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

Supreme Court briefJul 24, 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, in her official capacity as

Secretary of Commerce, et al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR AMICUS CURIAE

THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA

IN SUPPORT OF PETITIONERS

DARYL L. JOSEFFER

ANDREW R. VARCOE

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, NW

Washington, DC 20062

HELGI C. WALKER

Counsel of Record

RUSSELL B. BALIKIAN

JESSICA L. WAGNER

EDWARD B. FERGUSON

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

HWalker@gibsondunn.com

Counsel for Amicus Curiae

QUESTION PRESENTED

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.

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ................................... 1

SUMMARY OF ARGUMENT ..................................... 1

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

Modern Chevron doctrine undermines,

rather than protects, the separation of

powers. .................................................................. 4

A. The Chevron decision itself can be

understood as an effort to prevent Article

III courts from engaging in policymaking,

rather than a reallocation of legislative

and judicial functions to agencies. ................5

B. Modern Chevron doctrine has fostered the

aggrandizement of the Executive at the

expense of other branches. ............................8

C. Modern Chevron doctrine has contributed

to an unpredictable, unstable regulatory

environment. ................................................ 14

II. Although this Court’s recent decisions have

limited Chevron’s excesses, the Court should

reinforce the proper constitutional roles of

Congress, the Executive, and the Judiciary. ..... 18

A. The Court has limited the excesses of

modern Chevron doctrine in important

ways. ............................................................. 19

B. The Court should go further than it has

in its prior decisions to shore up the

separation of powers. ................................... 23

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams Fruit Co. v. Barrett,

494 U.S. 638 (1990) .............................................. 19

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) .......................................... 16

Biden v. Nebraska,

143 S. Ct. 2355 (2023) .......................................... 10

Buffington v. McDonough,

143 S. Ct. 14 (2022) .............................................. 12

Case of Proclamations,

[1610] EWHC K.B. J22 ........................................ 11

Chamber of Com. v. U.S. Dep’t of Labor,

885 F.3d 360 (5th Cir. 2018) ................................ 16

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

467 U.S. 837 (1984) .............................. 2, 5, 6, 7, 21

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) .............................................. 26

City of Arlington v. FCC,

569 U.S. 290 (2013) .................................. 15, 19, 20

Cuomo v. Clearing House Ass’n, LLC,

557 U.S. 519 (2009) .............................................. 22

Edwards’ Lessee v. Darby,

25 U.S. (12 Wheat.) 206 (1827) ............................ 24

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) .......................................... 21

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................. 22

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ........................................ 11, 19

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) .............................................. 14

Gamble v. United States,

139 S. Ct. 1960 (2019) .......................................... 21

Gonzales v. Oregon,

546 U.S. 243 (2006) .............................................. 20

Gundy v. United States,

139 S. Ct. 2116 (2019) .................................... 10, 23

Judulang v. Holder,

565 U.S. 42 (2011) .......................................... 22, 23

King v. Burwell,

576 U.S. 473 (2015) .............................................. 20

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................... 21, 25

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) .............................................. 11

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ......................... 12, 21

MCI Telecomms. Corp. v. AT&T Co.,

512 U.S. 218 (1994) .............................................. 22

McLaren v. Fleischer,

256 U.S. 477 (1921) .............................................. 25

Merritt v. Cameron,

137 U.S. 542 (1890) .............................................. 25

Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ................................................ 22

Myers v. United States,

272 U.S. 52 (1926) ................................................ 13

NRDC v. Gorsuch,

685 F.2d 718 (D.C. Cir. 1982) ................................ 6

Paul v. United States,

140 S. Ct. 342 (2019) ............................................ 23

Pauley v. BethEnergy Mines, Inc.,

501 U.S. 680 (1991) .............................................. 21

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ................................ 3, 10, 23

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) .......................................... 10, 12

Sackett v. EPA,

143 S. Ct. 1322 (2023) .................................... 17, 20

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) .................................... 4, 18, 24

Sorenson Commc’ns Inc. v. FCC,

755 F.3d 702 (D.C. Cir. 2014) .............................. 20

Udall v. Tallman,

380 U.S. 1 (1965) .................................................. 25

United States v. Chi., N. Shore & Milwaukee

R.R. Co., 288 U.S. 1 (1933) .................................. 25

United States v. Home Concrete & Supply,

LLC, 566 U.S. 478 (2012)..................................... 22

United States v. Mead Corp.,

533 U.S. 218 (2001) .............................................. 20

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ........................................ 15, 22

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) .................................. 9

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .............................. 16, 17, 20

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................................................ 9

Zenith Radio Corp. v. United States,

437 U.S. 443 (1978) .............................................. 25

Constitutional Provisions

U.S. Const. art. I, § 1 ................................................... 9

U.S. Const. art. I, § 7 ................................................... 9

U.S. Const. art. III, § 1 .............................................. 12

Statutes

5 U.S.C. § 706 ............................................................ 13

33 U.S.C. § 1362 ........................................................ 17

Regulations

SEC, The Enhancement and Standardization of

Climate-Related Disclosures for Investors,

87 Fed. Reg. 29059 (May 12, 2022) ..................... 14

FTC, Non-Compete Clause Rule,

88 Fed. Reg. 3482 (Jan. 19, 2023) ....................... 14

Other Authorities

1 Annals of Cong. (1789) ........................................... 13

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation,

126 Yale L.J. 908 (2017) ................................ 12, 25

vii

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts,

116 Mich. L. Rev. 1 (2017) ..................................... 8

1 William Blackstone, Commentaries......................... 4

Federal Register, Agencies,

https://www.federalregister.gov/agencies ........... 15

The Federalist No. 51 .................................................. 4

The Federalist No. 62 ................................................ 17

The Federalist No. 75 .................................................. 9

Geo. Wash. Univ., Regul. Stud. Ctr.,

Total Pages Published in the Code of

Federal Regulations,

https://tinyurl.com/bdex48mk.............................. 15

Geo. Wash. Univ., Regul. Stud. Ctr.,

Total Pages Published in the Federal

Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187 (2016) ...................... 11

