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

No. 22-451

In the Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, ET AL.,

PETITIONERS,

v.

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE THIRD PARTY

PAYMENT PROCESSORS ASSOCIATION

SUPPORTING PETITIONERS

KEITH J. BARNETT

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St., N.E.

Suite 3000

Atlanta, GA 30308

KAITLIN L. O’DONNELL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

3000 Two Logan Square,

Eighteenth & Arch Sts.

Philadelphia, PA 19103

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

SEAN T.H. DUTTON

CARSON A. COX

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.,

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the Court should overrule the Chevron

deference doctrine, Chevron U.S.A. Inc. v. NRDC,

Inc., 467 U.S. 837 (1984), or at least clarify that

statutory silence concerning controversial powers

expressly but narrowly granted elsewhere in the

statute does not constitute an ambiguity requiring

deference to the agency.

ii

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ...........................................................4

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

I. Chevron

Deference

Fundamentally

Changes

Agency

Incentives

From

Advancing Congressional Directives To

Advancing The Agency’s Own Policies ............5

II. The Experience Of Numerous States That

Have Rejected Judicial Deference To

Agency Interpretation Of Statutes Shows

That Taking This Approach Advances The

Rule Of Law, Without Any Adverse

Consequences..................................................12

A. At Least Seventeen States Have

Rejected The Practice Of Deferring To

Agency Interpretations Of Law ................12

B. The States That Have Ended This

Practice Have Strengthened The Rule Of

Law Without Disrupting The Essential

Functions Of Their Agencies ....................17

CONCLUSION ..........................................................26

iii

TABLE OF AUTHORITIES

Cases

Aline Bae Tanning, Inc. v. Nebraska Dep’t of Rev.,

880 N.W.2d 61 (Neb. 2016) ................................. 13

Bowers v. Firefighters’ Ret. Sys.,

6 So. 3d 173 (La. 2009) ....................................... 13

Buffington v. McDonough,

143 S. Ct. 14 (2022) (mem.) .............................. 6, 7

Burlington N. R.R. v. Dir. of Rev.,

785 S.W.2d 272 (Mo. 1990) ..................... 13, 14, 21

Camacho v. State ex rel. Dep’t of Workforce Servs.,

Workers Comp. Div.,

448 P.3d 834 (Wyo. 2019) ................................... 13

Camacho v. State ex rel. Dep’t of Workforce Servs.,

Workers’ Comp. Div.,

448 P.3d 834 (Wyo. 2019) ................................... 21

Carter Oil Co., Inc. v. Ariz. Dep’t of Rev.,

460 P.3d 808 (Ariz. Ct. App. 2020) ..................... 24

Chevron U.S.A. Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) .............................. i, 3, 5, 6, 15

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................... 7, 8

Cmty. Fin. Servs. Assoc. of Am., Ltd. v. CFPB,

51 F.4th 616 (5th Cir. 2021) ................................. 3

iv

Douglas v. Ad Astra Info. Sys., LLC,

293 P.3d 723 (Kan. 2013) ................................... 13

Egan v. Del. River Port Auth.,

851 F.3d 263 (3d Cir. 2017) ................................ 10

Ellis-Hall Consultants v. Pub. Serv. Comm’n,

379 P.3d 1270 (Utah 2016) ........................... 18, 20

Gelety v. Ariz. Med. Bd.,

No. 1 CA-CV 20-0387, 2021 WL 734735 (Ariz.

Ct. App. Feb. 25, 2021) ....................................... 24

Gonzales v. Arizona State Bd. of Nursing,

528 P.3d 487 (Ariz. Ct. App. 2023) ..................... 25

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016)......6, 10, 11, 12, 26

Heritage At Carefree LLC v. Ariz. Dep’t of Health

Servs.,

471 P.3d 658 (Ariz. Ct. App. 2020) ..................... 24

Hughes Gen. Contractors, Inc. v. Utah Labor

Comm’n,

322 P.3d 712 (Utah 2014) ................................... 13

In re Complaint of Rovas Against SBC Mich.,

754 N.W.2d 259 (Mich. 2008) ............13, 18, 20, 21

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ............................................... 7

JH2K I LLC v. Ariz. Dep’t of Health Servs.,

438 P.3d 676 (Ariz. Ct. App. 2019) ............... 24, 25

v

King v. Mississippi Mil. Dep’t,

245 So. 3d 404 (Miss. 2018) .................... 13, 18, 20

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)........................................... 9

Maricopa Cnty. v. Viola,

No. 1 CA-SA 21-0023, 2021 WL 2005913 (Ariz.

Ct. App. May 20, 2021) ....................................... 24

Myers v. Yamato Kogyo Co., Ltd.,

597 S.W.3d 613 (Ark. 2020) ...............13, 14, 18, 21

N.C. Acupuncture Licensing Bd. v. N.C. Bd. of

Physical Therapy Exam’rs,

821 S.E.2d 376 (N.C. 2018) ................................ 13

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

Internet Servs.,

545 U.S. 967 (2005) ......................................... 6, 10

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

Occupational Safety & Health Admin.,

142 S. Ct. 661 (2022)........................................... 19

Nielson Co. (US), LLC v. Cnty. Bd. Of Arlington

Cnty.,

767 S.E.2d 1 (Va. 2015) ...................................... 13

Pima Cnty. v. Pima Cnty. Law Enf’t Merit Sys.

Council,

119 P.3d 1027 (Ariz. 2005) ................................. 15

Pub. Water Supply Co. v. DiPasquale,

735 A.2d 378 (Del. 1999) .............................. 13, 21

vi

Roberts v. State,

512 P.3d 1007 (Ariz. 2022) ................................. 16

Ruben v. Ariz. Med. Bd.,

No. 1 CA-CV 18-0079, 2019 WL 471031 (Ariz.

