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

Supreme Court briefJul 21, 2023

Ask Donna

What actually matters in this document.

Text

No. 22-451

IN THE

Supreme Court of the United States

————

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

GINA RAIMONDO, 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 PROFESSOR THOMAS W. MERRILL

AS AMICUS CURIAE

IN SUPPORT OF NEITHER PARTY

————

JAMES B. SPETA

6254 N. Glenwood Ave.

Chicago, Illinois 60660

(773) 965-1624

JOSEPH D. KEARNEY

Counsel of Record

Post Office Box 2145

Milwaukee, Wisconsin 53201

(414) 313-0504

kearney89@gmail.com

Counsel for Amicus Curiae Professor Thomas W. Merrill

July 21, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, DC 20002

TABLE OF CONTENTS

Page

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

iii

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

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

ARGUMENT ........................................................

I. The Court Should Not Repudiate the

Chevron Doctrine. .....................................

A. There Is No Reason to Overrule the

Chevron Decision. ................................

B. There Is No Constitutional or

Statutory Reason to Repudiate the

Chevron Framework. ...........................

1. The Chevron Framework Does Not

Violate Article III If the Doctrine

Is Limited to Circumstances of

Congress’s Actual Delegation to

Administrative Agencies. ...............

2. The Chevron Framework Does Not

Violate Article I If It Is Limited

to Instances Where the Agency

Acts Pursuant to Its Delegated

Authority. ........................................

3. The Chevron Framework Does

Not Violate the APA but

Respects Congress’s Delegations

in Agencies’ Organic Statutes. .......

(i)

TABLE OF CONTENTS—Continued

Page

II. Other Objections to the Chevron

Framework Can Be Addressed Without

Overturning It. ..........................................

A. Legal Instability Can Be Addressed,

at “Step Two,” by Considering

Reliance Interests. ...............................

B. Bias Toward Agencies Can Be

Limited,

“Step

Two,”

Considering Agency Interpretation

Processes. .............................................

III. A Decision Repudiating the Chevron

Framework Would Be Destabilizing. .......

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

American Hosp. Ass’n v. Becerra,

142 S. Ct. 1896 (2022) ...............................

Auer v. Robins,

519 U.S. 452 (1997) ...................................

Batterton v. Francis,

432 U.S. 416 (1977) ................................... 9, 10

Becerra v. Empire Health Foundation,

142 S. Ct. 2354 (2022) ............................... 26-27

Bowen v. Georgetown Univ. Hosp.,

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

Buffington v. McDonough,

143 S. Ct. 14 (2022) ................................... 11, 24

Burnet v. Coronado Oil & Gas Co.,

285 U.S. 393 (1932) ...................................

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

Defense Council, Inc.,

467 U.S. 837 (1984) ............................... 2-6, 8-30

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) ...................................

City of Arlington v. FCC,

568 U.S. 936 (2012) ...................................

City of Arlington v. FCC,

569 U.S. 290 (2013) .................... 9, 14, 16, 17, 29

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ................................... 12, 22

TABLE OF AUTHORITIES—Continued

Page(s)

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) ..................................7, 18, 19

FDA v. Brown & Williamson Tobacco

Corp.,

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

General Elec. Co. v. Gilbert,

429 U.S. 125 (1976) ...................................

General Motors Corp. v. Ruckelshaus,

742 F.2d 1561 (D.C. Cir. 1984) (en banc) ..

Gonzales v. Oregon,

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

ICC v. Cincinnati, N.O. & Tex. Pac. R. Co.,

167 U.S. 479 (1897) ...................................

King v. Burwell,

576 U.S. 473 (2015) ...................................

Kisor v. Wilkie,

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

La. Pub. Serv. Comm’n v. FCC,

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

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ..................8, 10, 26

Michigan v. EPA,

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

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs.,

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

TABLE OF AUTHORITIES—Continued

Page(s)

Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab.,

142 S. Ct. 661 (2022) .................................

Sackett v. EPA,

143 S. Ct. 1322 (2023) ...............................

Shreveport Rate Cases,

234 U.S. 342 (1914) ...................................

Skidmore v. Swift & Co.,

323 U.S. 123 (1944) ..............................16, 18, 27

Smiley v. Citibank, N.A. (South Dakota),

517 U.S. 735 (1996) ................................... 2, 11

Swift v. Tyson,

41 U.S. (16 Pet.) 1 (1842)........................7, 18, 19

Udall v. Tallman,

380 U.S. 1 (1965) .......................................

United States v. Mead Corp.,

533 U.S. 218 (2001) ................................ 3, 15-17

Verizon Communications, Inc. v. FCC,

535 U.S. 467 (2002) ...................................

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ..........................15, 21, 23

Young v. Community Nutrition Institute,

476 U.S. 974 (1986) ...................................

TABLE OF AUTHORITIES—Continued

CONSTITUTION

Page(s)

U.S. Const. art. I ......................................14, 17, 18

U.S. Const. art. III.......................... 8, 14, 18, 19, 24

STATUTES

5 U.S.C. § 706 ................................................

15 U.S.C. § 78j(b)...........................................

Hepburn Act, 34 Stat. 584 (1906).................

OTHER AUTHORITIES

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation, 126

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

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts, 116 Mich.

L. Rev. 1 (2017) ..........................................

Kent Barnett & Christopher J. Walker,

Chevron Step Two’s Domain, 93 Notre

Dame L. Rev. 1441 (2018) .........................

Nicholas R. Bednar & Kristin E. Hickman,

Chevron’s Inevitability, 85 Geo. Wash. L.

Rev. 1392 (2017) ........................................

Philip Hamburger, Chevron Bias, 84 Geo.

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

Kristin E. Hickman & Matthew D. Krueger,

In Search of the Modern Skidmore

Standard, 107 Colum. L. Rev. 1235 (2007)

................................................................... 27-28

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Kristin E. Hickman & Aaron L. Nielson,

Narrowing Chevron’s Domain, 70 Duke

L.J. 931 (2021) ........................................... 6, 25

Anita S. Krishnakumar, Longstanding

Agency Interpretations, 83 Fordham L.

Rev. 1823 (2015) ........................................

Gary Lawson, The Ghosts of Chevron

Present and Future, B.U. School of Law

Research Paper Series No. 23-11 (Feb. 22,

2023) (forthcoming 103 B.U. L. Rev.

(2023)), https://ssrn.com/abstract=4367

469/ ............................................................

THOMAS W. MERRILL, THE CHEVRON

DOCTRINE: ITS RISE AND FALL, AND THE

FUTURE OF THE ADMINISTRATIVE STATE

(Harv. Univ. Press 2022)

.................................... 1, 4-6, 8-11, 14, 18, 21, 22

Thomas W. Merrill, Judicial Deference to

Executive Precedent, 101 Yale L.J. 969

(1992) .........................................................

