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

No. 22-451

IN THE

Supreme Court of the United States

___________

LOPER BRIGHT ENTERPRISES, et al.,

v.

Petitioners,

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 Circuit

___________

BRIEF OF TECHFREEDOM AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

___________

July 20, 2023

CORBIN K. BARTHOLD

Counsel of Record

BERIN SZÓKA

TECHFREEDOM

1500 K Street NW

Washington, DC 20005

(771) 200-4997

cbarthold@techfreedom.org

i

Table of Contents

Page

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

INTEREST OF AMICUS CURIAE ......................... 1

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

ARGUMENT ............................................................ 6

I.

AGENCIES POSSESS UNIQUE EXPERTISE......... 6

II. CONGRESS MAY—CAREFULLY—INVOKE

AGENCY EXPERTISE ........................................ 8

III. A COURT CAN BOTH DEFER TO AN AGENCY

AND DECIDE ALL QUESTIONS OF LAW ......... 13

IV. KEEP THE CHEVRON DECISION; DITCH

THE CHEVRON “DOCTRINE” .......................... 15

A. Under Chevron, Deference Is Not

“Reflexive” ............................................... 16

B. Under Chevron, Statutory Silence

Does Not Trigger Deference ................... 18

C. Chevron’s Two-Step Framework Is

Less Important Than Chevron’s

“Statutory Tools” Proviso ....................... 19

D. An Indeterminate Statute Raises Not

A Chevron Question, But A Nondelegation Problem ...................................... 21

E. Although Chevron’s Core Holding Is

Sound, Certain Applications Of

Chevron Are Not ..................................... 24

CONCLUSION ...................................................... 25

ii

Table of Authorities

Page(s)

Cases

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018) ................................ 18

Ass’n for Molecular Pathology v. Myriad

Genetics, Inc., 569 U.S. 576 (2013) ........................ 7

Biden v. Nebraska,

No. 22-506 (U.S. June 30, 2023) .................... 15, 23

Boyle v. Utd. Tech. Corp.,

487 U.S. 500 (1988) .............................................. 23

Buffington v. McDonough,

No. 21-972 (U.S. Nov. 7, 2022) ........... 12, 13, 15. 24

Chevron v. NRDC,

467 U.S. 837 (1984) .......................... 2, 6, 16, 18, 19

20, 21, 24

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................ 10, 11

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .............................. 2

Indus. Union Dep’t v. Am. Petroleum

Inst., 448 U.S. 607 (1980)............................... 22, 23

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................... 5, 7, 9

iii

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) .............................................. 19

Marbury v. Madison,

5 U.S. 137 (1803) .................................................... 4

Michigan v. EPA,

576 U.S. 743 (2015) .................................... 8, 12, 22

NFIB v. Dep’t of Labor,

21A244 (U.S. Jan. 13, 2022) ................................ 18

Norton v. S. Utah Wilderness All.,

542 U.S. 55 (2004) .................................................. 6

Paul v. United States,

140 S. Ct. 342 (2019) ............................................ 22

Pereira v. Sessions,

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

Ry. Labor Exec. Ass’n v. Nat. Mediation

Bd., 29 F.3d 655 (D.C. Cir. 1994) .................. 18, 19

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .......................................... 14

Sackett v. EPA,

No. 21-454 (U.S. May 25, 2023) ........................... 15

United States v. Mead Corp.,

533 U.S. 218 (2001) ................................ 8, 9, 10, 22

Thomas Jefferson Univ. v. Shalala,

512 U.S. 504 (1994) ................................................ 7

iv

Tiger Lily, LLC v. U.S. Dep’t of Hous. &

Urb. Dev., 5 F.4th 666 (6th Cir. 2021) ................. 17

Valent v. Comm’r of Soc. Sec.,

918 F.3d 516 (6th Cir. 2019) ................................ 17

West Virginia v. EPA,

No. 20-1530 (U.S. June 30, 2022) ........................ 14

Constitution and Statutes

Const. Art. I, § 1 ........................................................ 22

5 U.S.C. § 553 .............................................................. 7

5 U.S.C. § 706 ........................................................ 9, 14

47 U.S.C. § 201(b) ...................................................... 13

47 U.S.C. § 202(a) ...................................................... 13

Other Authorities

Antonin Scalia, Judicial Deference to

Administrative Interpretations of

Law, 1989 Duke L.J. 511 ............................... 17, 21

Antonin Scalia, The Rule of Law as a

Law of Rules, 56 U. Chi. L. Rev. 1175

(1989) .............................................................. 13, 14

v

Berin Szóka & Corbin Barthold, The

Constitutional Revolution That

Wasn’t: Why the FTC Isn’t a Second

National Legislature, TechFreedom,

https://tinyurl.com/3wnxzk4y (June

2022) ....................................................................... 1

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev.

2118 (2016) ......................................... 11, 13, 15, 20

Cass R. Sunstein, Beyond Marbury: The

Executive’s Power to Say What the

Law Is, 115 Yale L.J. 2580 (2006) ................. 15, 16

Cass R. Sunstein, The Cost-Benefit

Revolution (2018) ............................................... 7, 8

Corbin K. Barthold, Sludge Kills, City

Journal, https://tinyurl.com/yk36

8b65 (Sept. 12, 2022) .............................................. 1

Corbin K. Barthold, West Virginia v.

EPA: Sound and Fury, Signifying

What?, WLF Legal Pulse, https://

tinyurl.com/ynj76vyf (July 5, 2022) ....................... 1

Dept. of Justice, Attorney General’s

Manual on the Administrative

Procedure Act (1948) .............................................. 9

F.A. Hayek, The Use of Knowledge in

Society, 35 Am. Econ. Rev. 519 (1945)................... 7

vi

Gonzalez v. Google, No. 21-1333, OA Tr.