Brett M. Kavanaugh, Fixing Statutory

Interpretation,

129 Harv. L. Rev. 2118 (2016) ............................. 21

John Locke, The Second Treatise of Government

(Thomas P. Peardon ed., Prentice-Hall, Inc.

1997) ....................................................................... 4

Thomas W. Merrill, The Story of Chevron:

The Making of an Accidental Landmark,

66 Admin. L. Rev. 253 (2014) ................................ 5

viii

Michael B. Rappaport, Chevron and

Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning

of the Administrative Procedure Act,

57 Wake Forest L. Rev. 1281 (2022) ............. 12, 25

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2012) .................................................. 7

U.S. Chamber of Com. Found.,

The Regulatory Impact on Small

Business: Complex. Cumbersome. Costly.

(2017) .................................................................... 16

STATEMENT OF INTEREST 1

The Chamber of Commerce of the United States

of America is the world’s largest business federation.

It represents approximately 300,000 direct members

and indirectly represents the interests of more than 3

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country.

An important function of the Chamber is to

represent the interests of its members in matters

before Congress, the Executive Branch, and the

courts. To that end, the Chamber regularly files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the Nation’s business community.

The Chamber’s members have an interest in ensuring

that each branch of government performs its proper

constitutional role, thus restraining administrative

agencies from imposing unlawful burdens on private

parties.

SUMMARY OF ARGUMENT

Businesses value predictability and stability in

the law. To make effective strategic and investment

decisions, businesses must operate in a regulatory

environment that remains relatively consistent over

time and enables them to know their legal obligations

in advance.

Congress promotes that kind of

regulatory environment when it appropriately

exercises its Article I powers by enacting statutes that

clearly define legal responsibilities ex ante. By

Pursuant to Supreme Court Rule 37.6, the Chamber states that

no counsel for any party authored this brief in whole or in part

and no entity or person, aside from amicus curiae, its members,

or its counsel, made any monetary contribution intended to fund

the preparation or submission of this brief.

contrast, when Congress shirks its constitutional

responsibility by delegating essentially legislative

functions to the Executive Branch, predictability,

stability, and ultimately the rule of law are seriously

undermined.

The Court’s decision in Chevron U.S.A. Inc. v.

NRDC, 467 U.S. 837 (1984), could be understood as an

effort to promote stability and predictability in the

law by keeping policymaking out of the hands of

unelected judges, thereby upholding the separation of

powers. Unfortunately, as the doctrine has evolved

and been applied in practice, modern Chevron

deference—coupled with permissive non-delegation

precedent—has actually eroded the separation of

powers. Applying an overbroad reading of Chevron,

courts have effectively given federal agencies free rein

to enact their own new regulatory requirements

through sweeping rulemakings or after-the-fact

enforcement actions.

Under this expansive

understanding of Chevron, agencies need only

“reasonably” interpret the terms of an existing statute

to impose onerous new burdens on businesses. This

understanding leads in contemporary practice to a

reflexive form of deference on judicial review.

This lenient approach to Chevron also

incentivizes Congress to outsource core policy

decisions (particularly controversial ones) to agencies

through broadly worded statutes, rather than

resolving these issues in the legislative process and

taking responsibility for the outcome. And it enables

agencies to change positions, expand their own

authority, and add regulatory burdens with relative

ease. As a result, many of today’s most significant and

controversial business regulations are imposed by

executive agencies (and, even more dangerously,

“independent” agencies such as the SEC and the

FTC), with minimal congressional involvement and

limited judicial oversight.

That distortion of the respective branches’ proper

roles has helped to foster an unpredictable, unstable

regulatory landscape defined by an ever-growing

number of federal regulations. Such a regime is

harmful to businesses. Instability, uncertainty, and

lack of accountability in the law generate tremendous

deadweight loss in productivity, investment, and

innovation. Businesses cannot effectively plan for the

future when agencies are free to unilaterally change

the basic rules at any time.

Accordingly, it is “appropriate” for the Court to

“reconsider . . . the premises that underlie Chevron

and how courts have implemented that decision,” and

to ensure that the “rules for interpreting statutes and

determining agency jurisdiction and substantive

agency powers . . . accord with constitutional

separation-of-powers principles and the function and

province of the Judiciary.” Pereira v. Sessions, 138 S.

Ct. 2105, 2121 (2018) (Kennedy, J., concurring). The

Court has adopted some limitations on the worst

excesses of modern Chevron doctrine, but that is not

enough; reflexive deference continues to be the norm

in the lower courts. If Chevron can be salvaged at all,

the only path to doing so is by adhering faithfully to

the Constitution’s design for the separation of powers.