Thomas W. Merrill, The Mead Doctrine:

Rules and Standards, Meta-Rules and

Meta-Standards, 54 Admin. L. Rev. 807

(2002) .........................................................

Thomas W. Merrill, Preemption and

Institutional Choice, 102 Nw. U. L. Rev.

727 (2008) ..................................................

Thomas W. Merrill, Re-Reading Chevron,

70 Duke L.J. 1153 (2021) ..........................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Thomas W. Merrill, Step Zero After City of

Arlington, 83 Fordham L. Rev. 753 (2014)

................................................................ 1, 15-16

Thomas W. Merrill & Kristin E. Hickman,

Chevron’s Domain, 89 Geo. L.J. 833

(2001) ......................................................... 1, 15

Thomas W. Merrill & Kathryn Tongue

Watts, Agency Rules with the Force of

Law: The Original Convention, 116 Harv.

L. Rev. 467 (2002) ...................................... 1, 13

Henry P. Monaghan, Marbury and the

Administrative State, 83 Colum. L. Rev. 1

(1983) .........................................................

RESTATEMENT (THIRD) OF AGENCY (ALI

2006) ..........................................................

Peter Strauss, One Hundred Fifty Cases Per

Year: Some Implications of the Supreme

Court’s Limited Resources for Judicial

Review of Agency Action, 87 Colum. L.

Rev. 1093 (1987) ........................................

Christopher J. Walker, Most Cited Supreme

Court Administrative Law Decisions,

Yale J. Reg. Notice & Comment (Oct. 9,

2014), https://www.yalejreg.com/nc/mostcited-supreme-court-administrative-lawdecisions-by-chris-walker/ ........................

INTEREST OF AMICUS CURIAE

Thomas W. Merrill is the Charles Evans Hughes

Professor at Columbia Law School.1 For more than

forty years, much of his professional life has involved

practicing, teaching, and writing in the field of

administrative law. This work has focused on how

much weight courts should give administrative

interpretations of law in different contexts.2 He has

filed or written several previous amicus briefs in the

Court on this topic.3

No party or party’s counsel authored this brief in whole or in

part, and no one other than amicus curiae or his counsel made a

monetary contribution intended to fund the preparation or

submission of the brief.

See, e.g., THOMAS W. MERRILL, THE CHEVRON DOCTRINE: ITS

RISE AND FALL, AND THE FUTURE OF THE ADMINISTRATIVE STATE

(Harv. Univ. Press 2022); Thomas W. Merrill, Step Zero After City

of Arlington, 83 Fordham L. Rev. 753 (2014); Thomas W. Merrill,

Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727

(2008); Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules

with the Force of Law: The Original Convention, 116 Harv. L. Rev.

467 (2002); Thomas W. Merrill, The Mead Doctrine: Rules and

Standards, Meta-Rules and Meta-Standards, 54 Admin. L. Rev.

807 (2002); Thomas W. Merrill & Kristin E. Hickman, Chevron’s

Domain, 89 Geo. L.J. 833 (2001); Thomas W. Merrill, Judicial

Deference to Executive Precedent, 101 Yale L.J. 969 (1992).

Br. for Prof. Thomas Merrill as Amicus Curiae, Kisor v. Wilkie,

139 S. Ct. 2400 (2019) (No. 18-15); Br. for the Nat’l Governors

Ass’n et al. as Amici Curiae, City of Arlington v. FCC, 569 U.S. 290

(2013) (Nos. 11-1545 & 11-1547); Br. for the Nat’l Governors Ass’n

et al. as Amici Curiae, Cuomo v. Clearing House Assn., L.L.C., 557

U.S. 519 (2009) (No. 08-453); Br. for Ctr. for State Enforcement of

Antitrust & Consumer Protection Laws, Inc., as Amicus Curiae,

Wyeth v. Levine, 555 U.S. 555 (2009) (No. 06-1249); Br. for Ctr. for

State Enforcement of Antitrust and Consumer Protection Laws,

Inc., as Amicus Curiae, Watters v. Wachovia Bank, N.A., 550 U.S.

1 (2007) (No. 05-1342); Br. for Prof. Thomas W. Merrill as Amicus

SUMMARY OF ARGUMENT

Petitioner has asked the Court to “overrule

Chevron.” Pet. i–ii.4 In evaluating this request, it is

necessary to determine what is meant by “Chevron.”

Most commonly, Chevron refers to a framework for

reviewing interpretations by agencies of the statutes

that they administer: first, a court exercises

independent judgment to ascertain whether Congress

has answered the question; if not, the court considers

whether the agency’s interpretation is a reasonable

one. On a few occasions, however, this Court has

suggested that Chevron stands for a much more farreaching idea: namely, a fixed presumption that

agencies have primary authority to resolve any and all

ambiguities in the statutes they administer. See, e.g.,

Smiley v. Citibank, N.A. (South Dakota), 517 U.S. 735,

740–41 (1996).

If Chevron is understood in this latter way, as a fixed

presumption of agency primacy in matters of statutory

interpretation, it raises serious questions about its

compatibility with the duty and role of courts. This

maximalist view of Chevron is also open to the

objections that it promotes legal instability and

introduces a bias in favor of agencies at the expense of

those that they regulate. Such a conception of Chevron

is indeed problematic.

Curiae, United States v. Mead Corp., 533 U.S. 218 (2001) (No. 991434).

The Court granted the petition as to Question 2: “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.”

When properly understood in the former and more

common way, as a framework for reviewing

interpretations by agencies of the statutes they

administer, the objections that have been directed at

Chevron largely disappear. The constitutional and

statutory objections are answered by clarifying that

the Chevron framework requires a judicial

determination that Congress has actually delegated

authority to the agency to regulate with respect to the

matter at hand, as the Court held in United States v.

Mead Corp., 533 U.S. 218 (2001). And even when the

agency has authority to regulate, other contextual

variables may indicate that it was not given authority

to interpret the precise question at issue. Other

concerns recede as well. The objection based on legal

instability can be ameliorated by emphasizing that a

reasonable agency interpretation is one that considers

reliance interests created by past agency decisions.

And the objection based on agency bias can be

addressed by making clear that a reasonable agency

interpretation must be the result of an appropriate

interpretive process by the agency.

The Chevron framework has been applied in

thousands of cases and has proved to be a useful and

appropriate way for agencies, parties, and judges to

organize their consideration of relevant variables.

