly conveyed elsewhere in the
statute. Even apart from the considerations that
support Chevron’s overruling in toto, see pp.18-43,
supra, the proposition that statutory silence is a
deference-empowering delegation of authority to an
agency is particularly dubious.
And narrowing
Chevron
does
not
implicate
stare
decisis
44
considerations, as the Court has previously done just
that. See, e.g., Kristin E. Hickman & Aaron L.
Nielson, Narrowing Chevron’s Domain, 70 Duke L.J.
931, 996 (2021) (“[T]he Court has already narrowed
Chevron’s scope, in Mead and King, without raising
stare decisis concerns.”).
Affording deference based on statutory silence is
ultimately a substantive canon of construction: If the
statute is silent, the government wins. Not every
substantive canon is legitimate, see, e.g., Amy Coney
Barrett, Substantive Canons and Faithful Agency, 90
B.U. L. Rev. 109 (2010) (Barrett), and applying
Chevron to statutory silence falls on the illegitimate
side of the dividing line by a sizable margin. It is
bedrock administrative law that “[a]dministrative
agencies are creatures of statute” and “accordingly
possess only the authority that Congress has
provided.” NFIB v. OSHA, 142 S.Ct. 661, 665 (2022)
(per curiam). As a result, “an agency literally has no
power to act … unless and until Congress confers
power upon it.” La. Pub. Serv. Comm’n v. FCC, 476
U.S. 355, 374 (1986) (emphasis added). A rule
requiring courts to interpret statutory silence as an
agency-empowering delegation “stand[s] this ancient
and venerable principle nearly on its head.” GutierrezBrizuela, 834 F.3d at 1153 (Gorsuch, J., concurring).
Given this bedrock and liberty-protecting principle,
the far more obvious inference from statutory silence
is that Congress withheld a power from the agency,
rather than handing it a blank check.
The problems do not end there.
Although
applying a substantive canon to break ties may make
sense when it “promotes constitutional values,”
45
Barrett 181; see West Virginia, 142 S.Ct. at 2616-17
(Gorsuch, J., concurring), applying Chevron to
statutory silence undermines those values. After all,
delegation of law-making power to the executive is
never a good thing and always runs counter to the
Constitution’s design. Article I, §1 of the Constitution
vests “all” of the federal government’s “legislative
powers” in Congress, U.S. Const. Art. I, §1 (emphasis
added), not just some of them, and there is no such
thing as a salutary amount of delegation. The
difficulty, of course, is finding a workable test for
identifying impermissible delegations. See Mistretta,
488 U.S. at 415 (Scalia, J., dissenting) (“[W]hile the
doctrine
of
unconstitutional
delegation
is
unquestionably a fundamental element of our
constitutional system, it is not an element readily
enforceable by the courts.”). But whether or not this
Court can fashion an administrable test for separating
wheat from chaff in this context, there is no
justification whatsoever for a doctrine that rewards
delegation by finding rulemaking authority in the
absence of statutory text. The sensible principles all
run in the opposite direction. If Congress “does
not … hide elephants in mouseholes,” Whitman, 531
U.S. at 468, it surely does not empower agencies to
conjure elephants, or even mice, out of nothing at all.
But even assuming that there are some
circumstances when a court may construe statutory
silence as an implicit delegation of authority to an
agency, those circumstances certainly do not include a
dynamic where the statutory silence implicates a
controversial power and the silence is in
contradistinction to an express grant of the power
elsewhere in the very same statute.
Indeed,
46
construing that type of silence as an implicit
delegation to an agency is wildly out-of-step with the
sensible rules of statutory interpretation that this
Court applies in other contexts. For example, this
Court has frequently reiterated that, “[w]hen
Congress includes particular language in one section
of a statute but omits it in another section of the same
Act, we generally take the choice to be deliberate.”
Bartenwerfer v. Buckley, 143 S.Ct. 665, 673 (2023)
(quotation marks omitted). That strongly suggests
that the power to make the regulated pay for onboard
regulators is limited to the three specific instances
where Congress granted that extraordinary power.
The Court has also frequently reiterated that it is
“hesitant to adopt an interpretation of a congressional
enactment which renders superfluous another portion
of that same law.” Republic of Sudan v. Harrison, 139
S.Ct. 1048, 1058 (2019). That strongly favors finding
that the limits on the burdens the agency can impose
on domestic fisheries foreclose imposing unlimited
burdens on other domestic fisheries.