In our constitutional structure, Congress must

make the policy judgments that govern private

conduct by passing clear statutes that prospectively

put regulated entities on notice of their specific

obligations. The Executive’s role is to execute those

clear statutes, making relatively minor, gap-filling

interpretive judgments as needed when applying law

to facts. And the Judiciary must say what the law is,

using traditional tools of statutory construction to

faithfully apply statutes as written without secondguessing valid policy judgments. The Court can

enforce those structural limitations by rejecting the

all-too-ready use of Chevron deference and enforcing

non-delegation principles, including by making clear

that statutory silence or ambiguity, by itself, is

insufficient to delegate authority to an agency. And

the Court can reinvigorate Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944), which allows courts to give

due respect to longstanding agency interpretations

while allowing the Judiciary to say what the law is.

Keeping each branch of government in its proper

sphere of authority will preserve freedom and enable

American industry to operate in a clear and

predictable regulatory environment.

ARGUMENT

Modern Chevron doctrine undermines,

rather than protects, the separation of

powers.

Our tripartite constitutional structure reflects the

longstanding principle that separating the legislative,

executive, and judicial powers protects against

despotic and arbitrary government. See, e.g., 1

William Blackstone, Commentaries *150–51; John

Locke, The Second Treatise of Government 82

(Thomas P. Peardon ed., Prentice-Hall, Inc. 1997)

(1690); The Federalist No. 51 (Madison). Chevron

itself could be viewed as vindicating that principle

insofar as it restrained improper judicial

policymaking. However, the modern phenomenon of

reflexive

judicial

deference

the

legal

“interpretations” of administrative agencies has taken

on a life of its own. All too often, courts applying

Chevron assume that Congress has delegated

sweeping lawmaking power to agencies through

vague or seemingly open-ended statutory provisions,

and they readily defer to aggressive new rules that

agencies impose under these statutes on the ground

that they reflect arguably “reasonable” constructions.

So applied, today’s Chevron doctrine thus

affirmatively threatens the separation of powers,

exacerbates non-delegation concerns, and contributes

to the expansion of unduly burdensome, unlawful

regulations.

A. The Chevron decision itself can be

understood as an effort to prevent

Article III courts from engaging in

policymaking,

rather

than

reallocation of legislative and judicial

functions to agencies.

The Court’s 6-0 decision in Chevron had a far

more limited reach in 1984 than it has come to assume

in modern administrative law. See Thomas W.

Merrill, The Story of Chevron: The Making of an

Accidental Landmark, 66 Admin. L. Rev. 253, 275

(2014) (noting that Justice Stevens, the author of

Chevron, characterized the decision as a “simpl[e] . . .

restatement of existing law, nothing more or less”). At

issue in Chevron was the meaning of the term

“stationary source” in the Clean Air Act Amendments

of 1977. 467 U.S. at 859. The Act required permits

for “new or modified major stationary sources” of air

pollution, but did not define the phrase “stationary

source” for purposes of the permitting program. See

id. at 859–60. The EPA adopted a regulation taking a

plantwide view of the term “source,” meaning that an

existing plant with several pollution-emitting

components could install or modify equipment

without obtaining a permit as long as the alteration

did not increase total emissions from the plant. See

id. at 858. But the D.C. Circuit rejected the EPA’s

interpretation, on the ground that a componentspecific approach would more effectively serve the

“purpos[e]” of the statute: “to improve air quality.”

NRDC v. Gorsuch, 685 F.2d 718, 726–27 & n.39 (1982)

(reasoning that in the absence of a statutory

definition, “the purposes of the nonattainment

program should guide our decision”).

In reversing the D.C. Circuit, this Court explained

that the lower court had “misconceived the nature of

its role.” Chevron, 467 U.S. at 845. Once the court of

appeals had “decided that Congress itself had not

commanded” a component-specific definition of

“stationary source,” the court was not at liberty to

impose that definition based on its own policy views.

Id. at 842.

“When a challenge to an agency

construction of a statutory provision, fairly

conceptualized, really centers on the wisdom of the

agency’s policy”—rather than the legal meaning of the

statute—“federal judges . . . have a duty to respect

legitimate policy choices” made by agencies. Id. at 866

(emphasis added). Unlike courts, an agency to which

Congress has properly delegated authority to make

policy “may, within the limits of that delegation,

properly rely upon the incumbent administration’s

views of wise policy to inform its judgments.” Id. at

865. By contrast, “[j]udges are not experts in the

field,” and the “policy arguments” made by the parties

were “more properly addressed to legislators or

administrators, not to judges.” Id. at 864–65.

Chevron’s central conclusion—that courts should

defer to agencies’ legitimate policy-based decisions

filling narrow statutory gaps properly left open by

Congress—thus was rooted in respect for the

separation of powers. But it was based on two critical

assumptions. First, this Court accepted the D.C.

Circuit’s view “that Congress did not actually have an

intent” on the specific question at issue, meaning that

the question could not properly be resolved by a court.

467 U.S. at 845. According to the Court, Congress had

“left a gap for the agency to fill”—a “narrow issue” that

arose “in a technical and complex arena.” Id. at 843,

862–63 (quotation marks omitted). 2 Second, the

Court implicitly assumed that this statutory gap was

not so large as to violate the non-delegation doctrine—

the NRDC had not raised a non-delegation challenge,

and the Court took the view that the EPA’s plant-wide

view of “stationary sources” was the type of relatively

minor, interstitial “formulation of policy” that is

“necessarily

require[d]”

when

agency

“administer[s] a congressionally created program.”

