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, in her official capacity as

Secretary of Commerce, et al.,

Respondents.

♦

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

♦

BRIEF OF AMICUS CURIAE

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

♦

July 21, 2023

Ivan L. London

Counsel of Record

David C. McDonald

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

Attorneys for Amicus Curiae

i

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.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........................

i

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

iv

IDENTITY AND INTEREST

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

1

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

3

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

5

I.

STARE DECISIS DOES NOT APPLY

TO DEFERENCE REGIMES SUCH AS

CHEVRON DEFERENCE.....................

5

THE CHEVRON COURT DEFERRED

TO AGENCY INTERPRETATION AS A

LAST-DITCH INTERPRETIVE TOOL

10

III. THE COURT HAS NOT APPLIED

“CHEVRON DEFERENCE” IN THE

UNIFORM MANNER ACCORDED TO

TRUE PRECEDENT .............................

14

IV. THE COURT SHOULD INSTRUCT

LOWER

COURTS

THAT

THEY

SHOULD ONLY USE “CHEVRON

DEFERENCE” AS A LAST-DITCH

INTERPRETIVE CANON .....................

19

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

23

II.

iii

TABLE OF AUTHORITIES

CASES

PAGES(S)

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ................................

1

Am. Legion v. Am. Humanist Ass’n,

139 S. Ct. 2067 (2019) ............................

1

Baldwin v. United States,

140 S. Ct. 690 (2020) ..............................

21

Biden v. Nebraska,

600 U.S. ___ (2023).................................

11

Buffington v. McDonough,

143 S. Ct. 14 (2022) ...................... 8, 12, 13, 21, 22

Burnet v. Chicago Portrait Co.,

285 U.S. 1 (1932) ....................................

12

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc.,

467 U.S. 837 (1984) ................................

1–25

Ex parte Bollman,

8 U.S. 75 (1807) ......................................

5

F.C.C. v. Fox Television Stations, Inc.,

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

9

Free Enterprise Fund v. Public Company

Accounting Oversight Bd.,

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

22

iv

General Dynamics Land Systems, Inc. v. Cline,

540 U.S. 581 (2004) ................................

89

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) ............................

1

Kisor v. Wilkie,

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

8, 19

Marbury v. Madison,

5 U.S. 137 (1803) ...................... 7, 8, 10, 12, 20, 23

Payne v. Tennessee,

501 U.S. 808 (1991) ................................

9

Pereira v. Sessions,

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

21

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ..................................

20

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ............................

8

Smith v. Allwright,

321 U.S. 649 (1944) ...............................

9

Smith v. City of Jackson, Miss.,

544 U.S. 228 (2005) ...................... 9, 11, 14, 15, 18

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps. Of Eng’rs (SWANCC),

531 U.S. 159 (2001) ..........................

15, 16, 17

U.S. v. Mead Corp.,

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

18

v

U.S. v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ...............................

17

Statute

47 U.S.C.A. § 303(q) ......................................

13

OTHER AUTHORITIES

Black’s Law Dictionary (11th ed. 2019) .......

6

Blackstone, William, 1 Commentaries

69 (3d ed. 1768) .....................................

6

Brett M. Kavanaugh, Fixing Statutory

Interpretation,

129 HARV. L. REV. 2118 (2016) .............

7

Connor N. Raso & William N. Eskridge,

Jr., Chevron as a Canon, Not a

Precedent: An Empirical Study of

What Motivates Justices in Agency

Deference Cases, 110 COLUM. L.

REV. 1727 (2010) ..

8, 9, 10, 11, 12, 16, 18, 20

Lisa Schultz Bressman, How Mead Has

Muddled Judicial Review of

Agency Action, 58 VAND. L. REV.

1443 (2005) ............................................

18

Ryan D. Doerfler, How Clear is “Clear”?,

109 VA. L. REV. 651 (2023) .....................12, 14, 16

1

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Mountain States Legal Foundation (Mountain

States) is a nonprofit, public-interest law firm

organized under the laws of the state of Colorado.

Mountain States is dedicated to bringing before the

courts issues vital to the defense and preservation of

individual liberties, the right to own and use property,

the free enterprise system, and limited and ethical

government. Since its creation in 1977, Mountain

States attorneys have been active in litigation on the

proper interpretation and application of statutory,

regulatory, and constitutional provisions. See, e.g.,

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

(1995) (Mountain States serving as lead counsel); Am.

Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019)

(amicus curiae in support of petitioner); Kennedy v.

Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (amicus

curiae in support of petitioner).

1 Per Supreme Court Rule 37.6, the undersigned affirm that no

counsel for a party authored this brief in whole or in part, and no

person or entity made a monetary contribution for the

preparation or submission of this brief.