Like other doctrines for determining the respective

roles of different institutions in determining the

meaning of the law, the framework has undergone a

process of refinement and clarification over time. The

Chevron framework, as appropriately refined or

clarified, should be reaffirmed.

ARGUMENT

I. The Court Should Not Repudiate the

Chevron Doctrine.

The Chevron doctrine derives in part from two

paragraphs in Chevron U.S.A. Inc. v. Natural

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

which have become canonical. The decision itself did

not proceed by mechanically applying these

paragraphs, yet their language has sometimes been

invoked to support an unfortunate “maximalist”

version of Chevron. In fact, properly understood, both

the case generally and the much-cited paragraphs

were not a fundamental break with the past and are

traceable to important rule-of-law values. See THOMAS

W. MERRILL, THE CHEVRON DOCTRINE: ITS RISE AND

FALL, AND THE FUTURE OF THE ADMINISTRATIVE STATE

ch. 1 (Harv. Univ. Press 2022) (setting out general

interpretive values); id. ch. 2 & at 53–54 (summarizing

Chevron’s relationship to pre-Chevron decisions).

There is no reason for overruling: The Chevron

doctrine is, in fact, an appropriate framework for

judicial decisionmaking, even as it may need some

clarification.

See id. at 230–42 (describing

appropriately clarified Chevron structure).

A. There Is No Reason to Overrule the

Chevron Decision.

In asking the Court to “overrule Chevron,”

petitioners should not be taken to mean that the Court

should overrule the Chevron decision. There is no

reason to overrule that decision unless the Court

believes that it was wrong to interpret “stationary

source” for purposes of the nonattainment provisions

of the Clean Air Act as meaning the entire plant as

opposed to individual apertures within a plant. The

precise holding of the Chevron decision has been

settled for nearly forty years and has no bearing on the

controversy in the present case.

There is a second reason why it would be

inappropriate to “overrule” the Chevron decision.

Although the canonical statement of the “two

questions” or two-step approach to judicial review of

agency determinations of law is found in early

paragraphs in the Chevron opinion, 467 U.S. at 842–

43, a close reading of the case makes plain that the

two-step framework was not used by the Court there.5

Instead, the opinion by Justice Stevens carefully

examined the relevant text of the Clean Air Act,

related statutory provisions, potentially relevant

canons of interpretation, legislative history, the EPA’s

efforts to resolve the issue, and competing arguments

based on policy—concluding that none of these

conventional tools of statutory interpretation

precluded the agency’s definition. The two-step idea

was not employed in the case. It is not the Court’s

practice to overrule past decisions in order to disclaim

particular dicta.

To be sure, the two-step idea that appears as dictum

in Chevron eventually became a settled mode of

analysis for reviewing agency interpretations of law.

What came to be called “the Chevron doctrine” was

first deployed by the D.C. Circuit. See General Motors

Corp. v. Ruckelshaus, 742 F.2d 1561, 1566–67 (D.C. Cir.

1984) (en banc). This Court initially applied it in 1986.

See Young v. Community Nutrition Institute, 476 U.S.

974, 980 (1986). Its use as a framing device gradually

For a detailed explication, see Thomas W. Merrill, Re-Reading

Chevron, 70 Duke L.J. 1153 (2021); MERRILL, THE CHEVRON

DOCTRINE ch. 3.

spread, in fits and starts, as Members of the Court

found it useful in one or more cases presenting issues

of judicial review of agency interpretations of law. See

MERRILL, THE CHEVRON DOCTRINE, at 80–97. The

Chevron doctrine became an accepted mode of

analysis, spreading throughout the federal judicial

branch. Eventually, Chevron became one of the mostcited opinions in American public law. And not just

cited: its two-step mode of analysis has been used by

this Court in more than 100 decisions. See Kristin E.

Hickman & Aaron L. Nielson, Narrowing Chevron’s

Domain, 70 Duke L.J. 931, 1000–13 (2021).

Given its origins and its gradual acceptance by

different Members of the Court, the Chevron doctrine

has been refined over time in a series of decisions,

many of which clarify and in some cases limit the

doctrine. “Chevron,” then, is not so much a case as a

framing device that courts have used in reviewing

agency interpretations of law.

So the precise

formulation of the question before the Court is

whether it should repudiate this established

framework for judicial review.

Because the Chevron framework has been regarded,

at least until recently, as a settled aspect of federal law,

the factors relevant to whether it should be

disapproved or repudiated are similar but not

identical to those that have been applied in

determining

whether

overrule

precedent

established in a single particular case. It is relevant

that hundreds of federal judges in thousands of cases

have relied upon it as a useful framing device. At the

same time, the Court’s multiple refinements of the

doctrine, and the disagreements among Members of

the Court about the proper formulation and legal

status of the doctrine, indicate that the legal

community should have no strong expectation that the

Court will not make further refinements in this

framing device. Compare Kisor v. Wilkie, 139 S. Ct.

2400, 2414–18 (2019) (reaffirming the doctrine of

“Auer deference” but setting forth “various

circumstances in which such deference is

‘unwarranted’” and “taking the opportunity to restate,

and somewhat expand on, [its] principles”).

B. There Is No Constitutional or Statutory

Reason to Repudiate the Chevron

Framework.

The Court has rarely seen fit to repudiate a

longstanding framing device for determining the

appropriate source of a rule of law. Kisor, which

considered whether to disclaim the doctrine of Auer v.

Robins, 519 U.S. 452 (1997), is one example of the

Court’s considering whether to do so. Another is Erie

R. Co. v. Tompkins, 304 U.S. 64 (1938), disapproving

the practice, beginning with Swift v. Tyson, 41 U.S. (16

Pet.) 1 (1842), of applying general common law in

diversity cases. Erie is particularly instructive since it

considered whether it was appropriate to “disapprove”

a “doctrine” for determining the content of law that

had been followed for 96 years and that federal courts

had applied in countless decisions. See 304 U.S. at 69

(“The question for decision is whether the oftchallenged doctrine of Swift v. Tyson shall now be

disapproved.”) (footnote omitted). The Court in Erie

offered two justifications for deciding to reject the

longstanding Swift doctrine: “the unconstitutionality

of the course pursued has now been made clear, and

compels us to do so,” and the doctrine was inconsistent

with the original meaning of a foundational federal

statute, the Rules of Decision Act. Id. at 71–73, 77–78.

Both types of arguments—constitutional and

statutory—have been advanced against Chevron.

These arguments rest on a maximalist conception of

the Chevron doctrine—one that requires reviewing

courts to accept any reasonable interpretation by

an agency of the statute it administers whenever

that statute requires interpretation.

With the

understanding or clarification that this is not what the

Chevron framework means, neither type of argument

provides a basis for repudiating Chevron.