Id. at 843 (ellipsis and quotation marks omitted). See

also id. at 865 (explaining that several factors

supported conclusion that agency interpretation

“represents a reasonable accommodation of

manifestly competing interests and is entitled to

deference: the regulatory scheme is technical and

complex, the agency considered the matter in a

detailed and reasoned fashion, and the decision

2 Since 1984, when Chevron was decided, this Court has adopted

a more robust method of statutory interpretation that looks to

the original, public meaning of the statutory text—not to subjective legislative intent—and gives far less (or no) weight to legislative history in interpreting statutes. See Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

56 (2012). As a result, Chevron deference as originally articulated should apply to far fewer questions now than may have

been true in 1984.

involves reconciling conflicting policies” (footnotes

omitted)).

The Court thus concluded that by stepping in and

rejecting the agency’s decision, the D.C. Circuit had

improperly engaged in judicial policymaking. So

understood, Chevron reflected an effort to prevent

Article III courts from overstepping the bounds of the

Judiciary’s proper role.

B. Modern Chevron doctrine has fostered

the aggrandizement of the Executive at

the expense of other branches.

Whatever one might say of the Chevron decision

as an original matter, it is clear that today’s Chevron

doctrine does not serve the separation of powers. Far

too often, courts applying Chevron have found latent

ambiguity in statutes and thus deferred to sweeping

new agency rules asserting broad powers that purport

to “interpret” that ambiguity, without fully deploying

the traditional tools of statutory interpretation or

carefully policing limits on congressional delegations

of authority.

Unsurprisingly, agencies fare

significantly better in Chevron cases than in cases

under de novo review.

See Kent Barnett &

Christopher J. Walker, Chevron in the Circuit Courts,

116 Mich. L. Rev. 1, 6 (2017) (agencies prevailed in

77.4% of cases surveyed where a lower court applied

the Chevron framework, but prevailed in only 38.5%

of cases under de novo review).

In practice, modern Chevron doctrine’s reflexive

deference to administrative agencies’ aggressive

statutory interpretations undermines the separation

of powers in at least three ways.

First, easy deference to agency statutory

interpretations incentivizes Congress to adopt—or

leave in place—open-ended or vague statutes that

operate as broad delegations of legislative authority.

This practice is at odds with our government’s basic

structural design.

The Constitution vests “[a]ll

legislative Powers” in Congress. U.S. Const. art. I, § 1

(emphasis added). The core of that legislative power

is “to enact laws, or, in other words, to prescribe rules

for the regulation of the society.” The Federalist No.

75, at 449 (Hamilton) (Clinton Rossiter ed., 2003).

The text of Article I “permits no delegation of those

powers.” Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 472 (2001); accord Wayman v. Southard, 23 U.S.

(10 Wheat.) 1, 42–43 (1825) (Marshall, C.J.) (“It will

not be contended that Congress can delegate . . .

powers which are strictly and exclusively

legislative.”). And where the Constitution does permit

the Executive to participate in lawmaking, it carefully

circumscribes that participation—the President may

either approve and sign a bill, or otherwise return it

to Congress. See U.S. Const. art. I, § 7. This process

of bicameralism and presentment ensures democratic

accountability, and largely limits the Executive to

executing laws that Congress enacts. While some

interpretive judgment may be necessary for the

Executive to apply statutes to particular facts, the

Constitution does not allow unilateral lawmaking in

the Executive Branch.

Modern Chevron doctrine, supported by

permissive non-delegation precedent, subverts this

prohibition by allowing administrative agencies to

enact rules governing private conduct based on

strained interpretations of general language in

existing statutes.

The Court’s non-delegation

precedents have been interpreted to allow Congress to

delegate vast rulemaking power to agencies, so long

as Congress provides some sort of “intelligible

principle” to purport to guide their discretion. See

generally Gundy v. United States, 139 S. Ct. 2116,

2138–42 (2019) (Gorsuch, J., dissenting) (tracing this

development). Shielded from rigorous enforcement of

non-delegation principles, agencies have routinely

claimed broad authority to adopt new rules governing

regulated entities. Congress allows—and, by enacting

broad statutes, even invites—agencies to do so

because many courts applying Chevron do not

carefully analyze whether an agency’s interpretation

of a statutory provision comports with the correct

reading of that provision. Instead, courts all too

quickly find “ambiguities” in statutory provisions –

and

then

readily

conclude

that

agencies’

interpretations of such provisions are “reasonable.”

See, e.g., Pereira, 138 S. Ct. at 2120–21 (Kennedy, J.,

concurring).

In practice, this has meant that the Executive

Branch can sidestep Congress and accomplish many

policy objectives through agency rulemakings and

enforcement actions without authorization by

Congress. Cf. Biden v. Nebraska, 143 S. Ct. 2355,

2374 (2023) (“The Secretary’s assertion of

administrative authority has conveniently enabled

him to enact a program that Congress has chosen not

to enact itself.” (brackets and quotation marks

omitted)). And Congress, for its part, is incentivized

to write statutes that deflect political heat and judicial

scrutiny, knowing that agencies can seize upon

vaguely worded or poorly drafted provisions to adopt

rules that enjoy unique leeway in the courts and will

still be treated as having the “‘force and effect of law.’”

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015)

(citation omitted). The combined effect of these

strategic interests reverses the constitutional

allocation of legislative power:

The Executive

becomes the primary engine of new “laws,” and—so

long as the President supports those decisions—

future congressional majorities cannot undo them

without mustering a supermajority to enact new

legislation that can override the President’s veto.

Particularly in a gridlocked government, that “check”

on Executive lawmaking power is cold comfort for

regulated entities.