Finally, all these principles apply a fortiori when
the power at issue is as dangerous as the authority of
an executive agency to impose what to all the world,
and certainly to petitioners, looks like a prohibitive
tax. When a statute is silent as to a power that
dangerous, the only reasonable inference is that
Congress withheld that power altogether. See Maine
Lobstermen’s Ass’n v. NMFS, 2023 WL 4036598, at *11
(D.C. Cir. June 16, 2023) (“We may reasonably expect
the Congress at least to speak, not to be silent, when
it delegates this power to destroy.”).
47
III. In Either Event, The Court Should Reverse
Rather Than Remand.
Regardless of whether the Court overrules or
merely narrows Chevron, the Court should reverse the
decision below rather than remand in order to bring a
definitive end to this dispute and to provide an
example of what statutory interpretation should look
like in a post-Chevron (or Chevron-lite) world. Doing
so would also illustrate the stark difference between
statutory interpretation distorted by Chevron and the
kind of statutory interpretation that is the bread and
butter of Article III courts in every other context.
While the D.C. Circuit majority posited that the MSA
“suggests” that NMFS acted properly here, Pet.App.8,
statutory text, context, and history, along with this
Court’s precedent, all confirm the opposite.
Starting with the text, there is none that explicitly
authorizes NMFS’ asserted power. That omission is
telling given that that Congress specifically addressed
industry-funded monitoring in other contexts. In
particular, the MSA provides that the North Pacific
Council “may” impose an industry-funded-monitoring
program, §1862(a), and that such programs “shall”
exist in the contexts of both a “limited access privilege
program,” §§1853a(c)(1)(H), 1853a(e)(2), and “foreign
fishing,” §1821(h)(4), (6).
Those express and limited authorizations make
perfect sense. The North Pacific Council oversees
some of the largest and most commercially successful
enterprises that can more easily absorb the costs of
federal monitoring.
Compare NOAA Fisheries,
Alaska, https://perma.cc/4WEC-328H (last visited
July 17, 2023) (“Alaska produces more than half the
48
fish caught in waters off the coast of the United States,
with an average wholesale value of nearly $4.5 billion
a year.”), with Jessica Hathaway, “Feds Declare East
Coast Herring Fishery a Disaster,” National
Fisherman (Nov. 23, 2021), https://perma.cc/BU5B6JJ4 (NOAA economist estimating value of Atlantic
herring fishery at $6.77 million in 2020). Even still,
the authority is permissive and subject to strict limits
to
prevent
overburdening
the
regulated.
Furthermore, when vessels are given a special
“limited access privilege” to operate in restricted areas
subject to strict catch limits, both the need for
observation and the reasonableness of making specialprivilege holders foot the bill are at their apex. And
when foreign vessels are allowed to operate within our
exclusive economic zone, there is no reason why
taxpayers should pay for monitoring costs. See
§1801(a)(3) (congressional finding that “massive
foreign fishing fleets” contributed to overfishing and
“interfered with domestic fishing efforts”).
No
comparable justification exists for garden-variety
domestic fishing operations.
It thus is more than “fair to suppose that Congress
considered the unnamed possibility” here—
authorizing industry-funded monitoring in the
Atlantic herring fishery—“and meant to say no to it.”
Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013).
That conclusion is especially appropriate given that
Congress has authorized both the permissive use of
industry-funded observers (in one context) and the
mandatory use of industry-funded observers (in two
separate contexts). If Congress had simply mandated
the use of industry-funded observers in two limited
contexts, perhaps one could say that Congress never
49
considered the possibility of granting permissive
authority.
But here, Congress considered both
distinct authorities and conveyed neither in this
context.
The MSA’s statutory evolution reinforces that
Congress intentionally declined to authorize
permissive industry-funded-monitoring programs
outside the North Pacific. Congress explicitly granted
the North Pacific Council the discretion to establish an
industry-funded observer program as part of the
Fishery Conservation Amendments of 1990. See Pub.
L. No. 101-627, §118(a), Nov. 28, 1990, 104 Stat. 4436,
4447. In the very same amendments, Congress added
the MSA provision authorizing the “carrying” of
observers on vessels, which supplemented NMFS’
preexisting authority to include other “necessary and
appropriate” measures. See id. §109(b)(2), 104 Stat.
4436, 4448 (codified at §1853(b)(8)); see also Pub. L.
No. 94-265, §303(a)(1)(A), (b)(7), Apr. 13, 1976, 90
Stat. 331, 351-52. If NMFS truly had discretionary
authority to impose industry-funded monitoring in
any fishery as a result of the combination of the
“carrying” and “necessary and appropriate”
provisions, there would have been no need for a
specific grant of authority to the North Pacific Council.