Ct. App. Feb. 7, 2019) ......................................... 24

Saguaro Healing LLC v. State,

470 P.3d 636 (Ariz. 2020) ............................. 24, 25

Sevier Cnty. v. Tenn. State Bd. of Equalization,

2023 WL 3298375 (Tenn. Ct. App. May 8,

2023) .................................................................... 16

Silver v. Pueblo Del Sol Water Co.,

423 P.3d 348 (Ariz. 2018) ............................. 19, 24

Simms v. Ariz. Racing Comm’n,

482 P.3d 1049 (Ariz. Ct. App. 2021) ................... 24

T.P. Racing, L.L.L.P. v. Arizona Dep’t of Gaming,

No. 1 CA-CV 22-0224, 2022 WL 17684565

(Ariz. Ct. App. Dec. 15, 2022) ............................. 25

Tenn. Hosp. Ass’n v. Azar,

908 F.3d 1029 (6th Cir. 2018)............................... 8

Tetra Tech EC, Inc. v. Wisconsin Dep’t of Rev.,

914 N.W.2d 21 (Wis. 2018) ...............13, 14, 15, 17,

18, 20, 26

TWISM Enters., LLC v. State Bd. of Registration

for Pro. Engineers and Surveyors,

___N.E.3d___, 2022 WL 17981386

(Ohio Dec. 29, 2022) ...........................13, 18, 19, 21

vii

Verizon Fla. Inc. v. Jacobs,

810 So.2d 906 (Fla. 2002) ................................... 16

Waltz Healing Ctr., Inc v. Ariz. Dep’t of Health

Servs.,

433 P.3d 14 (Ariz. Ct. App. 2018) ................. 24, 25

Constitutional Provisions

Fla. Const. art. V, § 21 ................................. 13, 16, 17

U.S. Const. art. I, § 1................................................ 11

U.S. Const. art. IV, § 4 ............................................. 17

U.S. Const., art. II, § 3 ............................................. 11

Statutes And Rules

12 U.S.C. § 5531 ................................................... 3, 10

Ariz. Rev. Stat. § 12-910 (2018) ................... 13, 15, 16

Tenn. Code § 4-5-326 (2022) .............................. 13, 16

Wis. Stat. § 227.10 (2018) ........................................ 15

Regulations

82 Fed. Reg. 54,472 (Nov. 17, 2017) .......................... 3

viii

Other Authorities

Alison Somin, et al., The Effects Of Judicial

Deference On The Size And Scope Of The

Regulatory State: Michigan v. Ohio, A

Comparison, Working Paper, State Judicial

Deference Research Roundtable (October

2021) .............................................................. 22, 23

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118 (2016)

(book review) ................................................... 9, 11

Daniel Ortner, The End of Deference: How States

(and Territories and Tribes) Are Leading a

(Sometimes Quiet) Revolution Against

Administrative Deference Doctrines (The C.

Boyden Gray Center for the Study of the

Administrative State, CSAS Working Paper

21-23) ................................................................... 12

David S. Tatel, The Administrative Process and

the Rule of Environmental Law, 34 Harv.

Env’t L. Rev. 1 (2010) ..................................... 9, 11

Elizabeth V. Foote, Statutory Interpretation or

Public Administration: How Chevron

Misconceives the Function of Agencies and

Why It Matters, 59 Admin. L. Rev. 673 (2007) 8, 9

Ernest Gellhorn & Paul Verkuil, Controlling

Chevron-based Delegations,

20 Cardozo L. Rev. 989 (1999) .............................. 9

Fla. Amendment 6, BallotPedia .............................. 17

ix

Frank Keating, Operation Choke Point Reveals

True Injustices Of Obama’s Justice

Department, The Hill (Nov. 7, 2018) .................. 11

Ilya Somin, The Volokh Conspiracy, Chevron

Matters—But Not as Much as You Might

Think, Reason.com (May 1, 2023) ...................... 21

Jack M. Beerman, End the Failed Chevron

Experiment Now: How Chevron Has Failed

and Why It Can and Should Be Overruled,

42 Conn. L. Rev. 779 (2010) ........................... 8, 20

James Broughel & Patrick McLaughlin,

Quantifying Regulation In US States With

State Regdata 2.0, Mercatus Ctr.

(Aug. 31, 2020) .................................................... 23

Jeffrey S. Sutton & John L. Rockenbach, Respect

and Deference in American Administrative

Law, 102 B.U. L. Rev. 1937 (2022)..................... 13

Jonatahan Riches, Deference Doctrines And A

State Legislative Solution, Working Paper,

State Judicial Deference Research Roundtable

(October 2021) ..................................................... 24

Leslie Corbly & Michael R. Davis, Rejecting

Judicial Deference: Restoring The Judicial

And Legislative Departments To Their Proper

Role, Working Paper: State Judicial

Deference Research Roundtable

(October 2021) ..................................................... 22

x

Luke Phillips, Chevron in the States? Not So

Much, 89 Miss. L.J. 313 (2020)........................... 12

Philip Hamburger, Chevron Bias, 84 Geo. Wash.

L. Rev. 1187 (2016) ............................................. 10

Thomas W. Merrill, The Story of Chevron: The

Making of an Accidental Landmark, 66

Admin. L. Rev. 253 (2014) .................................... 6

INTEREST OF AMICUS CURIAE1

Amicus Curiae the Third Party Payment

Processors Association (“TPPPA”) is a national, notfor-profit association of payment processors and their

banks. Amicus TPPPA’s mission is to help its

members operate efficiently and comply with

applicable regulations by developing best practices for

third-party payment processing.

Amicus TPPPA was formed in 2013, largely to

facilitate dialogue between Amicus TPPPA’s

members and regulatory agencies, including the

Consumer Financial Protection Bureau (“CFPB”).

Amicus TPPPA has successfully worked with the

CFPB and other federal agencies to develop the

TPPPA Compliance Management System (“CMS”), a

best-practices control framework for payment

processors and their banks. The CMS was designed

upon the foundation of the CFPB’s and the

Department of Justice’s guidance on Compliance

Management Systems, further incorporating ThirdParty Risk Management guidance from Federal

Banking Regulators, “Culture of Compliance”

guidance, and other Financial Crimes Enforcement

Network guidance. The end result is a risk-based,

documented, compliance-management system that

Under Rule 37.6, Amicus affirms that no counsel for a

party authored this brief in whole or in part, and that no party,

counsel for a party, or any person other than Amicus, its

members, or its counsel made a monetary contribution intended

to fund the preparation or submission of this amicus brief.

1

2

addresses Third-Party Risk Management, Consumer

Protection,

and

Bank

Secrecy/Anti-Money

Laundering principles.

The CMS aids Amicus

TPPPA’s members with regulatory compliance for all

payment methods with these risk-based, documented

compliance management system controls that are

tailored to the members’ distinct payment-processing

programs and their related requirements and

responsibilities. In the aggregate, Amicus TPPPA’s

members process over several billions of dollars in

payments each year.