Second, modern Chevron doctrine allows

administrative agencies to claim significant powers

based on congressional silence or even poor drafting,

in effect requiring courts to presume that Congress

delegated interpretive and rulemaking authority

simply because a statute could be clearer. See FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 159

(2000) (noting that Chevron deference “is premised on

the theory that a statute’s ambiguity constitutes an

implicit delegation from Congress to the agency to fill

in the statutory gaps”). This paradoxically leads

courts to “bas[e] their deference on statutory

authorization while presuming such authorization

from what the statutes do not say.”

Philip

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

1187, 1192 n.15 (2016). And it contravenes the

longstanding principle that the Executive may not

promulgate rules governing primary conduct without

the legislature’s say-so. See, e.g., La. Pub. Serv.

Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n

agency literally has no power to act . . . unless and

until Congress confers power upon it.”); Case of

Proclamations, [1610] EWHC K.B. J22 (Coke, C.J.)

(vacating the King’s economic proclamations because

he could not lawfully “change any part of the common

law, nor create any offence by his proclamation, which

was not an offence before, without Parliament”).

Third, lenient deference undermines federal

courts’ constitutionally assigned duty to interpret the

law. Article III vests “[t]he judicial Power” in this

Court and “in such inferior Courts as the Congress

may from time to time ordain and establish.” U.S.

Const. art. III, § 1. The core of the judicial power is

“to say what the law is.” Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803); see Perez, 575 U.S. at 119–

20 (Thomas, J., concurring in the judgment). By

giving undue deference to agencies’ statutory

interpretation, courts reallocate primary interpretive

authority (i.e., the judicial power) to the Executive.

This undercuts the independence and neutrality

contemplated in Article III by placing a “finger on the

scales of justice in favor of the most powerful of

litigants, the federal government, and against

everyone else.” Buffington v. McDonough, 143 S. Ct.

14, 19 (2022) (Gorsuch, J., dissenting from denial of

cert.). All too often, courts have relied on Chevron to

abdicate their constitutionally assigned role of

statutory interpretation by allowing the Executive to

bind them to something other than the best reading of

the law.

For similar reasons, inferring a delegation of

power from statutory silence, or otherwise deferring

readily to agencies’ less-than-fully-persuasive

interpretations of statutory provisions that they

administer, is in major tension with the

Administrative Procedure Act (APA). Cf. Aditya

Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 126 Yale L.J. 908, 995–99

(2017); Michael B. Rappaport, Chevron and

Originalism: Why Chevron Deference Cannot Be

Grounded in the Original Meaning of the

Administrative Procedure Act, 57 Wake Forest L. Rev.

1281, 1289–96 (2022). The APA expressly requires

that courts “decide all relevant questions of law,

interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of

an agency action.” 5 U.S.C. § 706. While § 706 does

not preclude the Executive from performing its own

constitutionally assigned duties in executing the law,

it assumes the Judiciary will perform a lawinterpreting role.

To the extent that reflexive

deference transfers law-interpreting power to the

Executive, it contravenes Congress’s command in

§ 706.

These separation-of-powers and APA concerns are

only compounded in the context of deference to socalled “independent” agencies. Such agencies raise

additional constitutional issues insofar as they are

insulated from executive control—i.e., the ability of

the President to remove agency heads—and thus from

political accountability. See Myers v. United States,

272 U.S. 52, 163–64 (1926) (“[A]rticle 2 grants to the

President the executive power of government—i.e.,

the general administrative control of those executing

the laws, including the power of appointment and

removal[.]”); 1 Annals of Cong. 463 (1789) (remarks of

James Madison) (“[I]f any power whatsoever is in its

nature Executive, it is the power of appointing,

overseeing, and controlling those who execute the

laws.”). In recent years, these agencies have been

particularly aggressive in asserting regulatory

authority over American businesses, proposing

significant rules, which often raise major legal and

policy questions on which Congress would be expected

to have a view, without specific congressional

authorization. See, e.g., FTC, Non-Compete Clause

Rule, 88 Fed. Reg. 3482 (Jan. 19, 2023) (proposing

wholly to ban noncompete clauses in employment

contracts as an “unfair method of competition”); SEC,

The Enhancement and Standardization of ClimateRelated Disclosures for Investors, 87 Fed. Reg. 29059

(May 12, 2022) (proposing to require publicly traded

companies to make broad array of disclosures related

to greenhouse gas emissions and climate-related

risks). Modern Chevron doctrine thus exacerbates the

threats to the Constitution’s allocation of power that

are posed by independent agencies. These politically

unaccountable agencies claim vast authority to make

sweeping, legislation-like rules based on long-extant,

vaguely worded statutes, hoping to survive minimal

judicial scrutiny of the resulting regulations.

In short, modern Chevron deference and overly

permissive non-delegation precedents have shifted

lawmaking power away from Congress to

administrative agencies, while curtailing the

Judiciary’s power to determine what the law is. While

Chevron itself may have aimed to promote political

accountability, today’s practice of reflexive deference

has undermined the separation of powers.

C. Modern

Chevron

doctrine

has

contributed to an unpredictable,

unstable regulatory environment.

Since Chevron was decided in 1984, agencies’

regulatory reach has grown. See Free Enter. Fund v.

PCAOB, 561 U.S. 477, 499 (2010) (noting

administrative state now “touches almost every

aspect of daily life”). “The Framers could hardly have

envisioned today’s ‘vast and varied federal

bureaucracy’ and the authority administrative

agencies now hold over our economic, social, and

political activities.” City of Arlington v. FCC, 569 U.S.

290, 313 (2013) (Roberts, C.J., dissenting) (citation

omitted).