See

generally MERRILL, THE CHEVRON DOCTRINE.

1. The Chevron Framework Does Not

Violate Article III If the Doctrine Is

Limited

Circumstances

Congress’s Actual Delegation to

Administrative Agencies.

One assertion has been that Chevron violates a basic

precept of Article III of the Constitution, namely, that

“[i]t is emphatically the province and duty of the

judicial department to say what the law is.” Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). In other

words, the argument goes, Chevron deference

derogates the unfailing duty of federal courts to

exercise independent judgment in resolving issues of

law in cases that come before them. See, e.g., Michigan

v. EPA, 576 U.S. 743, 761–62 (2015) (Thomas, J.,

concurring).

But the judicial duty to exercise independent

judgment in declaring the law is not violated if a court

concludes, in the exercise of independent judgment,

that Congress has instructed the court to defer to the

understanding of the law as determined by an

administrative agency. As the Chief Justice has

explained: “We do not ignore [Marbury’s] command

when we afford an agency’s statutory interpretation

Chevron deference; we respect it. We give binding

deference to permissible agency interpretations of

statutory ambiguities because Congress has delegated

to the agency the authority to interpret those

ambiguities ‘with the force of law.’” City of Arlington v.

FCC, 569 U.S. 290, 317 (2013) (dissenting opinion). See

also Henry P. Monaghan, Marbury and the

Administrative State, 83 Colum. L. Rev. 1, 27–28 (1983)

(“the court is not abdicating its constitutional duty to

‘say what the law is’ by deferring to agency

interpretations of law: it is simply applying the law as

‘made’ by the authorized law-making entity”).

The paragraphs in Chevron that became the source

of the Chevron doctrine acknowledged the point.

Sometimes, the Court noted, Congress enacts “an

express delegation of authority to the agency to

elucidate a specific provision of the statute by

regulation.” 467 U.S. at 843–44. That is most obvious

in a provision, such as section 10(b) of the Securities

Exchange Act of 1934, that instructs an agency to give

meaning to a general statutory term through rules and

regulations. See 15 U.S.C. § 78j(b) (outlawing “any

manipulative or deceptive device or contrivance in

contravention of such rules and regulations as the

Commission may prescribe . . . for the protection of

investors”); MERRILL, THE CHEVRON DOCTRINE, at 49–

51 (noting this principle in pre-Chevron law); id. at 233

(identifying post-Chevron cases and summarizing how

the principle applies in an appropriate Chevron

framework).

Legislative regulations adopted

pursuant to such delegations, the Chevron Court

correctly observed, “are given controlling weight

unless they are arbitrary, capricious, or manifestly

contrary to the statute.” 467 U.S. at 844 (citing, inter

alia, Batterton v. Francis, 432 U.S. 416, 424–26 (1977),

which upheld a regulation adopted pursuant to an

express delegation to define “unemployment”). The

Court went on to suggest that a “delegation [that] is

implicit rather than explicit” should be given a similar

degree of deference. Id.

The Court in Chevron did not spell out what it

meant by an “implicit” delegation of power to interpret.

Respect for implicit delegations can be squared with

the duty of federal courts to exercise independent

judgment about the meaning of the law, provided that

an implicit delegation is understood always to mean

an actual delegation, as determined by a careful

examination by the reviewing court of the statute in

question. In other words, if the reviewing court

determines that Congress actually—if implicitly—

intended that the agency exercise primary authority

to interpret a statutory provision, subject to review for

the agency’s reaching “a reasonable interpretation,”

id., then there is no violation of the judicial duty to

“say what the law is.” Indeed, this is supported by

Marbury itself, which states immediately following the

“duty” sentence: “Those who apply the rule to

particular cases, must of necessity expound and

interpret that rule.” 5 U.S. (1 Cranch) at 177. See

MERRILL, THE CHEVRON DOCTRINE, at 196. Where

Congress has delegated rule application to an agency,

the agency necessarily is an “expound[er] and

interpret[er].” See id. ch. 10 (“The Principle of

Legislative Supremacy”).6

The common law of agency similarly has long recognized that

an agent’s “actual” authority includes both the authority

expressly granted and that implicit in the express grant. See, e.g.,

RESTATEMENT (THIRD) OF AGENCY § 2.02(1) (ALI 2006) (“An agent

has actual authority to take action designated or implied in the

principal’s manifestations to the agent”).

The need to ground deference to the agency in a

finding of actual delegation of interpretive authority

has been unhelpfully obscured by a handful of postChevron decisions appearing to assume that such a

delegation will be presumed whenever the reviewing

court finds an “ambiguity” in a statute that generally

delegates regulatory authority to an agency. See, e.g.,

Smiley, 517 U.S. at 740–41 (“We accord deference to

agencies under Chevron . . . because of a presumption

that Congress, when it left ambiguity in a statute

meant for implementation by an agency, understood

that the ambiguity would be resolved, first and

foremost, by the agency, and desired the agency (rather

than the courts) to possess whatever degree of

discretion the ambiguity allows.”); Nat’l Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 980 (2005) (“In Chevron, this Court held that

ambiguities in statutes within an agency’s jurisdiction

to administer are delegations of authority to fill the

statutory gap in reasonable fashion.”); see also

Buffington v. McDonough, 143 S. Ct. 14, 18 (2022)

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

(discussing the rise of this broader interpretation).7

Unfortunately, the term “ambiguous” is itself

ambiguous. It could mean that a word or phrase can

be reasonably interpreted in more than one way. Or,

more expansively, it could mean that a statutory

provision requires interpretation for any reason—

including that it fails to address the question

altogether. With the expansive meaning, the approach

For a more in-depth discussion of Smiley and related cases,

see MERRILL, THE CHEVRON DOCTRINE, at 184–89. For the better

path forward than Smiley’s maximalist approach, see id. at 230–

42.

of treating any ambiguity as an implicit delegation to

the agency would in effect transfer primary

interpretive authority to a qualifying agency

whenever a statute requires interpretation. Such an

understanding would indeed be in tension with the

idea that federal courts have a duty to “say what the

law is” in all cases that come before them.

Happily, the Court, applying the Chevron

framework, usually has not understood agencies to

exercise delegated authority whenever the statute

they administer requires interpretation. Instead, in

order to confirm that Congress has actually if

implicitly delegated interpretive authority to an

agency, the Court has engaged in statutory analysis,

considering the nature of the agency, the history of the

regulation in question, and the importance of the

question in the context of the statutory scheme. This

is the way the Chevron decision itself proceeded. 467

U.S. at 845–66; see supra p. 5. Such a careful analysis

is similarly characteristic of numerous post-Chevron

decisions. Sometimes the Court has concluded that

Congress’s use of a general term in a statute

constitutes an implicit delegation of interpretive

authority to the agency administering those

provisions. See, e.g., Verizon Communications, Inc. v.