Amicus TPPPA regularly

engages in the administrative-rule-making process by

responding to Requests for Comments on matters

that impact its members. Finally, Amicus TPPPA

routinely files amicus briefs in cases of importance to

its members, including this one. See, e.g., Br. of

TPPPA as Amicus Curiae Supporting CrossPetitioners, CFPB v. Cmty. Fin. Servs. Ass’n of Am.,

143 S. Ct. 978 (Feb. 27, 2023) (mem.) (No.22-448)

(“CFPB v. CFSAA”); En Banc Br. of TPPPA as Amicus

Curiae in Support of Appellee, Hunstein v. Preferred

Collection & Mgmt. Servs., Inc., 17 F.4th 1016 (11th

Cir. 2021) (No. 19-14434); Br. of Amicus Curiae by

TPPPA in Support of Defendants’ Motion to Dismiss,

CFPB v. Intercept Corp., No. 3:16-cv-144, 2017 WL

3774379 (D.N.D. Mar. 17, 2017).

Amicus TPPPA has experienced the harms

associated with agencies relying upon the deference

doctrine created by Chevron U.S.A. Inc. v. Natural

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

For instance, Chevron deference encouraged the

3

CFPB to promulgate its Payday Lending Rule, 82

Fed. Reg. 54,472 (Nov. 17, 2017) (codified at 12 C.F.R.

pt. 1041), which is currently the subject of a challenge

before this Court, CFPB v. CFSAA, No.22-448 (U.S.).

Under that rule, a payment processor may not

attempt more than two withdrawals on a consumer’s

account in connection with certain types of consumer

debts when those prior attempts failed for insufficient

funds, although the consumer had previously

authorized such withdrawals consistent with existing

regulations. 82 Fed. Reg. at 54,472; see Br. of Amicus

Curiae TPPPA Supporting Respondents, CFPB v.

CFSAA, at 7–14, No.22-448 (U.S. July 10, 2023)

(“TPPPA Amicus Br.”). The CFPB promulgated this

rule ostensibly under its statutory authority to

prohibit “unfair” or “abusive” acts or practices, 12

U.S.C. § 5531; see 82 Fed. Reg. at 54,872, and the

Fifth Circuit determined that the statutory terms

“unfair” and “abusive” reasonably cover withdrawal

attempts that a consumer has expressly authorized,

without assessing whether the CFPB had offered the

best reading of its enabling statute, Cmty. Fin. Servs.

Assoc. of Am., Ltd. v. CFPB, 51 F.4th 616, 627–28 (5th

Cir. 2021). As Amicus TPPPA detailed in its amicus

brief in CFPB v. CFSAA, No.22-448 (U.S.), this rule,

which is untethered from the statutory text, imposes

significant costs on payment processors and

consumers more broadly that Congress never

intended. TPPPA Amicus Br.7–16.

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

Chevron has fundamentally transformed how

federal agencies approach their duties, in a manner

that a bare quorum of this Court never imagined

when it decided this then-routine administrative-law

case. Given agencies’ knowledge that, even if their

targets can gather the significant resources necessary

to challenge the agencies’ regulations in court, the

courts will award the agencies with a powerful thumb

on the adjudicative scales, many agencies no longer

focus their efforts on enforcing Congress’ will. Rather,

they now often first set their own policy agenda and

then search for ambiguities in the statutes at issue,

which these agencies then exploit to achieve their own

predetermined bureaucratic goals. So, while this

Court conceptualized Chevron’s deference doctrine as

respecting Congress’ supposed “implicit” delegations

to agencies, the doctrine has, instead, created the

opposite result, emboldening Executive Branch

lawmaking without regard to Congress’ objectives.

There is a better way. Numerous States have

rejected deference to agencies’ interpretations of state

legislative enactments, with no adverse results.

These States’ experience shows that courts may

decline to defer to agencies’ interpretations of statutes

without undermining the important role that

agencies can play in modern governance. And, in the

process of ending these deference regimes, these

5

States have strengthened the rule of law and fostered

democratic accountability within their borders.

This Court should overturn Chevron and end the

pernicious, harmful practice of judicial deference to

agency interpretations of statutory text.

ARGUMENT

I.

Chevron Deference Fundamentally Changes

Agency

Incentives

From

Advancing

Congressional Directives To Advancing The

Agency’s Own Policies

Although this Court decided Chevron without

much fanfare, the doctrine for which that decision

now stands has since become the fundamental

fulcrum in administrative law. Chevron deference

has incentivized agencies not to execute congressional

directives embodied in the statutory text, but rather

to follow the agency’s own policy preferences, to the

detriment of the rule of law.

Under what has become known as Chevron’s twostep framework, a federal court must defer to an

agency’s reasonable interpretation of a statute that it

implements, where that statute is ambiguous.

Chevron, 467 U.S. at 843. So, at the first step, a court

must determine whether the statute is ambiguous,

asking whether “Congress has directly spoken to the

precise question at issue” in the relevant statute. Id.

at 843 & n.9. If the court concludes that the statute

6

is “silent or ambiguous,” then it proceeds to step two

and asks whether the agency’s proffered

interpretation is a “permissible construction.” Id.

at 843. The court must give “deference to [the]

administrative interpretation[ ]” at this step, id.

at 844, even if the court does not believe that the

agency’s interpretation is the best reading of the

statutory text, see Nat’l Cable & Telecomm. Ass’n v.

Brand X Internet Servs., 545 U.S. 967, 983 (2005); see

also Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152

(10th Cir. 2016) (Gorsuch, J., concurring). This Court

justified this approach as respecting Congress’

supposed “implicit” delegations of legislative

authority, preventing courts from “substitut[ing

their] own construction of a statute for a reasonable

interpretation made by . . . the agency.” Chevron, 467

U.S. at 844.

When this Court decided Chevron in 1984,

however, no one appears to have understood the case

as creating a broadly encompassing deferential

review framework. Chevron was “considered routine

by those who made it” and was “little noticed when it

was decided.” Thomas W. Merrill, The Story of

Chevron: The Making of an Accidental Landmark, 66

Admin. L. Rev. 253, 257 (2014); see also Buffington v.