Hundreds of Executive Branch and

independent agencies or components now make

policy through rulemaking, to say nothing of

adjudications for which agencies sometimes claim

deference. See generally Federal Register, Agencies,

https://www.federalregister.gov/agencies.

As a result, the scope of Chevron’s potential

applicability has also expanded. The Code of Federal

Regulations has ballooned from just over 110,000

pages in 1984 to more than 180,000 pages as of 2021,

a 64% increase in the pages of regulations binding

American companies and individuals. See Geo. Wash.

Univ., Regul. Stud. Ctr., Total Pages Published in the

Code of Federal Regulations, https://tinyurl.com/

bdex48mk. And the Federal Register has grown from

roughly 50,000 pages in 1984 to well over 80,000 in

2022, a 60% increase. See Geo. Wash. Univ., Regul.

Stud. Ctr., Total Pages Published in the Federal

By fostering sweeping deference to agencies,

modern Chevron doctrine has exacerbated the

qualitative problems inherent in this quantitative

explosion of regulations. The doctrine has allowed

agencies to accrete more and more power that

properly belongs under Article I without judicial

oversight under Article III. Emboldened by Chevron

deference, agencies have adopted increasingly

aggressive interpretations of the statutes they

enforce, frequently finding “unheralded power to

regulate” in seemingly open-ended language. Util. Air

Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).

Consider the EPA’s effort to fundamentally

restructure “the Nation’s overall mix of electricity

generatio[n] to transition from 38% coal to 27% coal

by 2030” based on “the vague language of an ancillary

provision of” the Clean Air Act. West Virginia v. EPA,

142 S. Ct. 2587, 2607, 2610 (2022) (brackets and

quotation marks omitted). Or the CDC’s effort to

institute a nationwide eviction moratorium based on

a “wafer-thin reed” of textual authority. Ala. Ass’n of

Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) (per

curiam). Or the Department of Labor’s attempt to

“transform the trillion-dollar market for IRA

investments, annuities and insurance products,” and

to “regulate in an entirely new way hundreds of

thousands of financial service providers and

insurance companies” in that market. Chamber of

Com. v. U.S. Dep’t of Labor, 885 F.3d 360, 363, 387

(5th Cir. 2018).

The result is bad for free enterprise. Today’s morass of regulations, aggravated and encouraged by the

expansion of Chevron, imposes astronomical costs in

compliance, lost productivity, and higher prices,

reaching as high as $1.9 trillion per year. See generally U.S. Chamber of Com. Found., The Regulatory

Impact on Small Business: Complex. Cumbersome.

Costly. 4 (2017). The costs are higher on average for

smaller businesses. Id. The current Chevron regime

also undermines stability and predictability for businesses because they cannot ascertain their regulatory

obligations based on the laws that Congress has enacted. Rather, regulatory obligations today turn on

unstable agency statutory interpretations, sometimes

through prospective rulemaking and other times

without any prior notice at all, in after-the-fact adjudications. When the stakes are high or politically

controversial, the risk of instability only increases, as

agency leadership changes from administration to administration. See, e.g., Sackett v. EPA, 143 S. Ct.

1322, 1332–35 (2023) (discussing long history of EPA

and U.S. Army’s changing interpretations of “waters

of the United States” in the Clean Water Act, 33

U.S.C. § 1362(7)); West Virginia, 142 S. Ct. at 2603–

06 (discussing EPA’s reversal from one administration to another on regulation of power plants’ carbon

dioxide emissions).

The citizenry’s ability to elect congressional

representatives means little “if the laws be so

voluminous that they cannot be read, or so incoherent

that they cannot be understood; if they be repealed or

revised before they are promulgated, or undergo such

incessant changes” that one must guess at their

content. The Federalist No. 62, at 379 (Madison).

Today’s regulatory environment is not far from fitting

that description. The endless cycle of what amounts

to Executive Branch lawmaking raises transaction

costs for businesses by introducing unresolvable

regulatory instability into investment and strategic

decisions. When agencies can unilaterally exercise

core legislative power by exploiting general language

in statutes to make rules of great economic

significance, and later flip-flop on those rules, the

resulting uncertainty makes it hard for businesses to

plan for the future.

II. Although this Court’s recent decisions

have limited Chevron’s excesses, the Court

should reinforce the proper constitutional

roles of Congress, the Executive, and the

Judiciary.

This Court has recently reaffirmed important limitations on Chevron, emphasizing the separation of

powers in general and the primacy of the courts in interpreting the law in particular. But because lower

courts continue to apply the doctrine expansively, this

Court should take this opportunity to shore up the

separation of powers. Specifically, the Court should

explain that Congress must provide clear ex ante guidance to regulated entities through statutory commands that set the rules of the road for private conduct. The Court should emphasize that the Executive’s constitutional role is to execute laws that Congress has enacted, not to engage in lawmaking itself

via administrative agencies. The Constitution does

not contain an exception to Article I for technocrats.

And the Court should affirm that federal courts are

charged with using all available tools of statutory construction, including appropriate interpretive canons,

to ascertain the meaning of statutes. This means

that, if Chevron survives, judicial deference to agencies’ statutory interpretation should be strictly limited

to properly delegated, gap-filling policy judgments of

a type that necessarily arise when the Executive implements rules set by Congress. Otherwise, an

agency’s interpretation of a statute should be accepted

only insofar as it has the “power to persuade,” Skidmore, 323 U.S. at 140, based on the best reading of the

statute.