FCC, 535 U.S. 467 (2002) (concluding that a directive

to the FCC to determine the “cost” of providing

elements of telephone service includes the authority to

interpret the term to mean forward-looking cost);

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009)

(concluding that a directive to establish emissions

controls based on “best technology,” when considered

in context with more-limiting statutory terms, permits

the agency to consider the costs of different standards).

In other instances, Congress has created penalties for

violation of agency rules and orders or otherwise given

legal effect to specific agency action, and each of these,

too, indicates a delegation to the agency to interpret

the statute. See Thomas W. Merrill & Kathryn Tongue

Watts, Agency Rules with the Force of Law: The

Original Convention, 116 Harv. L. Rev. 467, 576–90

(2002). At other times, by contrast, the Court has

concluded that a consideration of the context of a

statutory term reveals that no implicit delegation was

intended. See, e.g., King v. Burwell, 576 U.S. 473, 486

(2015) (concluding that Congress had not delegated

authority under the Affordable Care Act “to the IRS”);

Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (refusing

to interpret the Controlled Substances Act to give the

Attorney General authority to make “quintessentially

medical judgments”); FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 143–56 (2000) (to find

authority in the FDA to regulate tobacco products

would be inconsistent with legislation subsequent to

the original FDCA). And the basic principles of how to

interpret implicit delegations of authority well

antedate Chevron.8

For example, compare two landmark cases decided under the

1887 Interstate Commerce Act: ICC v. Cincinnati, N.O. & Tex. Pac.

R. Co., 167 U.S. 479 (1897), which held that the act, creating the

ICC, requiring all carrier-proposed rates to be “reasonable and

just,” and authorizing the agency “to execute and enforce the

provisions of this act,” did not implicitly delegate authority to the

agency “to prescribe rates which should control in the future,” id.

at 500, 505–06 (emphasis added) (eventually leading in 1906 to

the Hepburn Act, 34 Stat. 584), and the Shreveport Rate Cases,

234 U.S. 342 (1914), where the Court held that the 1887 act’s

grant of authority to the ICC to regulate interstate rates and to

guard against unreasonable discrimination did implicitly

delegate authority to the agency to regulate intrastate rates

affecting interstate rates.

In short, the Article III objection to the Chevron

framework can be answered by clarifying that it is not

enough that a statute administered by an agency

requires interpretation. The Chevron framework

applies only if Congress has either expressly or

implicitly (but actually) delegated interpretive

authority to an agency to resolve the issue presented.

See generally MERRILL, THE CHEVRON DOCTRINE ch. 11

(“Discerning the Boundaries of Agency Authority to

Interpret”).

2. The Chevron Framework Does Not

Violate Article I If It Is Limited to

Instances Where the Agency Acts

Pursuant to Its Delegated Authority.

A second constitutional objection to the Chevron

framework is that it undermines the grant of “[a]ll

legislative powers” to Congress in Article I of the

Constitution. See, e.g., City of Arlington, 569 U.S. at

327 (Roberts, C.J., dissenting). This Court has

repeatedly recognized that “[a]dministrative agencies

are creatures of statute” and “accordingly possess only

the authority that Congress has provided.” Nat’l Fed’n

of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 665 (2022)

(per curiam); accord Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204, 208 (1988); La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355, 374 (1986); Chrysler Corp. v. Brown, 441

U.S. 281, 302 (1979). The Chevron framework has been

characterized as providing an inadequate basis for

enforcing

this

important

separation-of-powers

principle.

If reviewing courts must accept all

reasonable administrative interpretations that

implicate the scope of an agency’s authority, the

argument runs, then an agency can exploit this

interpretive discretion to expand or contract the scope

of its authority without a meaningful judicial check.

The Court recently answered this objection in part

by recognizing what it has called the major questions

doctrine: novel agency interpretations that address

highly consequential economic and political questions

require clear congressional authorization; statutory

ambiguity is not enough. West Virginia v. EPA, 142

S. Ct. 2587 (2022). But only a small percentage of

agency initiatives involve major questions; certainly,

the decision of the National Marine Fisheries Service

at issue here cannot be thus characterized. And the

principle that agencies must abide by limitations on

their authority applies to all forms of agency action,

major and minor alike. So if the Chevron framework

provides an inadequate basis to ensure that agencies

act within the scope of their delegated authority, then

this is a serious deficiency, affecting all but the small

minority of agency initiatives that can be

characterized as major questions.

Fortunately, the Court has already provided the

appropriate qualification of the Chevron framework,

designed to ensure that the heightened deference

associated with that framework applies only when the

agency acts within the scope of its delegated authority

to regulate. In United States v. Mead Corp., 533 U.S.

218 (2001), the Court held (8–1) that Chevron

deference is appropriate only where an agency has

been delegated authority to act with the force of law

and the interpretation in question has been rendered

in the exercise of such authority. Id. at 226–27. These

preconditions to applying the Chevron framework, the

Court made clear, must be resolved by the reviewing

court as a matter of independent judgment. See id. at

229–31. That is, they must be considered at what

“might be called step zero.” Thomas W. Merrill &

Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J.

833, 836 (2001); see also Thomas W. Merrill, Step Zero

After City of Arlington, 83 Fordham L. Rev. 753 (2014).

If the preconditions are not met, then the agency

interpretation is entitled, at most, to the type of

deference associated with Skidmore v. Swift & Co., 323

U.S. 134 (1944). Mead has thus already established

that, as a precondition to applying the Chevron

framework, the reviewing court must determine, as a

matter of independent judgment, that the agency is

acting within the scope of its delegated authority to

regulate.

The Court did not call this understanding into

question in its subsequent decision in City of Arlington

v. FCC, 569 U.S. 290 (2013). The decision rejected the

proposition that there is a separate exception to the

Chevron framework for “jurisdictional” questions. The

Court explained that there is no separate category of

jurisdictional questions in the administrative law

context, because all limits on agency authority are

effectively jurisdictional, in the sense that the

violation by an agency of any limitation on its

authority renders its action ultra vires. Id. at 297–98.

In reaching this decision, the Court did not question

the holding of Mead, which limited Chevron deference

to agency interpretations that have the force of law.

Indeed, it held that the Mead precondition was

satisfied in that case. Id. at 306.9

The Court’s opinion in Arlington (by Justice Scalia) and the

dissenting opinion (by the Chief Justice) disagreed about the

specificity with which a reviewing court must determine that an

agency has been delegated authority to act with the force of law.