McDonough, 143 S. Ct. 14, 18 (2022) (mem.) (Gorsuch,

J., dissenting from the denial of certiorari). When

Chevron was briefed and argued, “no one thought

Chevron presented any question about the courtagency relationship in resolving questions of

interpretation.” Merrill, supra, at 257. So, “[i]f

7

Chevron amounted to a revolution, it seems almost

everyone missed it. The decision . . . sparked not a

single word in concurrence or dissent,” and “[b]y many

estimations, Chevron seemed ‘destined to obscurity.’”

Buffington, 143 S. Ct. at 18 (Gorsuch, J., dissenting

from the denial of certiorari) (citation omitted). And

just a few years after this Court decided Chevron, this

Court explained that deference to an agency was

inappropriate when the issue was a “pure question of

statutory construction for the courts to decide,” INS

v. Cardoza-Fonseca, 480 U.S. 421, 446–48 (1987),

which is contrary to how Chevron subsequently

metastasized, see, e.g., City of Arlington v. FCC, 569

U.S. 290, 296 (2013) (under Chevron, “[s]tatutory

ambiguities will be resolved, within the bounds of

reasonable interpretation, not by the courts but by the

administering agency”); accord Buffington, 143 S. Ct.

at 18 (Gorsuch, J., dissenting from the denial of

certiorari) (“In truth, it took years for Chevron to

morph into something truly revolutionary.”).

Over the past four decades, agencies have seized

on what has become Chevron’s deferential regime to

undermine the basic tenet of administrative law: that

federal agencies execute the law enacted by Congress,

rather than the policy preferences of unelected

bureaucrats. The requirement that federal courts

accept any “permissible” interpretation of a

congressional enactment provides agencies with a

“strong incentive” to “make statutory language seem

more complicated than it actually is,” to achieve their

own policy goals. Tenn. Hosp. Ass’n v. Azar, 908 F.3d

8

1029, 1050 (6th Cir. 2018) (Kethledge, J., concurring);

see Jack M. Beerman, End the Failed Chevron

Experiment Now: How Chevron Has Failed and Why

It Can and Should Be Overruled, 42 Conn. L. Rev.

779, 837 (2010). Precisely because Chevron requires

courts to defer to an agency’s construction of an

ambiguous or silent statute, “Chevron deference may

inspire

agencies

to

adopt

adventurous

interpretations” to pursue their own ends, “far from

any good faith reading of Congress’s intent.”

Beerman, supra, at 837; see also Elizabeth V. Foote,

Statutory Interpretation or Public Administration:

How Chevron Misconceives the Function of Agencies

and Why It Matters, 59 Admin. L. Rev. 673, 715 (2007)

(Chevron gives agencies “every incentive to argue that

their organic statutes are vague or ambiguous”). So

long as the agency’s motivated reasoning could result

in a court concluding that the statute is ambiguous,

the agency may “push [its] own policy views against a

discernible, but not absolutely clear, congressional

intent.” Beerman, supra, at 784. After all, the agency

will know (or hope) that courts may “brush off serious

challenges to agency decisions by invoking Chevron

without asking whether the agency is thwarting”

Congress’ “imperfectly expressed” intent. Id.

Chevron’s any “permissible construction of the

statute,” City of Arlington, 569 U.S. at 307, deference

scheme has, accordingly, transformed the way that

many federal agencies approach their jobs. The

Chevron doctrine allows agencies to prioritize their

“own interests, their own constituencies, and their

9

own policy goals,” Kisor v. Wilkie, 139 S. Ct. 2400,

2439 (2019) (Gorsuch, J., concurring), over those of

Congress because, under Chevron, agencies may

effectively “choose their policy first and then later

seek to defend its legality” by discovering ambiguities

in the statutes that they administer, David S. Tatel,

The Administrative Process and the Rule of

Environmental Law, 34 Harv. Env’t L. Rev. 1, 2

(2010). In this way, Chevron has ushered in the

modern approach to regulation: rather than seeking

to enforce congressional directives, agencies now

“often think they can take a particular action unless

it is clearly forbidden.” Brett M. Kavanaugh, Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118, 2151

(2016) (book review); see Foote, supra, at 715.

With Chevron to rely upon, federal agencies have

internalized an “extremely aggressive executive

branch philosophy of pushing the legal envelope.”

Kavanaugh, supra, at 2152. Under the “safe harbor”

of Chevron step two, agencies have “increasingly

ignored the boundaries of their delegated authority,”

asserting “broad claims of jurisdiction into areas long

thought to be outside their jurisdiction.” Ernest

Gellhorn & Paul Verkuil, Controlling Chevron-based

Delegations, 20 Cardozo L. Rev. 989, 996 (1999).

Often, and with increasing frequency, these agencies

have stretched “ambiguous” statutory terms far past

their ordinary and accepted meaning.

The CFPB’s Payday Lending Rule, noted above,

supra pp.2–3, is a recent and particularly egregious

10

example. In defending the Payday Lending Rule

before the Fifth Circuit, the CFPB succeeded in

arguing that the statutory terms “unfair” and

“abusive” acts or practices, 12 U.S.C. § 5531,

“reasonably” encompass a payment processor’s

account withdrawal attempts that a consumer has

expressly authorized, see Br. of Appellees at 13–14,

Cmty. Fin. Servs. Assoc. of Am., Ltd. v. CFPB, 51

F.4th 616 (5th Cir. 2021) (No. 21-50826), 2021 WL

6135329. Relying on Chevron, the CFPB seized upon

undefined, vague statutory terms to advance its own

agenda against certain lending and paymentprocessing practices, see TPPPA Amicus Br.8–14,

without needing to show that its actions complied

with the best reading of its enabling statute, see

Brand X, 545 U.S. at 983; see also Gutierrez-Brizuela,

834 F.3d at 1152 (Gorsuch, J., concurring). Worse

still, the CFPB knew when drafting the Payday

Lending Rule that, if regulated industry challenged

the agency over the rule in court—despite Chevron

stacking the deck against such challengers—this is

how the course of judicial review may well play out.

The courts would unfairly “precommit[ ]” to the

agency’s “judgments about the law,” contrary to basic

notions of due process. Philip Hamburger, Chevron

Bias, 84 Geo. Wash. L. Rev. 1187, 1212 (2016); see also

Egan v. Del. River Port Auth., 851 F.3d 263, 281 (3d

Cir. 2017) (Jordan, J., concurring). And because of the

cover that Chevron provided, the CFPB was able to

11

choose the Operation-Chokepoint-like2 regulatory

approach in the Payday Lending Rule—an approach

where the CFPB tried to put payday lenders out of

business by making it prohibitively expensive for

banks and payment processors to continue to work

with them. See TPPPA Amicus Br.8, 12–14.