(Feb. 21, 2023) ........................................................ 7

James Dunstan, The FCC, USF, and

USAC: An Alphabet Soup of Due

Process Violations, Center for

Growth and Opportunity,

https://tinyurl.com/2nbrtvj3 (Apr. 23,

2023) ....................................................................... 1

Jerry L. Mashaw, Improving the

Environment of Agency Rulemaking:

An Essay on Management, Games,

and Accountability, 57 Law &

Contemp. Probs. 185 (1994) ................................... 6

Kenneth W. Starr, Judicial Review in

the Post-Chevron Era, 3 Yale J. on

Reg. 283 (1986) ..................................................... 16

Kent Barnett & Christopher J.

Walker, Chevron in the Circuit

Courts, 116 Mich. L. Rev. 1 (2017) ...................... 17

Kisor v. Wilkie, No. 18-15, OA Tr. (Mar.

27, 2019) ................................................................. 7

Jonathan T. Molot, The Judicial

Perspective in the Administrative

State: Reconciling Modern Doctrines

of Deference with the Judiciary’s

Structural Role, 53 Stan. L. Rev. 1

(2000) .................................................................... 21

vii

Patrick A. McCarran, Improving

“Administrative Justice”: Hearings

and Evidence; Scope of Judicial

Review, 32 A. B. A. J. 827 (1946) ........................... 9

Peter Wallison, Judicial Fortitude: The

Last Chance to Rein in the

Administrative State (2018) ................................. 14

Raymond M. Kethledge, Ambiguities

and Agency Cases: Reflections After

(Almost) Ten Years on the Bench, 70

Vand. L. Rev. En Banc 315 (2017)....................... 20

Robert Percival, Environmental Law in

the Supreme Court: Highlights from

the Marshall Papers, 23 Envtl. L.

Rep. 10606 (1993) ................................................. 16

Stephen G. Breyer, Judicial Review of

Questions of Law and Policy, 38

Admin. L. Rev. 363 (1986) ................................... 19

TechFreedom, SCOTUS Should Uphold

FCC Reforms of Obsolete MediaOwnership Rules, https://tinyurl

.com/442pu326 (Nov. 23, 2020) .............................. 1

Thomas W. Merrill, Judicial Deference

to Executive Precedent, 101 Yale L.J.

969 (1992) ....................................................... 19, 20

Thomas W. Merrill, Textualism and the

Future of Chevron Deference, 72

Wash. U. L.Q. 354 (1994) ....................................... 2

viii

Thomas W. Merrill, The Chevron

Doctrine: Its Rise and Fall (2022) .................. 13, 14

Thomas W. Merrill, The Mead Doctrine:

Rules and Standards, Meta-Rules

and Meta-Standards, 54 Admin. L.

Rev. 807 (2002) ..................................................... 11

INTEREST OF AMICUS CURIAE*

TechFreedom is a nonprofit, nonpartisan think

tank based in Washington, D.C. It is dedicated to

promoting technological progress that improves the

human condition. It seeks to advance public policy

that makes experimentation, entrepreneurship, and

investment possible.

TechFreedom takes a balanced stance on the

administrative state. We oppose regulators who

attempt to exercise raw political power. We support

regulators who apply special knowledge to difficult

technical problems. When expert agencies issue

shrewd regulations, they can foster technological

dynamism. Much of our work seeks to promote this

vision of a smart, disciplined administrative state.

See, e.g., James Dunstan, The FCC, USF, and USAC:

An Alphabet Soup of Due Process Violations, Center

for Growth and Opportunity, https://tinyurl.com/

2nbrtvj3 (Apr. 23, 2023); Corbin K. Barthold, Sludge

Kills, City Journal,

https://tinyurl.com/yk368b65

(Sept. 12, 2022); Corbin K. Barthold, West Virginia v.

EPA: Sound and Fury, Signifying What?, WLF Legal

Pulse, https://tinyurl.com/ynj76vyf (July 5, 2022);

Berin Szóka & Corbin Barthold, The Constitutional

Revolution That Wasn’t: Why the FTC Isn’t a Second

National Legislature, TechFreedom, https://tinyurl

.com/3wnxzk4y (June 2022); TechFreedom, SCOTUS

Should Uphold FCC Reforms of Obsolete Media-

* No party’s counsel authored any part of this brief. No person or

entity, other than TechFreedom and its counsel, helped pay for

the brief’s preparation or submission.

2

Ownership Rules, https://tinyurl.com/442pu326 (Nov.

23, 2020).

Properly construed, Chevron v. Natural Resources

Defense Council, 467 U.S. 837 (1984), gels with

TechFreedom’s broader understanding of how the

administrative state should work. The Chevron

“doctrine” has gone too far. Agencies should not be

allowed to use any silence, “gap,” or ambiguity in a

statute to construe the law in a manner that binds the

courts. But Chevron’s core insight—that policymaking

is a task not for the courts, but for the political

branches—is correct. By deliberately placing a broad

term, such as “reasonable” or “feasible,” in a statute,

Congress may grant an agency discretion to apply its

expert judgment in limited circumstances. The Court

should ditch the Chevron doctrine, but keep the

Chevron decision.

Chevron is dead, long live Chevron.

SUMMARY OF ARGUMENT

“Textualism triumphant,” a prominent legal

scholar once remarked, “would lead to a permanent

subordination of the Chevron doctrine.” Thomas W.