A. The Court has limited the excesses of

modern Chevron doctrine in important

ways.

In recent years, the Court has adopted and

reaffirmed important constraints on the expansive

approach to Chevron taken by lower courts. These

decisions make clear that reflexive deference to

agencies is never appropriate, and the Court should

reaffirm that foundational point.

Some of the most significant limitations on

Chevron occur at “step zero”—the threshold inquiry

that determines whether Chevron’s analytical

framework applies at all. At the outset, “before a

court may grant [an agency] deference, it must on its

own decide whether Congress—the branch vested

with lawmaking authority under the Constitution—

has in fact delegated to the agency lawmaking power

over the ambiguity at issue.” City of Arlington, 569

U.S. at 317 (Roberts, C.J., dissenting); accord Adams

Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (“A

precondition to deference under Chevron is a

congressional

delegation

administrative

authority.”). Congressional silence, of course, is not

itself a delegation of authority to an agency to do

anything.

Accordingly, this Court has required Congress to

speak clearly if it intends to delegate to

administrative agencies power to regulate on

questions of great “economic and political

significance.” Brown & Williamson, 529 U.S. at 160.

The Court has recognized that in such “major

questions” cases, “both separation of powers

principles and a practical understanding of legislative

intent” require clear congressional authorization for

the power claimed by the agency. West Virginia, 142

S. Ct. at 2609–10. Other interpretive canons and

principles serve similar purposes. For example, when

the EPA asserted authority to “significantly alter the

balance between federal and state power and the

power of the Government over private property” in

promulgating regulations enforcing the Clean Water

Act, it needed to point to an “exceedingly clear”

statutory basis. Sackett, 143 S. Ct. at 1341 (quotation

marks omitted). Of course, even in a run-of-the-mill

statutory interpretation case, a court may not afford

Chevron deference to an agency interpretation of a

statute unless the court first concludes that Congress

has delegated authority to the agency “to definitively

interpret” the “particular provision” at issue. City of

Arlington, 569 U.S. at 320, 322 (Roberts, C.J.,

dissenting) (quotation marks omitted).

Relatedly, agencies cannot claim deference when

they seek to regulate on matters outside their

expertise. See Gonzales v. Oregon, 546 U.S. 243, 267

(2006); cf. King v. Burwell, 576 U.S. 473, 486 (2015).

For this reason, deference is unwarranted where, for

instance, an agency interprets a statute that applies

generally across Executive agencies.

See, e.g.,

Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706

(D.C. Cir. 2014) (“[A]n agency has no interpretive

authority over the APA”). And a congressional

delegation of authority cannot be assumed for

informal agency interpretations, where the agency

has not spoken authoritatively on the matter. United

States v. Mead Corp., 533 U.S. 218, 231–32 (2001).

The Court has also made clear that courts, not

agencies, have primary competence in interpreting

statutes. Thus, an agency’s claim to interpretive

authority must always receive careful judicial

scrutiny. Chevron itself made clear that “step one” is

rigorous, requiring courts to exhaust the “traditional

tools” of statutory interpretation. 467 U.S. at 843 n.9

(“If a court, employing traditional tools of statutory

construction, ascertains that Congress had an

intention on the precise question at issue, that

intention is the law and must be given effect.”); cf.

Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). To that

end, courts must give full effect to “(1) the words

themselves, (2) the context of the whole statute, and

(3) any other applicable semantic canons.” Brett M.

Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2145 (2016); see also Epic Sys.

Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (“Where,

as here, the canons supply an answer, ‘Chevron leaves

the stage.’” (citation omitted)). All the tools of

construction must be used.

Some statutes may be hard to parse. But the

mere fact that “disputed regulatory language is

complex” or “not immediately accessible” does not

mean deference is warranted. Pauley v. BethEnergy

Mines, Inc., 501 U.S. 680, 706–07 (1991) (Scalia, J.,

dissenting).

Statutory interpretation is the

Judiciary’s charge under Article III, and that goes for

hard texts as well as easy-to-understand texts—

perhaps especially the hard ones. See Marbury, 5 U.S.

(1 Cranch) at 177. And it will be a “rare occasion” on

which legal texts are “truly ambiguous—meaning

susceptible to multiple, equally correct legal

meanings.” Gamble v. United States, 139 S. Ct. 1960,

1987 (2019) (Thomas, J., concurring); see Pauley, 501

U.S. at 707 (Scalia, J., dissenting) (ambiguity requires

“more than one reasonable interpretation”).

The Court has also made clear that Chevron’s

“step two” does not yield automatic deference.

Agencies may not shoehorn ill-fitting interpretations

into statutory text simply because there are multiple

plausible readings of the text. See Cuomo v. Clearing

House Ass’n, LLC, 557 U.S. 519, 525 (2009) (“[T]he

presence of some uncertainty does not expand

Chevron deference to cover virtually any

interpretation[.]”); United States v. Home Concrete &

Supply, LLC, 566 U.S. 478, 493 n.1 (2012) (Scalia, J.,

concurring in part and concurring in the judgment)

(“Whether a particular statute is ambiguous makes no

difference if the interpretation adopted by the agency

. . . is clearly beyond the scope of any conceivable

ambiguity.”). And poor statutory drafting does not

open the door to expansive interpretation. Claims to

deference that involve more than minor, technical

gap-filling should be met by judicial skepticism in

applying both step one and step two of Chevron. Cf.

Util. Air Regul. Grp., 573 U.S. at 324; MCI

Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 226,

229, 231 (1994) (rejecting invocation of Chevron

deference for agency interpretation that would have

“eliminat[ed] . . . the crucial provision of the statute

for 40% of a major sector of the industry”).