But all agreed that Mead requires that such a delegation be

identified before the Chevron framework applies. Compare 569

U.S. at 306 (majority) with id. at 308–10 (Breyer, J., concurring)

and id. at 322–24 (dissent). And no one disagreed with this

proposition of the Chief Justice: “Courts defer to an agency’s

interpretation of law when and because Congress has conferred

Moreover, Arlington declined to review whether the

FCC had actual authority to regulate the matter at

issue, which concerned whether local government

agencies must process applications to construct

wireless transmission towers within a reasonable

period of time. Id. at 294–95. The Court agreed to

hear only the relatively abstract question whether

Chevron should apply to an agency’s determination of

its own “jurisdiction.”10 Arlington thus cannot stand

for the proposition that courts should not exercise

independent judgment in determining whether an

agency is acting within the scope of its authority to

regulate. Mead establishes that Chevron applies only

when an agency has authority to regulate. Arlington

merely holds that when an agency is properly

regulating, there is no additional limitation on

Chevron for agency interpretations that can be said to

be “jurisdictional.”

The Article I objection to the Chevron framework—

that it provides an inadequate basis to ensure that

agencies act within the scope of their delegated

authority—can therefore be answered by a simple

reaffirmation of Mead, with the clarification (really the

on the agency interpretive authority over the question at issue.

An agency cannot exercise interpretive authority until it has it;

the question whether an agency enjoys that authority must be

decided by a court, without deference to the agency.” Id. at 312

(dissent).

The Court granted the petitions “limited to” the question

whether Chevron should apply to an agency’s determination of its

own “jurisdiction” and denied review of the additional questions

about whether the FCC could limit local authority over wireless

transmission towers. 568 U.S. 936 (2012) (order on certiorari in

two underlying cases); see Pet., City of Arlington v. FCC, 569 U.S.

290 (2013) (No. 11-1545); Pet., City of Arlington v. FCC, 569 U.S.

290 (No. 11-1547).

observation) that an agency can act with the force of

law only if it has been delegated authority to regulate

with respect to the question presented. See MERRILL,

THE CHEVRON DOCTRINE, at 266.

The answer to the Article I objection is thus similar

to the answer to the Article III objection: Chevron

deference should be limited to actual (whether express

or implicit) delegations of authority from Congress.

This is so even though the objections are distinct. The

Article I objection turns on whether Congress has

actually delegated authority to the agency to regulate

with the force of law in the area in which the precise

question arises. A negative answer to that question

will necessarily resolve the Article III objection: an

agency’s interpretation offered with respect to an issue

as to which it has no delegated authority to regulate

will be entitled at most to Skidmore treatment, but not

Chevron deference. A positive answer to the question

will not, however, necessarily satisfy the Article III

objection. It is possible that even when an agency

offers an interpretation with respect to an issue as to

which it has authority to regulate, context-specific

factors will reveal that Congress had no actual intent

to delegate to the agency authority to interpret with

respect to that issue. See supra pp. 13 (citing cases),

8–14 (answering Article III objection).

3. The Chevron Framework Does Not

Violate the APA but Respects

Congress’s Delegations in Agencies’

Organic Statutes.

The Court in Erie also cited a statutory reason for

disapproving the doctrine of Swift v. Tyson. This was

based on “the more recent research of a competent

scholar” suggesting that the Rules of Decision Act,

adopted as part of the Judiciary Act of 1789, was

intended to encompass state common law as well as

statutory rules of decision. 304 U.S. at 72–73.

Similarly, it has been argued that the Administrative

Procedure Act, enacted in 1946, establishes a standard

of review precluding Chevron-style deference to

agency interpretations of law.

The APA, in Section 706, includes a number of

provisions relevant to the “[s]cope of review” a court is

to apply in reviewing agency action. The introductory

statement says that “[t]o the extent necessary to

decision and when presented, the reviewing court

shall decide all relevant questions of law.” 5 U.S.C.

§ 706. Subsections go on to provide that the reviewing

court shall “hold unlawful and set aside agency action,

findings, and conclusions found to be—(A) arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law” or “(C) in excess of statutory

jurisdiction, authority, or limitations, or short of

statutory right.” Id. § 706(2). On any fair reading,

these provisions direct courts to exercise independent

judgment in determining whether the agency has

complied with all relevant provisions of law.

If the Chevron framework were interpreted as

requiring reviewing courts to accept any agency

interpretation that is reasonable, it would be

inconsistent with the APA’s directive to exercise

independent judgment in resolving “all relevant

questions of law.” But as noted above in connection

with the Article III objection, the Chevron framework

does not violate this injunction if the court concludes,

as a matter of independent judgment, that Congress

has actually (even if implicitly) delegated authority to

an agency to exercise primary authority in

interpreting the law. Nor does a reviewing court

violate the injunction to determine whether the

agency has acted “in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right” if

it concludes, as a matter of independent judgment,

that Congress has expressly or implicitly (but always

actually) delegated authority to the agency to act with

the force of law to regulate in the matter in which the

contested issue of law arises.

So the APA objection—like the constitutional

objections—fails, provided that the Chevron

framework is understood to be limited to

circumstances in which Congress has actually

delegated authority to the agency to interpret.

II. Other

Objections

the

Chevron

Framework Can Be Addressed Without

Overturning It.

The Chevron framework has elicited other

objections, principally (1) that it promotes instability

in the law by allowing successive administrations to

adopt conflicting interpretations of the law’s

requirements and (2) that the framework creates a

systematic bias in favor of agencies at the expense of

persons affected by their directives. These objections

are serious, but they are best addressed, as with the

constitutional and APA objections, by reaffirming or

clarifying important limitations on the Chevron

framework.

A. Legal Instability Can Be Addressed, at

“Step Two,” by Considering Reliance

Interests.

A prominent objection to the Chevron framework is

that, by allowing successive administrations to adopt

different but “reasonable” interpretations of statutory

terms (even wholly opposite interpretations), it

generates instability in the law. When this happens,

persons subject to agency regulation can fairly claim

that they are being whipsawed by ever-changing legal

requirements, creating great uncertainty about their

legal obligations and making long-term planning

difficult. The proper interpretation of the Clean Air

Act, insofar as it applies to climate change, provides a

prime illustration. The Bush II Administration

interpreted

the

act

narrowly, the

Obama

Administration broadly, the Trump Administration

reverted to narrow interpretation, and the Biden

Administration wants to go broad again. This was

effectively the source of the dispute in West Virginia.11

In the era before Chevron, this kind of regulatory

flip-flopping would have been met with judicial

skepticism. The courts frequently said that they

would give “weight” (sometimes “great deference” or

“controlling

weight”)

interpretations

contemporaneous with enactment of a statute or

consistently maintained over a significant period of

time. See, e.g., Udall v. Tallman, 380 U.S. 1, 16–18

(1965) (and cases cited). Agency interpretations

inconsistent with past readings, in contrast, were

viewed skeptically and given little or no “weight.” See,

e.g., General Elec. Co. v. Gilbert, 429 U.S. 125, 143

(1976) (“We have declined to follow administrative

guidelines in the past where they conflicted with

earlier pronouncements of the agency.”).