Merrill, Textualism and the Future of Chevron

Deference, 72 Wash. U. L.Q. 354, 371-72 (1994). We

write to hail the arrival of that moment.

Throughout this brief, we will differentiate

between Chevron the doctrine and Chevron the

decision. Chevron the doctrine “permit[s] executive

bureaucracies to swallow huge amounts of core

judicial and legislative power.” Gutierrez-Brizuela v.

Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch,

3

J., concurring). It has rightfully come in for extensive

criticism, and should be discarded. Chevron the

decision, however, is sound. At its core, Chevron says

(1) that Congress and the administrative agencies (not

the courts) are the policymaking experts, and (2) that

Congress may, by statute, call on an agency to wield

its policymaking expertise, but (3) that, before

assuming that Congress has passed a policy matter to

an agency, a court must deploy every pertinent tool of

statutory interpretation, in an effort to nail down the

law’s meaning for itself. Chevron the decision strikes

the right balance between respect for agency

expertise, respect for congressional judgment, and

respect for the judiciary’s role as final arbiter of the

law’s meaning. Accordingly, there is no need to

overturn Chevron.

Our argument proceeds as follows:

I. Judges are not policy experts. They are (by and

large) not trained in technical subjects. The judicial

process, meanwhile, is geared toward resolving

narrow disputes. It is not designed to collect the broad

public input needed to answer general policy

questions. Contrast these traits with the workings of

administrative agencies, which are staffed with

experts, and which use the notice-and-comment

process to collect large amounts of information.

Agencies are well-equipped to craft policy. They play

an important role in our system of government.

II. Some claim that in the past, courts broadly

deferred to the Executive Branch’s reading of the law.

Others respond that, whatever may have happened in

the past (and it’s not so clear), the Administrative

4

Procedure Act codified de novo judicial review of all

questions of law pertaining to agency action. Each side

has a point. Courts should defer to agencies—but only

when it is clear that Congress intended for them to do

so.

This Court has gone astray, in certain postChevron decisions, by instructing the Judiciary to

defer to agencies even when Congress has not clearly

told the Judiciary to do so. Under the proper rule—

under Chevron, properly construed—courts should

defer to agencies only when Congress has triggered

such deference. Congress must do this deliberately

and expressly, by using open-ended terms, such as

“reasonable” or “feasible,” that unmistakably grant

agencies policymaking discretion.

III. A court can (a) grant an agency the flexibility

to regulate within the scope of an open-ended term,

and still (b) provide the last word on “what the law is.”

Marbury v. Madison, 5 U.S. 137, 177 (1803). This is no

paradox. There is nothing illegitimate, from a judicial

standpoint, about acknowledging that a term such as

“reasonable” can have a range of meanings. On the

contrary, a court that imposes its singular reading of

a word like “reasonable” moves beyond conventional

legal reasoning and usurps the policymaking

authority of the political branches. Judges fulfill their

duty when they follow an explicit and otherwise

proper direction from Congress to defer to an agency.

IV. Although it need not overrule Chevron, the

Court should “restate, and somewhat expand on,” the

decision’s limits, in order “to clear up some mixed

5

messages [it] ha[s] sent.” Kisor v. Wilkie, 139 S. Ct.

2400, 2414 (2019). Specifically, the Court should:

 Reiterate that, under Chevron, deference is

never “reflexive.” Judges are the experts—both

in fact and by constitutional directive—when it

comes to statutory interpretation, and they

should wield their expertise with vigor.

 Clarify that statutory “silence” never triggers

deference. The dicta, in Chevron, that has

caused confusion in this regard should be

renounced.

 Remind judges never to defer to an agency

before rigorously deploying the tools of

statutory interpretation. Because courts must

adhere to Chevron’s “statutory tools” proviso,

they should almost never find themselves

deferring to an agency at Chevron “step two.”

 Note that the Constitution vests all legislative

power in Congress. Although it may instruct

agencies to fill in statutes’ technical details,

Congress must make the fundamental policy

decisions itself.

 Announce that Chevron the “doctrine” is dead.

No more finding “signals” of “ambiguity” in

statutory language. No more letting agencies

fill in every perceived “gap” in an enabling

statute. If it wants to invoke an agency’s

policymaking expertise, Congress must do so

expressly, using broad terms such as

“reasonable” or “feasible.”

6

“The loss of forests necessary to make the paper to

print all of the articles written” on Chevron “might

well have justified requiring the Supreme Court to

issue an environmental impact statement along with

the opinion.” Jerry L. Mashaw, Improving the

Environment of Agency Rulemaking: An Essay on

Management, Games, and Accountability, 57 Law &

Contemp. Probs. 185, 229 n.116 (1994). It is long past

time for the Court to clear up the confusion that

sustains this professorial cottage industry. The Court

can do so by imposing a straightforward rule, under

which only a handful of broad terms, used in a small

set of circumstances, trigger Chevron deference.

ARGUMENT

I.

AGENCIES POSSESS UNIQUE EXPERTISE.

At the root of Chevron lies an impeccably correct

premise: courts lack the expertise possessed by

agencies.

As Chevron correctly noted, courts are not

legitimate or capable policymakers. They “are not part

of either political branch of the Government.” 467 U.S.

at 865. Nor are they equipped to “assess[] the wisdom

of … policy choices” or “resolv[e] … competing views of

the public interest.” Id. at 866; see also Norton v. S.

Utah Wilderness All., 542 U.S. 55, 66 (2004) (observing

that courts “lack both expertise and information” to

navigate “policy disagreements”).