This post-Chevron executive “aggressiveness”

undermines the separation of powers, see Kavanaugh,

supra, at 2152, “effectively sever[ing] the tie between

federal law and administrative policy” and

encouraging federal agencies to usurp Congress’ role,

Tatel, supra, at 2. Whereas Article I vests “[a]ll

legislative Powers herein granted” in Congress, U.S.

Const. art. I, § 1, while Article II vests the President

with the duty to “take Care that the Laws be

faithfully executed,” id., art. II, § 3, under Chevron, it

is agencies—not Congress—that “prescribe new rules

of general applicability,” premised on the agencies’

“own preferences about optimal public policy,”

Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J.,

concurring). Thus, Chevron’s deference doctrine

allows “executive bureaucracies to swallow huge

See generally Frank Keating, Operation Choke Point

Reveals True Injustices Of Obama’s Justice Department, The Hill

(Nov. 7, 2018), https://thehill.com/blogs/congress-blog/politics/

415478-operation-choke-point-reveals-true-injustices-of-obamas

-justice/ (all websites last visited July 23, 2023) (describing

program where federal officials would “pressure[ ] banks to close

the accounts of businesses solely because they were ideologically

opposed to their existence”).

2

12

amounts of core . . . legislative power,” contrary to the

Constitution’s basic division of labor between

Congress and the Executive. Id.

II.

The Experience Of Numerous States That

Have Rejected Judicial Deference To

Agency Interpretation Of Statutes Shows

That Taking This Approach Advances The

Rule Of Law, Without Any Adverse

Consequences

A. At Least Seventeen States Have Rejected

The Practice Of Deferring To Agency

Interpretations Of Law

In recent decades, at least 17 States have rejected

Chevron-style deference through constitutional

amendment, state statute, or state-court decisions,

restoring their state courts’ authority to interpret

state statutes administered by executive agencies

independently.3 The 17 States that have rejected

Chevron or ended their Chevron-like experiments are

Arizona, Arkansas, Delaware, Florida, Kansas,

3 See generally Luke Phillips, Chevron in the States? Not So

Much, 89 Miss. L.J. 313 (2020); Daniel Ortner, The End of

Deference: How States (and Territories and Tribes) Are Leading

a (Sometimes Quiet) Revolution Against Administrative

Deference Doctrines (The C. Boyden Gray Center for the Study of

the Administrative State, CSAS Working Paper 21-23),

available at https://administrativestate.gmu.edu/wp-content/

uploads/2021/04/Ortner-the-End-of-Deference.pdf.

13

Louisiana,

Michigan,

Mississippi,

Missouri,

Nebraska, North Carolina, Ohio, Tennessee, Utah,

Virginia, Wisconsin, and Wyoming. See, e.g., Jeffrey

S. Sutton & John L. Rockenbach, Respect and

Deference in American Administrative Law, 102 B.U.

L. Rev. 1937, 1943 (2022).4 These States represent

the growing trend of “states eliminat[ing] deference to

state agencies over the meaning of state law by

statute,” as well as by “constitutional initiative” and

state-court decision. See id. at 1942–43.

4 See Ariz. Rev. Stat. § 12-910(F) (2018); Myers v. Yamato

Kogyo Co., Ltd., 597 S.W.3d 613, 617 (Ark. 2020); Pub. Water

Supply Co. v. DiPasquale, 735 A.2d 378, 382 (Del. 1999); Fla.

Const. art. V, § 21; Douglas v. Ad Astra Info. Sys., LLC, 293 P.3d

723, 728 (Kan. 2013); Bowers v. Firefighters’ Ret. Sys., 6 So. 3d

173, 176 (La. 2009); In re Complaint of Rovas Against SBC

Mich., 754 N.W.2d 259, 271–72 (Mich. 2008); King v. Mississippi

Mil. Dep’t, 245 So. 3d 404, 408 (Miss. 2018); Burlington N. R.R.

v. Dir. of Rev., 785 S.W.2d 272, 273 (Mo. 1990); Aline Bae

Tanning, Inc. v. Nebraska Dep’t of Rev., 880 N.W.2d 61, 65 (Neb.

2016); N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical

Therapy Exam’rs, 821 S.E.2d 376, 379 (N.C. 2018); TWISM

Enters., LLC v. State Bd. of Registration for Pro. Engineers and

Surveyors, ___N.E.3d___, 2022 WL 17981386, at *7 (Ohio Dec.

29, 2022); Tenn. Code § 4-5-326 (2022); Hughes Gen. Contractors,

Inc. v. Utah Labor Comm’n, 322 P.3d 712, 717 (Utah 2014);

Nielson Co. (US), LLC v. Cnty. Bd. Of Arlington Cnty., 767

S.E.2d 1, 5–6 (Va. 2015); Tetra Tech EC, Inc. v. Wisconsin Dep’t

of Rev., 914 N.W.2d 21 (Wis. 2018); Camacho v. State ex rel. Dep’t

of Workforce Servs., Workers Comp. Div., 448 P.3d 834, 840–41

(Wyo. 2019).

14

Fourteen of these States have rejected Chevronlike deference by judicial decision, with their state

courts returning judicial review of an agency’s legal

determinations to the de novo standard. In many of

those States, courts had previously adopted some

form of deference in cases involving agency

interpretations of law, see, e.g., Tetra Tech, 914

N.W.2d at 31 (lead op. of Kelly, J.), before returning

to de novo review of such questions of law, id. at 54;

see also Myers, 597 S.W.3d at 617 (same); Burlington,

785 S.W.2d at 273 (“unrestricted, independent

judgment” for courts).