In addition, whether under Chevron step two or

State

Farm

arbitrary-and-capricious

review,

administrative agencies must offer “reasoned

explanation[s]” supporting their interpretation of the

statutes they administer. FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 515 (2009). The agency’s

interpretation must be “based on a consideration of

the relevant factors” and must not reflect a “clear

error of judgment.” Judulang v. Holder, 565 U.S. 42,

53 (2011) (quoting Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Put

simply, the interpretation must fall within the bounds

of a permissible delegation to the agency and be

grounded in a rational application of the agency’s

substantive expertise. See id. at 52.

B. The Court should go further than it has

in its prior decisions to shore up the

separation of powers.

Despite the above-described safeguards that this

Court has adopted against the expansive application

of Chevron, lower courts have continued to readily

extend deference to agencies, ignoring separation-ofpowers principles. This lenient approach to Chevron

incentivizes Congress to abdicate its lawmaking role,

and allows courts to abdicate their interpretive

obligations. The Court should take this opportunity

to eliminate those incentives for constitutional

mischief. See Pereira, 138 S. Ct. at 2121 (Kennedy, J.,

concurring). While Chevron was unquestionably

correct to say that courts should not make policy,

deference to agencies has gone too far.

This Court should reaffirm that Congress is

required to carry out its constitutional responsibility

under Article I to pass clear statutes that set the rules

governing private conduct and put regulated persons

on notice of their legal obligations. See Gundy, 139 S.

Ct. at 2142 (Gorsuch, J., dissenting); Paul v. United

States, 140 S. Ct. 342, 342 (2019) (statement of

Kavanaugh, J., respecting denial of cert.). Congress

cannot punt on policy choices by explicitly or

implicitly delegating lawmaking authority to the

Executive Branch, and it certainly cannot delegate

authority through mere silence or lack of clarity in a

statute. For this and other reasons, rigorous “step

zero” analysis is essential if Chevron survives.

Exacting application of steps one and two is also

required. While courts may of course consider agency

interpretations and practice, any deference to an

agency’s application of a statute must be narrowly

confined

properly

delegated,

gap-filling

determinations, founded on the agency’s specialized

experience and expertise, that merely implement the

law that Congress has enacted. Without at least these

limitations, Chevron jurisprudence cannot possibly be

reconciled with the separation of powers.

The Court should also reinforce Skidmore

deference. In a wide range of cases, Skidmore

deference is perfectly appropriate and sufficient to

resolve interpretive questions relating to statutes

administered by agencies. Under Skidmore, an

agency’s interpretation of a statute, “while not

controlling upon the courts by reason of [its]

authority,” does “constitute a body of experience and

informed judgment to which courts and litigants may

properly resort for guidance” and can receive

deference based on “the thoroughness evident in its

consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements,

and all those factors which give it power to persuade,

if lacking power to control.” 323 U.S. at 140.

Skidmore has a long historical pedigree that

recognizes agency expertise and tradition, and affords

them appropriate respect, without impinging on the

judicial power to say what the law is. As the Court

explained as early as Edwards’ Lessee v. Darby, 25

U.S. (12 Wheat.) 206 (1827): “In the construction of a

doubtful and ambiguous law, the cotemporaneous

construction of those who were called upon to act

under the law, and were appointed to carry its

provisions into effect, is entitled to very great respect.”

Id. at 210 (emphasis added). Similarly, the Court has

long recognized the importance of continuing agency

practice: “A regulation of a department . . . cannot

repeal a statute; neither is a construction of a statute

by a department charged with its execution to be held

conclusive and binding upon the courts of the country,

unless such construction has been continuously in

force for a long time.” Merritt v. Cameron, 137 U.S.

542, 551–52 (1890) (emphasis added); see also Kisor,

139 S. Ct. at 2426 (Gorsuch, J., concurring in the

judgment); Bamzai, The Origins of Judicial Deference

to Executive Interpretation, supra, at 943–47;

Rappaport, Chevron and Originalism, supra, at 1287–

88.

Under Skidmore, agency interpretations of

statutory provisions must be given the weight they

actually deserve, but no more. Agencies are simply

not allowed to displace the role of courts in

determining the meaning of legislative enactments.

The Skidmore considerations can be particularly

important to regulated entities, who rely on the

predictability and stability afforded by agency

interpretations that reflect thorough and careful

consideration, are well reasoned, and remain

consistent over time. That much has been clear for

decades. See Zenith Radio Corp. v. United States, 437

U.S. 443, 450, 457–58 (1978); McLaren v. Fleischer,

256 U.S. 477, 480–81 (1921). Investment and other

decisions that private parties make in reliance on

considered, consistent agency interpretations should

not be lightly disrupted by oscillation in agency policy

preferences. See United States v. Chi., N. Shore &

Milwaukee R.R. Co., 288 U.S. 1, 14 (1933); cf. Udall v.

Tallman, 380 U.S. 1, 4, 18 (1965). And, as this Court

more recently explained, “unfair surprise” would

result if a new interpretation gave rise to “potentially

massive liability . . . for conduct that occurred well

before that interpretation was announced.”

Christopher v. SmithKline Beecham Corp., 567 U.S.

142, 155–56 (2012) (quotation marks omitted).

CONCLUSION

Modern Chevron doctrine has distorted the

separation of powers for too long. The Court should

reverse the judgment of the court of appeals.

Respectfully submitted,