Justices of all jurisprudential stripes have

acknowledged the Court’s lack of technical expertise.

In a case about gene patenting, Justice Scalia declined

7

to join the parts of the majority opinion “going into fine

details of molecular biology.” Ass’n for Molecular

Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 596

(2013). “I am unable to affirm those details on my own

knowledge or even my own belief,” he explained. Id. At

an oral argument a few years ago, Justice Breyer

noted that the FDA must decide when a “previously

approved moiety,” a “non-ester covalent bond,” and a

“lysine group” constitute “a single new active moiety.”

Kisor v. Wilkie, No. 18-15, OA Tr. 10 (Mar. 27, 2019).

“Do you know how much I know about that?” he asked.

Id. (“Right, exactly,” he added, after the gallery

laughed. Id.) Last term, the Court wisely—and

unanimously—declined to fiddle with Section 230’s

liability protections for interactive computer services.

“You know,” Justice Kagan quipped at argument,

“these are not like the nine greatest experts on the

Internet.” Gonzalez v. Google, No. 21-1333, OA Tr. 45

(Feb. 21, 2023).

Unlike courts, agencies can obtain and wield

“unique” and “significant” expertise. Kisor, 139 S. Ct.

at 2413; Thomas Jefferson Univ. v. Shalala, 512 U.S.

504, 512 (1994). Consider what’s known as the

knowledge problem—the fact that useful information

is dispersed throughout society. See F.A. Hayek, The

Use of Knowledge in Society, 35 Am. Econ. Rev. 519

(1945). Agencies are structured to deal with this

problem: they can gather and consider a wide array of

perspectives through the notice-and-comment process.

See 5 U.S.C. § 553. “The goal of notice-and-comment

rulemaking” is to enable agencies “to fill gaps in

knowledge and to see what might have been

overlooked.” Cass R. Sunstein, The Cost-Benefit

8

Revolution 88 (2018). “If the agency has inaccurately

assessed the costs and benefits [of a proposed rule],

public participation can and often will supply a

corrective.” Id. Agencies, in short, can “collect

dispersed knowledge” and “bring it to bear on official

choices.” Id.

When they stick to doing their jobs, expert

administrators spend a lot of their time grappling with

difficult questions of math, science, engineering, and

technology. “Far more than courts, agencies have the

expertise and experience necessary to design regulatory processes suited to ‘a technical and complex

arena.” Michigan v. EPA, 576 U.S. 743, 771 (2015)

(Kagan, J., dissenting) (quoting Chevron, 467 U.S. at

863).

II.

CONGRESS MAY—CAREFULLY—INVOKE

AGENCY EXPERTISE.

Chevron’s effect on judicial review of agency action

has been the subject of extensive debate. Ultimately,

that debate is best viewed as a sort of Hegelian

dialectic. The two extremes merge into a valuable

synthesis. A third way, under which, in certain

discrete instances, a court can defer to an agency’s

expertise while still having the final say over the

meaning of the law.

“Chevron,” Justice Scalia believed, “was in accord

with the origins of federal-court judicial review.”

United States v. Mead Corp., 533 U.S. 218, 241-42

(2001) (dissenting opinion). Before the Administrative

Procedure Act, he contended, “[j]udicial control of

federal executive officers was principally exercised” on

9

“writ of mandamus”—a writ that “generally would not

issue unless the executive officer was acting plainly

beyond the scope of his authority.” Id. at 242. This

meant, Scalia explained, that “statutory ambiguities

… were left to reasonable resolution by the Executive.”

Id. at 243. But cf. Pet. Br. 29-30.

In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), a

plurality of the Court concluded that the APA affirmed

the hands-off pre-APA approach described by Justice

Scalia. “Section 706” of the APA “was understood

when enacted,” the plurality maintained, “to ‘restate

the present law as to the scope of judicial review’” of

agency action. Id. at 2419 (quoting Dept. of Justice,

Attorney General’s Manual on the Administrative

Procedure Act 108 (1948)). According to the plurality,

the APA “did not proscribe [the] deferential standard”

of judicial review “then known and in use.” Id. at 2420.

But that position is contested. “In truth,” Justice

Gorsuch wrote, concurring in Kisor, “when Congress

passed the APA the law of judicial review of agency

action was in a confused state.” 139 S. Ct. at 2436.

“[M]any members of Congress,” in this telling,

“thought the APA would clarify, if not expand, the

scope of judicial review” and “‘cut down the ‘cult of

discretion’ so far as federal law is concerned.’” Id.

(quoting Patrick A. McCarran, Improving “Administrative Justice”: Hearings and Evidence; Scope of

Judicial Review, 32 A. B. A. J. 827, 893 (1946)). This

attitude finds strong support in the APA’s text, which

states that “the reviewing court shall decide all

relevant questions of law” and “interpret … statutory

provisions.” 5 U.S.C. § 706. “There is some question,”

even Justice Scalia had to concede, “whether Chevron

10

was faithful to the text of the Administrative

Procedure Act.” Mead, 533 U.S. at 241 (dissenting

opinion).

There are times, insists one side, when courts

should defer to agencies’ well-informed policy

judgments. In our system of government, responds the

other, courts, not agencies, say what the law is. Each

side makes an important point. One might even say

that each side is right. This circle can be squared.