This

privileging of agency consistency created an incentive

for agencies to adhere to settled understandings,

which promoted the ability of regulated entities to rely

Other examples of by-administration flip-flopping are

discussed in MERRILL, THE CHEVRON DOCTRINE, at 163–64, 207–

14, 317 n.28.

on administrative interpretations laid down in the

past.

In Chevron itself, respondents argued that the EPA’s

interpretation of “stationary source” was entitled to no

weight because the agency had changed its mind about

whether this referred to an entire plant or to any

emission source within the plant. 467 U.S. at 863. The

Court rejected this argument in the particular case,

commenting that “[a]n initial agency interpretation is

not instantly carved in stone. On the contrary, the

agency, to engage in informed rulemaking, must

consider varying interpretations and the wisdom of its

policy on a continuing basis.” Id. at 863–64. Yet the

canons giving an interpretation extra “weight” if it is

contemporaneous with enactment of a statute or if it

is maintained in a consistent and longstanding fashion

date to the early decades of our Republic, and they

keep popping up, even in decisions applying the

Chevron framework. See, e.g., Entergy Corp., 556 U.S.

at 224 (“While not conclusive, it surely tends to show

that the EPA’s current practice is . . . reasonable . . .

that the agency has been proceeding in essentially this

fashion for over 30 years.”).12

The concern about sudden changes in agency

interpretation also appears in the Court’s recent major

question decisions, given the characterization of the

See Aditya Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 126 Yale L.J. 908, 942 (2017); Anita S.

Krishnakumar, Longstanding Agency Interpretations, 83

Fordham L. Rev. 1823 (2015). MERRILL, THE CHEVRON DOCTRINE,

at 66–67, explains that in Chevron it was not the case that the

agency had been unable to make up its mind about the best

definition of “stationary source”; rather, the Court rejected the

argument based on flip-flopping because the agency’s oscillating

interpretations had been dictated by the D.C. Circuit.

agency actions under consideration as entailing

“novel,”

“unheralded,”

and

“unprecedented”

interpretations. See West Virginia, 142 S. Ct. at 2605,

2608; see also Sackett v. EPA, 143 S. Ct. 1322, 1365

(2023) (Kavanaugh, J., concurring in judgment) (a

“longstanding and consistent agency interpretation

reflects and reinforces the ordinary meaning of the

statute”).

To discourage agencies from using the Chevron

framework to implement repeated changes in the law,

the Court should reaffirm the “contemporaneous” and

“longstanding” canons by affording more or less weight

to agency interpretations, according to whether they

conform to settled expectations about the law. The

appropriate way to do so would be to incorporate these

canons into Chevron’s step two, which asks whether

the agency’s interpretation is “reasonable.” Favoring

settled expectations and preserving reliance interests

should not be absolute. If an agency in the exercise of

delegated authority can assemble the data and

arguments in support of a course correction, the

reviewing court should give the agency’s position

respectful consideration. But if the reviewing court

perceives that the agency is simply oscillating between

one administration’s political platform and another’s,

the appropriate response is for the court to announce

its own best interpretation of the statute, putting an

end to the gyrations. Cf. Sackett, 143 S. Ct. at 1332–35

(adopting an interpretation of the phrase “waters of

the United States” against the backdrop of a history of

fluctuating agency interpretations).

This would

require the contesting factions to direct their energies

to Congress. In the meantime, a measure of stability

in the law would have been restored, whether or not

observers regarded the settlement as optimal. The

insight that “in most matters it is more important that

the applicable rule of law be settled than that it be

settled right,” Burnet v. Coronado Oil & Gas Co., 285

U.S. 393, 406 (1932) (Brandeis, J., dissenting), is

relevant here.

B. Bias Toward Agencies Can Be Limited,

at “Step Two,” by Considering Agency

Interpretation Processes.

The Chevron framework has also been criticized for

creating systematic bias in favor of agency views about

the law. If contested terms in the statute must be

resolved in favor of the agency’s interpretation, the

argument runs, this stacks the deck in favor of the

agency. By contrast, if disputes about statutory

meaning must be resolved by an Article III court, the

interpretation is more likely to be decided in a fair and

impartial fashion, favoring neither agency nor those it

seeks to regulate. See Buffington, 143 S. Ct. at 18–19

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

Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev.

1187, 1211–12 (2016).

A preliminary and important point is that, insofar

as the question involves the formulation of policy, a

decision by Congress to delegate responsibility to an

agency reflects a deliberate choice to give this

responsibility to the agency, rather than a reviewing

court. This is not an example of “bias” in favor of

the agency, but rather a judgment by the people’s

representatives to charge the agency with

particularizing the goals set forth in the enabling

legislation.

The charge of bias makes more sense where the

interpretation in question emerges from an

enforcement action brought by an agency. Here, the

agency can be said to be functioning as both prosecutor

and adjudicator, and deferring to its interpretation

creates a nontrivial risk of bias in favor of the agency.

Yet the vast majority of this Court’s Chevron decisions

have involved judicial review of agency regulations,

and commentators have suggested that it would be

appropriate to confine the Chevron framework to such

proceedings. See, e.g., Hickman & Nielson, 70 Duke

L.J., at 964–82, 1000–13. That, of course, is the very

setting in which the Chevron framework got its start.

An important theme in the lower courts in applying

step two of the Chevron doctrine is that

reasonableness should be assessed in terms of the

process followed by the agency. See Kent Barnett &

Christopher J. Walker, Chevron Step Two’s Domain, 93

Notre Dame L. Rev. 1441, 1462–68 (2018). If the

agency has adopted its interpretation in a process that

affords an opportunity for public participation and the

agency has provided a reasoned response to material

criticisms advanced in that process, this should weigh

in favor of determining that its interpretation is

reasonable. This is another valuable clarification that

the Court should provide, in an appropriate case, in

spelling out what is “reasonable” under step two of the

Chevron framework. Such a clarification would help

to limit the potential for bias toward the agency.

III. A Decision Repudiating the Chevron

Framework Would Be Destabilizing.