But see Intel Corp. Inv. Pol’y Comm. v. Sulyma, 140
S.Ct. 768, 779 (2020) (“When Congress acts to amend
a statute, we presume it intends its amendment to
have real and substantial effect.”).
That NMFS lacks its asserted power is further
confirmed by the fact that, in the only two instances
where Congress has expressly authorized industryfunded observer programs for domestic vessels, it has
50
placed strict caps on fees to ensure that the fishing
enterprise is not overburdened. See §1862(b)(2)(E)
(2% cap in the North Pacific); §1854(d)(2)(B) (3% cap
for limited-access-privilege programs). In the absence
of any congressional authorization, NMFS has shown
no such restraint. NMFS itself estimates that the
levies imposed on the Atlantic herring fishery could
extract 20% of annual returns. 85 Fed. Reg. at 7,418.
And all this under a statute (the MSA) enacted with a
specific finding that “[c]ommercial … fishing
constitutes a major source of employment and
contributes significantly to the economy of the
Nation,” with “[m]any coastal areas … dependent
upon fishing and related activities.” §1801(a)(3).
And there is more. Across several decades,
Congress has
considered multiple proposed
amendments that, if enacted into law, would have
provided expanded authority for industry-funded
observer programs. See, e.g., H.R. 5018, 109th Cong.
§9(b) (2006); H.R. 39, 104th Cong. §9(b)(4) (1995); H.R.
1554, 101st Cong. §2(a)(3) (1989). But “the most
noteworthy action” that Congress has taken vis-a-vis
those proposals is to reject them. NFIB, 142 S.Ct. at
666; see also West Virginia, 142 S.Ct. at 2614; Ala.
Ass’n of Realtors v. HHS, 141 S.Ct. 2485, 2486 (2021)
(per curiam). Those rejections have left NMFS
attempting to divine from statutory silence a power
that is literally unprecedented. Indeed, NMFS “has
identified no other context in which an agency,
without express direction from Congress, requires an
industry to fund its inspection regime.” Pet.App.29
(Walker, J., dissenting).
As this Court has
admonished, that kind of “prolonged reticence” to
exercise a power so dangerous to the citizenry and
51
attractive to the executive is powerful evidence that
the power is non-existent or “constitutionally
proscribed.” Plaut, 514 U.S. at 230; accord Printz v.
United States, 521 U.S. 898, 905 (1997).
This is the very last context where it is
appropriate to ignore that warning sign.
The
appropriations process is a primary constitutional
mechanism by which Congress keeps the executive
branch in “check[].” Texas, 2023 WL 4139000, at *9;
see U.S. Dep’t of Navy v. Fed. Lab. Rels. Auth., 665
F.3d 1339, 1347 (D.C. Cir. 2012) (Kavanaugh, J.) (“The
Appropriations Clause … is particularly important as
a restraint on Executive Branch officers[.]”).
Whatever the permissibility of congressional action
expressly exempting agencies from the appropriations
process, interpreting statutory silence to empower
agencies to free themselves from such shackles is
wholly untenable and would raise serious separationof-powers concerns. As already explained, one of the
principal defects with Chevron is that it violates the
separation of powers. There is no need to introduce
new separation-of-powers problems while leaving old
ones behind. Cf. United States v. Hansen, 2023 WL
4138994, at *10 (U.S. June 23, 2023) (applying canon
of constitutional avoidance).
*
*
*
For all these reasons, the answer to the statutory
question here should have been obvious. In the face of
statutory silence, an agency asserted a controversial
and dangerous power that imposed serious hardships
on the citizenry while evading the appropriations
process. That silence was not ambiguity but a
congressional decision not to grant the agency powers
52
that it had expressly granted and expressly cabined
elsewhere in the statute. That the court below
nonetheless sided with the agency is a testament to
the dangers of Chevron. The right result here is clear:
Chevron should be overruled, and the decision below
should be reversed so that the liberty of the small
businesses that pursued this matter all the way to this
Court is secured.
CONCLUSION
For the foregoing reasons, this Court should
reverse the judgment below.
Respectfully submitted,
RYAN P. MULVEY
PAUL D. CLEMENT
ERIC R. BOLINDER
Counsel of Record
R. JAMES VALVO, III ANDREW C. LAWRENCE*
CAUSE OF ACTION CHADWICK J. HARPER*
INSTITUTE
CLEMENT & MURPHY, PLLC
1310 N. Courthouse Rd. 706 Duke Street
Suite 700
Alexandria, VA 22314
Arlington, VA 22201 (202) 742-8900
paul.clement@clementmurphy.com
*Supervised by principals of the firm
who are members of the Virginia bar
Counsel for Petitioners
July 17, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.