Courts “give binding deference to permissible

agency interpretations of statutory ambiguities,”

observed Chief Justice Roberts, dissenting in City of

Arlington v. FCC, 569 U.S. 290 (2013), “because

Congress has delegated to the agency the authority to

interpret those ambiguities ‘with the force of law,’” id.

at 317 (quoting Mead, 533 U.S. at 229). “But before a

court may grant such deference,” he continued, “it

must on its own decide whether Congress … has in

fact delegated to the agency lawmaking power over the

ambiguity at issue.” Id. This passage correctly

describes how judicial review of agency action should

work. Moreover, this passage is perfectly consistent

with the Chevron decision—as opposed to the doctrine

that grew up around it.

What went wrong, in certain decisions interpreting

Chevron, is that the Court set too low a bar for

determining when Congress has “in fact” given an

agency the power to interpret “the ambiguity at issue.”

Id. Mead, 533 U.S. 218, concluded that Chevron

should apply whenever “Congress has given some

signal that the agency, rather than the court, is to be

the primary interpreter of statutory ambiguity.”

11

Thomas W. Merrill, The Mead Doctrine: Rules and

Standards, Meta-Rules and Meta-Standards, 54

Admin. L. Rev. 807, 833 (2002) (emphasis added). The

“relevant signal,” Mead tried to clarify, is “a delegation

of power to act with the force of law.” Id. But Mead

treated “‘force of law’ as (at most) a standard to be

applied by looking to a variety of factors.” Id. In truth,

therefore, Mead supplied no clarity at all.

So it was only to be expected that, following Mead,

Chevron continued to stir up controversy—including,

most notably, in City of Arlington, in which the

“disagreement” among the justices over Chevron’s

meaning was “fundamental.” 569 U.S. at 312 (Roberts,

C.J., dissenting). And City of Arlington itself only

made matters worse. Under its sweeping rule, a court

must defer to how an agency reads any ambiguity in a

statute the agency administers. 569 U.S. at 296. The

need for a “signal” from Congress—the impetus of the

Mead rule—all but evaporated. City of Arlington

doubled down on Chevron the doctrine.

City of Arlington went in exactly the wrong

direction. What the Court should have done is make

the Mead standard stricter. It should have narrowed

the domain of statutory ambiguities that signal

Congress’s intent to convey interpretative authority to

an agency. Then-Judge Kavanaugh got it right a few

years later when he wrote that, even if the Chevron

“doctrine” is abolished, “courts should still defer to

agencies in cases involving statutes using broad and

open-ended terms like ‘reasonable,’ ‘appropriate,’

‘feasible,’ or ‘practicable.’” Brett M. Kavanaugh,

Fixing Statutory Interpretation, 129 Harv. L. Rev.

2118, 2153 (2016).

12

These are explicit keywords. You could say,

without contradicting yourself, that they are clear

terms of ambiguity. They display Congress’s intent to

place a gap in a statute for the agency to fill. On this

view, Congress must use a word like “reasonable” as a

means of bluntly announcing, Here is a gap. On this

view, it remains for the courts to resolve any true

ambiguity in the statute, via conventional statutory

interpretation. The Chevron “rule,” properly

construed, is this:

A court defers to an agency’s permissible

reading of a statute only after determining, for

itself, that Congress has, through a clear signal

(a term such as “reasonable,” “appropriate,”

etc.), granted the agency the power to construe

the statutory term at issue.

This is the middle path. A balanced approach to

judicial review of agency action. An approach that

carefully “confines” itself to the “boundaries” of the

“historical justification for deferring to federal

agencies.” Michigan v. EPA, 576 U.S. at 763 (Thomas,

J., concurring). An approach that preserves Chevron,

but that understands how the Chevron “doctrine”

“badly stretch[ed] the terms of the original decision.”

Buffington v. McDonough, No. 21-972 (U.S. Nov. 7,

2022) (Gorsuch, J., dissenting from the denial of

certiorari) (slip. op. 8).

This approach stops agencies from “discovering”

new powers hidden in every statutory provision that

is less than crystal clear. But this approach embraces

the fact that the U.S. Code often instructs agencies to

exercise discretion in deciding on a “feasible,”

13

“appropriate,” etc., course of action. (Indeed, terms

such as “reasonable” are at the center of several

landmark laws. See, e.g., 47 U.S.C. §§ 201(b), 202(a).)

“This very important principle sometimes gets lost:

a judge can engage in appropriately rigorous scrutiny

of an agency’s statutory interpretation and

simultaneously be very deferential to an agency’s

policy choices within the discretion granted to it by the

statute.” Kavanaugh, supra, 129 Harv. L. Rev. at

2154.

III.

A COURT CAN BOTH DEFER TO AN AGENCY

AND DECIDE ALL QUESTIONS OF LAW.

When a word such as “reasonable” has several

possible meanings, and a court defers to an agency’s

selection of one of them, the court, one might object,

has not “appl[ied] independent judgment on all

questions of law.” Buffington, No. 21-972 (Gorsuch, J.,

dissenting from the denial of certiorari) (slip. op. 5)

(quoting Thomas W. Merrill, The Chevron Doctrine:

Its Rise and Fall 47 (2022)). But a court can in fact

(1) meaningfully defer to agency expertise while

(2) remaining in each case the final arbiter of the law’s

meaning.

Actually, when an agency stays within the bounds

of an open-ended statutory term, it is far from clear

that there is a true “question of law” for a court to

resolve. “[W]hen one does not have a solid textual

anchor or an established norm from which to derive [a]

general rule, its pronouncement appears uncomfortably like legislation.” Antonin Scalia, The Rule of Law

as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1185 (1989).