Wisconsin’s judicial decision ending that State’s

deference regime is a notable example of this

approach. Tetra Tech, 914 N.W.2d 21. Prior to the

Wisconsin Supreme Court’s decision in Tetra Tech,

state courts in Wisconsin relied upon a three-tiered

deference framework when reviewing an agency’s

interpretation of law. See id. at 31 (lead op. of Kelly,

J.) (naming the deference levels as “great weight

deference,” “due weight deference,” and “no deference

at all”). This deference regime “allowed the executive

branch of government to authoritatively decide

questions of law in specific cases brought to [the]

courts for resolution.” Id. at 40. Rejecting deference

to agency interpretations of law, the Wisconsin

Supreme Court announced that Wisconsin courts will

henceforth “review an administrative agency’s

conclusions of law” under a “de novo” standard. Id.

at 54. The court’s lead opinion explained the rejection

of the prior deference regime on multiple, powerful

15

grounds: “[i]t does not respect the separation of

powers, gives insufficient consideration to the parties’

due process interest in a neutral and independent

judiciary, and risks perpetuating erroneous

declarations of the law.” Id. (citations omitted).

Further, the court’s lead opinion noted that the court

“created [the] deference doctrine ex nihilo,” and so had

the power to end it as well. Id. at 55. The Wisconsin

Legislature subsequently codified Tetra Tech’s nodeference rule via statute, providing that “[n]o agency

may seek deference in any proceeding based on the

agency’s interpretation of any law.” Wis. Stat.

§ 227.10(2g) (2018).

Arizona and Tennessee have banned such

deference to agency interpretations by statute. In

2018, Arizona legislatively ended judicial deference to

agency determinations of law, now mandating that

Arizona courts “shall decide all questions of law,

including the interpretations of a constitutional or

statutory provision or rule adopted by an agency,

without deference to any previous determination that

may have been made on the question by the agency,”

and likewise “shall decide all questions of fact without

deference to any previous determination that may

have been made on the question by the agency.” Ariz.

Rev. Stat. § 12-910(F). That ended the Arizona

courts’ prior practice of “defer[ring] to an agency’s

reasonable interpretations of its own regulations”

under Chevron, see Pima Cnty. v. Pima Cnty. Law

Enf’t Merit Sys. Council, 119 P.3d 1027, 1031 (Ariz.

2005) (citing Chevron, 467 U.S. at 844), with the

16

Arizona Supreme Court now “interpret[ing]

applicable statutes without deference to any previous

[agency] determination,” Roberts v. State, 512 P.3d

1007, 1018 (Ariz. 2022) (citing Ariz. Rev. Stat. § 12910(F)). Tennessee followed suit, abolishing judicial

deference to state agencies’ interpretations of law via

statute in 2022. See Tenn. Code § 4-5-326. Tennessee

law now provides that courts “shall not defer to a state

agency’s interpretation of the statute or rule and shall

interpret the statute or rule de novo.” Id. The law

further instructs courts to first apply “all customary

tools of interpretation” and then “resolve any

remaining ambiguity against increased agency

authority.” Id. (emphasis added). The Tennessee

Court of Appeals has noted that, after this statutory

change, the “standard of review is de novo with no

presumption of correctness of the administrative

agency’s statutory interpretation.” Sevier Cnty. v.

Tenn. State Bd. of Equalization, 2023 WL 3298375,

at *3 (Tenn. Ct. App. May 8, 2023) (citation omitted).

Florida, for its part, banned judicial deference to

agency interpretations of law in 2018 by

constitutional amendment. Fla. Const. art. V, § 21.

Prior to 2018, Florida courts “defer[red]” to agency

interpretations of law unless those interpretations

were “clearly erroneous.” Verizon Fla. Inc. v. Jacobs,

810 So.2d 906, 908 (Fla. 2002). After decades of this

Chevron-like regime, the people of Florida responded,

amending their state constitution to require that,

“[i]n interpreting a state statute or rule, a state

court . . . may not defer to an administrative agency’s

17

interpretation of such statute or rule, and must

instead interpret such statute or rule de novo.” Fla.

Const. art. V, § 21. This constitutional amendment

received broad popular support, capturing nearly 62%

of the vote. Fla. Amendment 6, BallotPedia.5

B. The States That Have Ended This

Practice Have Strengthened The Rule Of

Law Without Disrupting The Essential

Functions Of Their Agencies

1. The States that have ended their Chevron-like

practice of deferring to agency interpretations of law

bolstered the rule of law that is the foundation of our

Nation’s republican forms of government. U.S. Const.

art. IV, § 4.

Multiple States have recognized that in ending

their Chevron-like regimes, they have restored the

proper balance between the judicial and executive

branches—to the benefit of the rule of law. The

Wisconsin Supreme Court explained that eliminating

deference promotes the rule of law by preventing the

“executive branch [from] authoritatively decid[ing]

questions of law.” Tetra Tech, 914 N.W.2d at 40 (lead

op. of Kelly, J.). As the Tetra Tech lead opinion

explained, “patrolling the borders between the

Available at https://ballotpedia.org/Florida_Amendment

_6,_Marsy%27s_Law_Crime_Victims_Rights,_Judicial_Retirem

ent_Age,_and_Judicial_Interpretation_of_Laws_and_Rules_Am

endment_(2018).

5

18

branches” is not just a matter of “efficient and

effective government”: the separation of powers

“provides structural protection against depredations

on our liberties.” Id. at 41; accord Myers, 597 S.W.3d

at 617 (“By giving deference to agencies’

interpretations of statutes, the court effectively

transfers the job of interpreting the law from the

judiciary to the executive. This we cannot do.”). Or,

as the Ohio Supreme Court articulated, deference

“turns over to one party the conclusive authority to

say what the law means,” “flying in the face” of the

core separation-of-powers principle that “no man

ought to be a judge in his own case.” TWISM,

___N.E.3d___, 2022 WL 17981386, at *6 (citation

omitted).

And similar concerns animated the

Mississippi high court’s decision to “abandon the old

standard of review giving deference to agency

interpretations of statutes.” See King, 245 So. 3d at

408; accord Ellis-Hall Consultants v. Pub. Serv.

Comm’n, 379 P.3d 1270, 1275 (Utah 2016) (“[I]t

makes little sense for us to defer to the agency's

interpretation of law of its own making. If we did so

we would place the power to write the law and the

power to authoritatively interpret it in the same

hands.”). By rejecting Chevron-like deference, these

States have strengthened the rule of law by

preserving “what it means to be a court” in a tripartite

system of government. Tetra Tech, 914 N.W.2d at 43

(lead op. of Kelly, J.); see Rovas, 754 N.W.2d at 272

(“[T]he unyielding deference to agency statutory

construction required by Chevron conflicts with this

state’s administrative law jurisprudence and with the

19

separation of powers . . . by compelling delegation of

the judiciary’s constitutional authority to construe

statutes to another branch of government.”).