This Court has frequently reaffirmed the

importance of stare decisis. The reasons for standing

by what has been decided apply not just to previously

decided cases but also to established “doctrines” and

decisional frameworks. For the ultimate rationale for

stare decisis is the promotion of stability and

predictability in the law. Stare decisis is critical to the

Court’s legitimacy. If the Court does not stand by its

precedents and decisional frameworks, it cannot

expect lower courts and other actors to do so either.

There can be no doubt that the Chevron doctrine has

been regarded, at least until recently, as a settled

decisional framework. Chevron is one of the most cited

decisions in American public law, far surpassing

Marbury among others.13 It has been cited in some

244 decisions of this Court. Indeed, the two-step

Chevron framework has been applied by this Court in

more than 100 decisions reviewing an agency

interpretation of law. Given this history, it would be

difficult to explain why the Chevron framework has

been discovered to be egregiously wrong, unworkable,

in conflict with more recent developments in the law,

or impervious to correction by Congress.14

An important factor in this connection is the

differential capacity of this Court and the lower

federal courts to engage in de novo review of all

questions of statutory interpretation arising on

judicial review. This Court decides approximately

seventy cases per Term, of which only a handful

involve the interpretation by an agency of the statute

it administers. This caseload makes it possible for the

Court to resolve questions of interpretation, arising

under highly complex statutes, in what amounts to de

novo interpretation of the statutes. See, e.g., Becerra v.

Christopher J. Walker, Most Cited Supreme Court

Administrative Law Decisions, Yale J. Reg. Notice & Comment

(Oct. 9, 2014), https://www.yalejreg.com/nc/most-cited-supremecourt-administrative-law-decisions-by-chris-walker/.

The question thus is less whether overruling the Chevron

framework would endanger “reliance interests,” Pet. Br. 21–22,

40–42, and more whether the legal community will retain

confidence that legal methods long endorsed by this Court will

not be lightly cast aside.

Empire Health Foundation, 142 S. Ct. 2354 (2022) (not

relying on deference or referring to Chevron

framework, in upholding agency construction of

complex statute); American Hosp. Ass’n v. Becerra, 142

S. Ct. 1896 (2022) (same analytical approach, in

rejecting agency construction of complex statute).

Lower federal courts have caseloads many times

greater than this Court. As several commentators

have pointed out, the lower courts do not have the

decisional capacity to engage in an exhaustive review

of every statutory interpretation question arising on

judicial review. They need some means of cutting to

the heart of the dispute, “out of a sheer instinct for selfpreservation.” Gary Lawson, The Ghosts of Chevron

Present and Future, B.U. School of Law Research

Paper Series No. 23-11, at 86 (Feb. 22, 2023)

(forthcoming

103

B.U.

Rev.

(2023)),

https://ssrn.com/abstract=4367469/; see also Kent

Barnett & Christopher J. Walker, Chevron in the

Circuit Courts, 116 Mich. L. Rev. 1, 71 (2017); Nicholas

R. Bednar & Kristin E. Hickman, Chevron’s

Inevitability, 85 Geo. Wash. L. Rev. 1392, 1398 (2017).

The Chevron framework has served as a method

allowing the lower courts to engage in meaningful

review of agency interpretations without having to

resolve every such issue from scratch.

Presumably, some other deference doctrine, such as

the one associated with Skidmore, could also function

as a device for reducing the burden of judicial review

on the lower courts relative to de novo interpretation.

But the Skidmore doctrine has more moving parts

than the Chevron framework, and it would take

considerable effort by the lower courts, and by this

Court on further review, to develop a uniform

conception of how Skidmore deference should proceed.

See Kristin E. Hickman & Matthew D. Krueger, In

Search of the Modern Skidmore Standard, 107 Colum.

L. Rev. 1235 (2007). It is doubtful that the benefits of

transitioning to a different standard of review would

justify the uncertainty and other costs this would

entail, relative to refining or reaffirming certain

clarifications of the Chevron framework.

****

In assessing the advantages and disadvantages of

any decisional framework, it is important to ask:

compared to what? It is probably impossible to devise

a system of judicial review that satisfies all desired

criteria.

Any framework for assessing agency

interpretations of law will inevitably be subject to a

variety of tradeoffs.

If the alternative to the Chevron framework is de

novo consideration by federal courts of all questions of

law that arise in the course of judicial review, the

result might be a reduction of bias toward agencies.

But any such reduction in bias would be achieved at

the expense of significant costs. One cost would be

reduced uniformity in federal law, as different courts

in different circuits adopted different interpretations

of law that this Court does not have the institutional

capacity to sort out. See Peter Strauss, One Hundred

Fifty Cases Per Year: Some Implications of the Supreme

Court’s Limited Resources for Judicial Review of

Agency Action, 87 Colum. L. Rev. 1093, 1121–22 (1987).

Another cost might be more decisions that are not well

informed about highly technical or specialized areas of

the law. A third cost might be more decisions that do

not cohere well with complicated statutory schemes

that are difficult for generalist judges to easily

comprehend.

A final cost might be, in some contexts, the

replacement of bias in favor of agencies with an

inappropriate elevation of the judiciary’s role. As

Justice Scalia, the foremost proponent of the Chevron

framework, understood, the basic purpose of the

Chevron doctrine is to prevent the transfer of “any

number of interpretive decisions—archetypal Chevron

questions, about how best to construe an ambiguous

term in light of competing policy interests—from the

agencies that administer the statutes to federal

courts.”

Arlington, 569 U.S. at 304.

This

understanding was shared by Justice Stevens when he

authored the Chevron decision. He wrote: “[F]ederal

judges—who have no constituency—have a duty to

respect the legitimate policy choices made by those

who do. The responsibilities for assessing the wisdom

of such policy choices and resolving the struggle

between competing views of the public interest are not

judicial ones: ‘Our Constitution vests such

responsibilities in the political branches.’” 467 U.S. at

866.15

This fundamental insight behind the Chevron

framework for reviewing interpretations by agencies

of the statutes they administer should be preserved.

The suggestion, Pet. Br. 36–38, that requiring federal courts

in administrative-review cases to decide all questions of law

de novo would induce Congress to reach compromises about

disputed issues of policy, is unrealistic. The more likely effect

would be to make judicial confirmation hearings even more

contentious.

CONCLUSION

The Chevron framework warrants appropriate

clarification on several points but should be

reaffirmed.

Respectfully submitted,

JAMES B. SPETA

6254 N. Glenwood Ave.

Chicago, Illinois 60660

(773) 965-1624

JOSEPH D. KEARNEY

Counsel of Record

Post Office Box 2145

Milwaukee, Wisconsin 53201

(414) 313-0504

kearney89@gmail.com

Counsel for Amicus Curiae Professor Thomas W. Merrill

July 21, 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.