14

When it comes to terms like “reasonable” or

“appropriate,” courts quickly “reach[] the point where

[they] can do no more than consult the totality of the

circumstances,” id. at 1187, and when that occurs,

they are “acting more as fact-finders than as

expositors of the law,” id. A court is still “apply[ing]

independent judgment,” Merrill, Chevron Doctrine,

supra, at 47, and “decid[ing] all relevant questions of

law,” 5 U.S.C. § 706, therefore, when it acknowledges

that a broad statutory term has a range of permissible

meanings.

“Without strict judicial oversight,” we’re told, “the

agencies of the administrative state pose a continual

challenge to the rule of law.” Peter Wallison, Judicial

Fortitude: The Last Chance to Rein in the

Administrative State 19 (2018). Judicial oversight of

those agencies is indeed necessary. But the “challenge

to the rule of law” can come from the other direction,

too. A court that attempts to divine the One True

Meaning of an open-ended term can go beyond

deciding a question of law. “Judicial action must be

governed by standard, by rule, and [it] must be

principled, rational, and based upon reasoned

distinctions found in the Constitution or laws.” Rucho

v. Common Cause, 139 S. Ct. 2484, 2507 (2019). A

court that imposes its preferred notion of

“reasonableness” or “appropriateness” on a statute

risks “[p]revent[ing] agencies from doing important

work, even though that is what Congress directed.”

West Virginia v. EPA, No. 20-1530 (U.S. June 30,

2022) (Kagan, J., dissenting) (slip. op. 29). It risks

“depart[ing] from the demands of judicial restraint”

and “overrid[ing] the combined judgment of the

15

Legislative and Executive Branches.” Biden v.

Nebraska, No. 22-506 (U.S. June 30, 2023) (Kagan, J.,

dissenting) (slip. op. 29-30). “[T]hat is not how … the

Constitution thinks our Government should work.”

Sackett v. EPA, No. 21-454 (U.S. May 25, 2023)

(Kagan, J., concurring in judgment) (slip. op. 6).

“Chevron did not undo, and could not have undone,

the judicial duty to provide an independent judgment

of the law’s meaning” in justiciable controversies.

Buffington, No. 21-972 (Gorsuch, J., dissenting from

the denial of certiorari) (slip. op. 16). At the same time,

“Chevron makes a lot of sense in certain

circumstances.” Kavanaugh, supra, 129 Harv. L. Rev.

at 2152. Yet the tension here is minimal, the solution

simple. “Where an agency is … interpreting a specific

statutory term or phrase, courts should determine

whether the agency’s interpretation is the best

reading of the statutory text.” Id. at 2154. And where

an agency is interpreting “broad and open-ended

terms”—“feasible,” “appropriate,” and the like—

“courts should say that the agency may choose among

reasonable options allowed by the text of the statute.”

Id. at 2153-54.

IV.

KEEP THE CHEVRON DECISION; DITCH THE

CHEVRON “DOCTRINE.”

Cass Sunstein once proposed that “Chevron is

properly understood as a kind of counter-Marbury [v.

Madison] for the administrative state”—as a

declaration, in other words, that “it is emphatically

the province of the executive department to say what

the law is.” Cass R. Sunstein, Beyond Marbury: The

Executive’s Power to Say What the Law Is, 115 Yale

16

L.J. 2580, 2589 (2006). As should by now be clear, this

claim perfectly encapsulates what the Chevron

decision is not.

The “revolutionary effect” of Chevron suggested by

Sunstein (among many others) “is not apparent” from

“the opinion itself,” which “signals no break with the

past,” and which “does not explicitly overrule or

disapprove of a single case.” Kenneth W. Starr,

Judicial Review in the Post-Chevron Era, 3 Yale J. on

Reg. 283, 284 (1986). Indeed, the justices who heard

and resolved Chevron do not appear to have

“appreciate[ed]” that their “decision would effect[]” a

“major change in administrative law.” Robert

Percival, Environmental Law in the Supreme Court:

Highlights from the Marshall Papers, 23 Envtl. L. Rep.

10606, 10613 (1993).

This Court should (a) keep the Chevron decision,

which was never supposed to be anything but a

conventional application of administrative law, but

(b) roll back the Chevron doctrine, which improperly

took on a life of its own. Let’s explore some of the key

ramifications of such a ruling.

A.

Under Chevron, Deference Is Not

“Reflexive.”

Chevron says that, when a statute is ambiguous, a

“court does not simply impose its own construction on

the statute.” 467 U.S. at 843. This is an inelegant

statement. Courts should always “impose [their] own

construction on the statute.” Id. It’s just that

sometimes the construction will incorporate the

policymaking wiggle room that Congress, by using

certain open-ended terms, has explicitly conferred.

17

Under the Chevron “doctrine,” “the federal courts

have become habituated to defer to the interpretive

views of executive agencies, not as a matter of last

resort but first.” Valent v. Comm’r of Soc. Sec., 918

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

dissenting); see Kent Barnett & Christopher J.

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

Rev. 1, 33–34 (2017) (concluding, based on a review of

more than a thousand decisions, that federal courts of

appeals find ambiguity at Chevron step one around

70% of the time).

In “many cases,” courts defer to agencies “almost

reflexively, as if doing so were somehow a virtue[.]”

918 F.3d at 525 (Kethledge, J., dissenting). The

driving attitude seems to be that “modern society is

too complex to be run by legislators,” and that it is

therefore “better to leave it to the agency

bureaucrats.” Tiger Lily, LLC v. U.S. Dep’t of Hous. &

Urb. Dev., 5 F.4th 666, 674 (6th Cir. 2021) (Thapar, J.,

concurring).