States that have abandoned Chevron-like

deference regimes have also helped restore

democratic accountability. As the state courts have

noted, legislatures remain free (and are now perhaps

encouraged) to write more precise, less ambiguous

laws. See TWISM, ___N.E.3d___, 2022 WL 17981386,

at *7 (noting that “one might think it more likely that

an ambiguous law is the result of poorly considered or

hasty legislative action rather than a deliberate policy

choice to surrender power to an agency”).

Legislatures may also ratify an agency’s prior

interpretation of a statute. See Silver v. Pueblo Del

Sol Water Co., 423 P.3d 348, 356 (Ariz. 2018) (“The

amendment prohibits courts from deferring to

agencies’ interpretations of law. The amendment

does not, however prevent the legislature from

adopting an agency’s interpretation of a term of art.”).

That is how it should be: legislatures are accountable

to the people and should be the ones that write the

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

Occupational Safety & Health Admin., 142 S. Ct. 661,

669 (2022) (Gorsuch, J., concurring) (“If Congress

could hand off all its legislative powers to unelected

agency officials, it would dash the whole scheme of our

Constitution and enable intrusions into the private

lives and freedoms of Americans by bare edict rather

than only with the consent of their elected

representatives.” (citation omitted)).

20

Several States that have eliminated Chevron-like

deference have also noted the rule-of-law benefits

associated with more consistent standards for

reviewing agency action. As the Michigan Supreme

Court explained, the “vagaries of Chevron

jurisprudence do not provide a clear road map for

courts in this state to apply when reviewing

administrative decisions.”

Rovas, 754 N.W.2d

at 271–72; see also Beerman, supra, at 783

(“Currently, the application of the Chevron doctrine is

highly unpredictable, and the decision itself is cited

for opposing propositions.”). In doing away with these

“difficult to apply” deference doctrines, Rovas, 754

N.W.2d at 271, these States have adopted review

regimes better suited to producing consistent results

in the administrative-law context, thereby promoting

legal stability, see King, 245 So.3d at 408

(“abandon[ing] the old standard of giving deference to

agency interpretations of statutes” as “vague and

contradictory”); Ellis-Hall Consultants, 379 P.3d

at 1273 (noting that, prior to abandoning its deference

doctrine, Utah’s “caselaw was riddled with tension on

the question of the standard of review that applies to

judicial review of agency action”); Tetra Tech, 914

N.W.2d at 54 (lead op. of Kelly, J.) (“We are leaving

our deference doctrine behind because it is unsound

in principle . . . and risks perpetuating erroneous

declarations of the law.” (citation omitted)).

2. In eliminating the practice of deferring to

agency interpretations on questions of law, these

States have helped advance the essential functions of

21

their agencies: enforcing the will of the state

legislature that gave the agencies their authority.

The States that have rejected Chevron-like

deference still have robust administrative states,

which now must finally promulgate regulatory

regimes within their statutory mandates. While some

States abolished Chevron-like deference relatively

recently, see, e.g., TWISM, __ N.E.3d ___, 2022 WL

17981386, at *7; Myers, 597 S.W.3d at 617; Camacho

v. State ex rel. Dep’t of Workforce Servs., Workers’

Comp. Div., 448 P.3d 834, 840–41 (Wyo. 2019), others

have been functioning without a mandatory deference

regime for longer, see, e.g., Burlington, 785 S.W.2d

at 273; Pub. Water Supply Co., 735 A.2d at 382;

Rovas, 754 N.W.2d at 271–72, with no evidence of the

weakening of their administrative regimes or of any

popular effort in these States to enact legislation

requiring courts to apply a Chevron-like standard of

review, see Ilya Somin, The Volokh Conspiracy,

Chevron Matters—But Not as Much as You Might

Think, Reason.com (May 1, 2023).6 Indeed, today,

those States without an agency-deference regime

continue to regularly “create[ ] rulemaking authority”

of various breadths for their administrative agencies

“to pursue the legislature’s policy” via regulation.

Leslie Corbly & Michael R. Davis, Rejecting Judicial

Deference: Restoring The Judicial And Legislative

6 Available at https://reason.com/volokh/2023/05/01/chevron

-matters-but-not-as-much-as-you-might-think/.

22

Departments To Their Proper Role 12–19, Working

Paper:

State Judicial Deference Research

Roundtable (October 2021) (surveying legislative

enactments of new rulemaking authority for agencies

from no-agency-deference States in 2020).7

A comparison study between Michigan and Ohio

suggests that the elimination of agency deference

does not dictate “the size and scope” of regulatory

agencies that the state legislature may create. Alison

Somin, et al., The Effects Of Judicial Deference On

The Size And Scope Of The Regulatory State:

Michigan v. Ohio, A Comparison 1, 7–9, Working

Paper, State Judicial Deference Research Roundtable

(October 2021) (explaining that Michigan and Ohio

are “culturally, economically and demographically

similar Midwestern states”).8 Comparing the status

of occupational licensing boards in Ohio (before it had

ended its agency-deference regime) and in Michigan

(after it had ended its agency-deference regime), the

study concluded that “judicial deference does not

appear to have a discernable impact on the balance of

regulatory changes in occupational regulatory

agencies.” Id. at 7–8. Specifically, the study found no

significant difference between Michigan and Ohio in

Available at https://pacificlegal.org/wp-content/uploads/

2022/01/Rejecting-Judicial-Deference-Restoring-the-Judicialand-Legislative-Departments-to-Their-Proper-Role.pdf.

7

8 Available at https://pacificlegal.org/wp-content/uploads/

2022/10/StateJudDefPaperforPostingtoWebsite.pdf.

23

“employment

numbers,

revenue,

expenses,

administrative code changes, and enforcement

actions”

of

their

occupational-licensing

administrative agencies. Id. at 6. That finding

suggests that, regardless of the State’s agencydeference regime, the legislature may select the “size

and scope of regulatory agencies” according to the

policies it considers best, so long as it does so with

sufficiently clear statutory text. See id. at 9; accord

James Broughel & Patrick McLaughlin, Quantifying

Regulation In US States With State Regdata 2.0,

Mercatus Ctr. (Aug. 31, 2020) (showing that, in 2020,

two years after Wisconsin abandoned judicial

deference, it remained one of the most heavily

regulated States in the United States).9

The experience of Arizona, which, as explained

above, ended its deference regime via statute in 2018,

see supra pp.15–16, provides a helpful case study of

the continued role of state administrative agencies

after the adoption of a no-deference regime. Although

Arizona has only recently departed from its deference

regime, early evidence shows that its agencies may

continue to take regulatory action implementing the

policy goals embodied in the state statutes that they

administer without undue interference. One study

into the early effects of Arizona’s deference-ending

statute found ten opinions from the Arizona appellate

9 Available at https://www.mercatus.org/research/data-vis

ualizations/quantifying-regulation-us-states-state-regdata-20.