“Agencies are experts at policy, but not necessarily

at statutory interpretation.” 918 F.3d at 525

(Kethledge, J., dissenting). Even if agencies are

experts as to their own enabling acts, their readings of

those acts are not owed any deference. Because courts

have “the constitutional duty … to say what the law

is,” “relative competence” is not grounds for judicial

abdication “when agency action is at issue.” Antonin

Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 514.

Deference is warranted only when the agency,

acting on Congress’s explicit directive, is determining

18

what is “reasonable,” “appropriate,” etc., within the

domain of its policymaking expertise. A court properly

affords this deference because a statute—as the court

constructs it—tells the court to do so. Cf. NFIB v. Dep’t

of Labor, 21A244 (U.S. Jan. 13, 2022) (Gorsuch, J.,

concurring) (slip op. 1) (“This Court is not a public

health authority. But it is charged with resolving

disputes about which authorities possess the power to

make the laws that govern us under the Constitution

and the laws of the land.”).

“In short,” Chevron “is not a free pass.” Arangure v.

Whitaker, 911 F.3d 333, 338 (6th Cir. 2018). It does not

allow courts to grant “reflexive deference” to agencies.

Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018)

(Kennedy, J., concurring). Courts must always engage

in a close and careful construction of the statute. They

sometimes afford an agency deference as a byproduct

of that process.

B.

Under Chevron, Statutory Silence

Does Not Trigger Deference.

The Chevron decision says that a court may have

to defer to an agency when a “statute is silent … with

respect to [a] specific issue.” 467 U.S. at 843. That line

of dicta is wrong, and the Court should repudiate it.

The logic of “silence equals ambiguity” is

boundless. If deference is triggered “any time a statute

does not expressly negate the existence of a claimed

administrative power (i.e., when the statute is not

written in ‘thou shalt not’ terms),” then “agencies

would enjoy virtually limitless hegemony.” Ry. Labor

Exec. Ass’n v. Nat. Mediation Bd., 29 F.3d 655, 671

19

(D.C. Cir. 1994). Indeed, this case is a good

illustration. Pet. Br. 43-46.

“Congressional silence usually means … not that

Congress intended the agency to decide a question of

law, but that Congress never thought about the

question.” Stephen G. Breyer, Judicial Review of

Questions of Law and Policy, 38 Admin. L. Rev. 363,

376 (1986). Yet “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). It is thus “unfaithful to the principles of

administrative law,” and “quite likely [to] the

Constitution as well,” Nat. Mediation Bd., 29 F.3d at

671, to treat statutory silence as Chevron-triggering

ambiguity.

C.

Chevron’s Two-Step Framework Is

Less Important Than Chevron’s

“Statutory Tools” Proviso.

Chevron famously set forth a two-step framework.

At step one, a court determines whether a statute is

ambiguous. If the statute is ambiguous, then, at step

two, the court accepts any “reasonable interpretation”

of the statute offered by the agency. 467 U.S. at 844.

That Chevron seemed to create a special “test” is

perhaps the biggest reason why many assumed the

existence of a new Chevron “doctrine.”

Frankly, Chevron’s two-part test doesn’t make

much sense. “If the court resolves the question at step

one, then it exercises purely independent judgment

and gives no consideration to the executive view.”

Thomas W. Merrill, Judicial Deference to Executive

Precedent, 101 Yale L.J. 969, 977 (1992). “If it resolves

20

the question at step two, then it applies a standard of

maximum deference.” Id. “[T]he two-step structure”

thus “makes deference an all-or-nothing matter.” Id.

The stakes at step one—whether a statute is deemed

“ambiguous”—are extraordinarily high. “And yet

there is no particularly principled guide for making

that clarity versus ambiguity decision.” Kavanaugh,

supra, 129 Harv. L. Rev. at 2153.

What’s worse, by announcing a formal two-part

test, Chevron wrongly gave the impression that

statutes are full of ambiguities that trigger deference.

Why have a two-part test, after all, unless each part

will play an important role in many cases? In reality,

however, few cases should move beyond step one. And

step one is easy to apply. A court need do little more

than look for clear terms of ambiguity—“reasonable,”

“appropriate,” and the like. Absent such terms, a court

should almost never find itself proceeding to Chevron

step two. Cf. 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[.]”).

Chevron states: “If a court, employing traditional

tools of statutory construction, ascertains that

Congress has an intention on the precise question at

issue, that intention is the law and must be given

effect.” 467 U.S. at 843 n.9. In hindsight, it was a

mistake to relegate this by now well-known “statutory

tools” proviso to a footnote. It is a crucial principle.

“Chevron itself reminds courts that they must do their

job before applying deference: they must first exhaust

the ‘traditional tools’ of statutory interpretation and

21

‘reject administrative constructions’ that are contrary

to the clear meaning of the statute.” Arangure, 911

F.3d at 336 (quoting Chevron, 467 U.S. at 843 n.9).

Treating Chevron’s “statutory tools” proviso as

more important than Chevron’s (rather illusory) twopart test is in no way revolutionary. As Chevron itself

acknowledges, “the judiciary is the final authority on

issues of statutory construction.” 467 U.S. at 843 n.9.

It’s worth remembering, moreover, that “the very

same statutory instructions, yielding the very same

level of ambiguity” that would, in the context of the

Chevron “doctrine,” be treated “as a delegation,” will,

“outside the administrative context,” be treated “as

ordinary legislation subject to ordinary judicial

interpretation.” Jonathan T. Molot, The Judicial

Perspective in the Administrative State: Reconciling

Modern Doctrines of Deference with the Judiciary’s

Structural Role, 53 Stan. L. Rev. 1, 79 (2000). Judges

are no strangers to statutory ambiguity. Resolving

such ambiguity is an activity at which they are the

experts.

Eliminating the overbroad Chevron “doctrine”

simply ensures that courts do what they have always

done: parse statutes and then declare, with finality,

what they mean.

D.

An Indeterminate Statute Raises

Not A Chevron Question, But A

Nondelegation Problem.

Many defenders of a broad reading of Chevron

argue that the decision created a “background rule of

law” for when “Congress … didn’t think about [a]

matter at all.” Scalia, supra, 1989 Duke L. Rev. at 517.

22

In such cases, proponents of the Chevron “doctrine”

claim, an agency can fill in statutory “gaps,” thinking

through policy on matters Congress didn’t even

consider.

That can’t be right. Chevron makes sense only

when Congress clearly and deliberately passes a policy

question to an agency. When Congress hasn’t

“th[ought] about [a] matter at all,” by contrast, it is

doubtful that either an agency or a court may take the

reins in Congress’s stead. Not, at least, in cases of any

consequence.

“[I]f we give the ‘force of law’ to agency

pronouncements on matters of private conduct as to

which ‘Congress did not actually have an intent,’ we

permit a body other than Congress to perform a

function that requires an exercise of the legislative

power.” Michigan v. EPA, 576 U.S. at 762 (Thomas, J.,

concurring) (quoting Mead, 533 U.S. at 229). Under

the Constitution, however, all legislative power is

vested in Congress. Const. Art. I, § 1. “That Congress

chose, intentionally or unintentionally, to pass [a]

difficult choice” to an agency is not, therefore, a reason

to defer to that agency. Indus. Union Dep’t v. Am.

Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist,

J., concurring). It is, rather, a reason to suspect that

“Congress … has improperly delegated that [difficult]

choice” to another branch of government. Id. at 672.

Congress may “expressly and specifically”—via

broad words such as “reasonable”—“delegate to

agencies the authority” to make “fill-up-the-details

decisions.” Paul v. United States, 140 S. Ct. 342 (2019)

(statement of Kavanaugh, J., respecting the denial of

23

certiorari). And Congress may assume that some

interstitial lawmaking will occur, both at the agencies

and in the courts, as an inevitable byproduct of

construing statutory language that (language being

what it is) can never be perfectly clear. See, e.g., Boyle

v. Utd. Tech. Corp., 487 U.S. 500, 531-32 (1988)

(Stevens, J., dissenting). But when Congress fails to

decide—or even to notice—some important policy

question, it has not thereby left a “gap” for an agency

or a court to rush in and “fill.” Id. (“There are instances

of so-called interstitial lawmaking that inevitably

become part of the judicial process. But when we are

asked … to answer questions of policy on which

Congress has not spoken, … we have a special duty to

identify the proper decisionmaker before trying to

make the proper decision.”) (cleaned up).

Under Chevron (properly understood), Congress

may not blindly pass the buck to agencies. And under

the nondelegation rule, Congress may not blindly pass

the buck either to agencies or to courts. Congress’s

options are constrained. By that, though, we mean

only that Congress must do its job. It may assign

certain difficult technical matters to agencies (if it

does so explicitly), but the tough political decisions are

for it, and it alone, to resolve. We “expect [Congress]

to make the big-time policy calls itself, rather than

pawning them off to another branch.” Biden v.

Nebraska, No. 22-506 (U.S. June 30, 2023) (Barrett, J.,

concurring) (slip. op. 9). “[T]he hard choices … must be

made by the elected representatives of the people.”

Indus. Union Dep’t, 448 U.S. at 687 (Rehnquist, J.,

concurring).

24

E.

Although Chevron’s Core Holding Is

Sound, Certain Applications Of

Chevron Are Not.

Perhaps the most jarring consequence of ditching

the Chevron “doctrine” is that Chevron itself winds up

outside the realm of Chevron. The dispute in that case

was over what qualifies as a “major stationary source”

of air pollution under the Clean Air Act Amendments

of 1977. Maybe (as the EPA argued) a “source” is an

entire power plant. Or maybe (as the environmental

groups argued) it is each discrete pollution-emitting

device. Either way, the Court should have construed

the term for itself, using the conventional tools of

statutory construction and without putting a thumb

on the scale for the Reagan EPA. (Chevron states that

this approach would have consigned its analysis to a

“sterile textual vacuum.” 467 U.S. at 863. Well, yes, in

a sense. Congress legislates entirely in words.)

Narrowing Chevron will not leave the jurisprudential landscape unscathed. We have discussed why

Mead and City of Arlington should go. No doubt other

decisions will be open to challenge as well.

As this Court’s recent aversion to the Chevron

“doctrine” confirms, however, the status quo is

unacceptable. It is time to give “the whole [Chevron

‘doctrine’] project … a tombstone no one can miss,”

Buffington, No. 21-972 (Gorsuch, J., dissenting from

the denial of certiorari) (slip. op. 16), and start afresh.

Once the work of burying the old rule is complete,

parties and judges can get on with applying a

narrower and better rule. A rule under which

Congress may trigger agency discretion only with

25

explicit terms such as “reasonable” or “feasible.” A rule

that will be clearer, easier to apply, and, above all,

more faithful to the Constitution than the Chevron

“doctrine” ever was.

CONCLUSION

The judgment should be reversed.

July 20, 2023

Respectfully submitted,

CORBIN K. BARTHOLD

Counsel of Record

BERIN SZÓKA

TECHFREEDOM

1500 K Street NW

Washington, DC 20005

(771) 200-4997

cbarthold@techfreedom.org