24

courts, including two from the Arizona Supreme

Court, that cited and applied the new law. Jonatahan

Riches, Deference Doctrines And A State Legislative

Solution 6–7, n.20, Working Paper, State Judicial

Deference Research Roundtable (October 2021).10

Only one of those decisions ruled against the agency,11

after applying de novo review to the agency’s

interpretation of law, concluding that the agency’s

particular regulation fell outside of its statutory

authority “to adopt rules” and thus “contravene[d]”

the State’s statutes. Saguaro Healing, 470 P.3d at

639; see also Riches, supra at 8 (also discussing

Maricopa Cnty., 490 P.3d at 388, where the court

noted that agency guidelines are neither mandatory

10 Available at https://pacificlegal.org/wp-content/uploads/

2022/01/Deference-Doctrines-and-a-State-Legislative-Solution.

pdf.

11 Compare

Saguaro Healing LLC v. State, 470 P.3d 636

(Ariz. 2020), with Simms v. Ariz. Racing Comm’n, 482 P.3d 1049

(Ariz. Ct. App. 2021); Maricopa Cnty. v. Viola, No. 1 CA-SA 210023, 2021 WL 2005913 (Ariz. Ct. App. May 20, 2021); Gelety v.

Ariz. Med. Bd., No. 1 CA-CV 20-0387, 2021 WL 734735 (Ariz. Ct.

App. Feb. 25, 2021); Heritage At Carefree LLC v. Ariz. Dep’t of

Health Servs., 471 P.3d 658 (Ariz. Ct. App. 2020); Carter Oil Co.,

Inc. v. Ariz. Dep’t of Rev., 460 P.3d 808 (Ariz. Ct. App. 2020);

JH2K I LLC v. Ariz. Dep’t of Health Servs., 438 P.3d 676 (Ariz.

Ct. App. 2019); Ruben v. Ariz. Med. Bd., No. 1 CA-CV 18-0079,

2019 WL 471031 (Ariz. Ct. App. Feb. 7, 2019); Waltz Healing

Ctr., Inc v. Ariz. Dep’t of Health Servs., 433 P.3d 14 (Ariz. Ct.

App. 2018); Silver, 423 P.3d 348.

25

nor subject to deference).12 Further, three of those ten

decisions considered the Arizona Department of

Health Service’s implementation of the relatively

recent Arizona Medical Marijuana Act (“AMMA”),

passed by voter initiative in 2010, which decisions

together show that this state agency may take

effective regulatory action so long as it is consistent

with the policy goals embedded in the text of the

AMMA. Compare JH2K I LLC, 438 P.3d at 310–12

(upholding the agency’s regulation regarding medical

marijuana dispensary registration certificates, after

de novo review, as consistent with the AMMA), and

Waltz Healing Ctr., 433 P.3d at 17–19 (similar), with

Saguaro Healing, 470 P.3d at 639 (reversing agency’s

application of regulation governing medical

marijuana dispensary registration certificates, after

de novo review, where the application exceeded the

bounds of the AMMA).

Arizona’s experience since this study is in accord. In

Gonzales v. Arizona State Bd. of Nursing, 528 P.3d 487 (Ariz. Ct.

App. 2023), decided just this year, the court reversed an agency’s

revocation of a nurse’s license after the agency held an

evidentiary hearing on 13-days’ notice, rather than the 30-days’

notice explicitly required by the Arizona Legislature in the

governing statute. Id. at 490–91. And in T.P. Racing, L.L.L.P.

v. Arizona Dep’t of Gaming, No. 1 CA-CV 22-0224, 2022 WL

17684565 (Ariz. Ct. App. Dec. 15, 2022), the court affirmed an

agency’s denial of an application for an “event wagering operator

license” since, under de novo review, the agency’s interpretation

of the relevant statute best “g[a]ve effect to legislative intent.”

Id. at *1–3 (citations omitted).

12

26

Nor has case law from States that have rejected

or eliminated Chevron-like deference shown that

ending such deference prevents agencies from

successfully defending their actions in court. Indeed,

in Tetra Tech, the Wisconsin Supreme Court rejected

its Chevron-like deference regime and still held in

favor of the administrative agency on the specific

statutory-interpretation question presented in that

very case. See 914 N.W.2d at 40 (lead op. of Kelly, J.).

The same results are likely to follow at the federal

level, should this Court correctly overrule the

Chevron-deference doctrine. Empowering federal

courts to review agency interpretations of law de novo

will strengthen the rule of law, since this will result

in regulated parties being governed by the “fairest

reading of the law that a detached magistrate can

muster,” rather than whatever self-serving reading a

federal agency itself can convince a court to accept as

“reasonable.” Gutierrez-Brizuela, 834 F.3d at 1152

(Gorsuch, J., concurring). And overruling Chevron

will not undermine the federal administrative state;

rather, agencies will now need to advance Congress’

goals, not their own bureaucratic objectives. “We

managed to live with the administrative state before

Chevron. We could do it again.” Id. at 1158.

CONCLUSION

This Court should overrule the Chevron-deference

doctrine and vacate the decision below.

27

Respectfully submitted,

KEITH J. BARNETT

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St., N.E.

Suite 3000

Atlanta, GA 30308

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

SEAN T.H. DUTTON

CARSON A. COX

TROUTMAN PEPPER

HAMILTON SANDERS LLP

KAITLIN L. O’DONNELL

227 W. Monroe St.,

TROUTMAN PEPPER

Suite 3900

HAMILTON SANDERS LLP Chicago, IL 60606

3000 Two Logan

(608) 999-1240

Square, Eighteenth &

misha.tseytlin@

Arch Sts. Philadelphia,

troutman.com

PA 19103

Counsel for Amicus

Curiae

July 2023