2

Mountain States’ clients seek predictability and

fairness from the lower courts when those courts

resolve disputes between our clients and federal

regulators. In a sense, one of the courts’ tools to

promote predictability and fairness is the interpretive

tool of stare decisis. But lower courts have misapplied

this tool to haphazardly employ another, more devious

tool to resolve disputes in favor of federal regulators

and against private parties: “Chevron deference.” The

lower courts’ invocation of “precedent” or stare decisis

as justifying their default, pro-regulator favoritism

defies the fairness baked into the Constitution and

does not lead to any meaningfully predictable results.

In other words, the lower courts’ uses of “Chevron

deference” defeat the laudable goals of stare decisis.

It is important for Mountain States and our

clients to have a clear understanding of how lower

courts will apply “Chevron deference” in cases like the

one before the Court. With a clear rule set forth by the

Court, our clients will be better able to argue against

agency interpretations of statutes with the

understanding that our arguments will be given

similar weight as those of the federal regulators we

are arguing against. Specifically, Mountain States

asks the Court to give clear guidance to the lower

courts that they must put “Chevron deference”—if it

survives as a “tool” at all—at the bottom of their

collective statutory-interpretation toolbox.

3

To secure these interests, Mountain States files

this brief urging this Court to reverse the holding of

the D.C. Circuit Court of Appeals.

SUMMARY OF THE ARGUMENT

This case involves the appropriateness of courts

engaging in “Chevron deference” when sitting in

judgment of administrative agencies’ interpretations

of congressional statutes. More specifically, this case

asks the Court whether Chevron should be overruled,

or at least whether the Court should instruct lower

courts that they must not reflexively defer to the

executive branch’s interpretation of a statute in any

given interpretation dispute against private parties.

Inevitably, such questions raise the specter of stare

decisis, and it is stare decisis with which this amicus

curiae brief is concerned.

The purpose of the stare decisis doctrine, which

has been an important concept in Anglo-American law

for hundreds of years, is to provide predictability and

fairness to litigants; to assure individuals that what

the law is does not shift with the whims of judges. A

respect for precedent is essential for a republic that

intends to be ruled by laws, rather than men.

The problem here is that “Chevron deference”

was not a decision made by this court. “Chevron

deference” is not, itself, a precedent, but merely a

method used by the Court to reach its decision in the

Chevron case. It is not a statement of what the law is,

so much as a canon of construction, one tool among

many that courts have at their disposal when called

to interpret the meaning of a federal statute.

4

This Court does not treat interpretive deference

regimes like the one applied in Chevron as precedents

owed stare decisis—indeed, “Chevron deference” itself

has been inconsistently applied, ignored, and

reformulated by various Justices of this Court over

the years, with even Chevron’s author refusing to

adopt a consistent approach to the doctrine. There is

very little predictability regarding how “Chevron

deference” is likely to be applied in any particular

case, and treating the doctrine as a precedent

requiring stare decisis has ironically done a profound

disservice to the principles of predictability and

fairness that stare decisis is intended to defend.

Mountain States is a non-profit legal foundation

that regularly represents farmers, ranchers,

recreationists, energy producers, and other private

parties who must deal with federal regulators every

day—particularly here in the West. Our clients often

find themselves in disputes with these regulators over

what federal statutes allow, require, and forbid, and

they need predictability to earn their livelihoods. For

example, imagine a cattle ranch using public land that

straddles a border both between two states and two

judicial circuits—that happens here in the West. On

one side of the ranch, courts reflexively defer to

agency interpretations of statutes, while on the other,

courts defer only as a last resort. Depending on how

various statutes such as the Endangered Species Act

or Clean Water Act are interpreted, the same activity

on one side of the ranch may be perfectly legal, while

on the other side of the ranch it’s a felony with

potential penalties including thousands of dollars per

day in fines or even prison time.

5

This Court should provide clear guidance to the

lower courts that they are not bound to use the

“Chevron deference” tool as a matter of stare decisis,

and that stare decisis applies only to what this Court

says the law is, not the process it used to get there in

a particular case. “Chevron deference,” to the extent

its use is appropriate at all, is only one tool at the

bottom of the statutory-interpretation toolbox, to be

used only after all traditional tools of statutory

construction are exhausted (as was done in Chevron

itself). Reflexively deferring to agencies is unfair to

the private parties entrusting their livelihoods to the

American legal system because in doing so, courts

place their thumbs on the scales in favor of federal

regulators who already possess every advantage.

Mountain States’ clients need real predictability of

Court guidance so that they can engage federal

regulators knowing that they have meaningful

recourse to an Article III court.

ARGUMENT

I.

STARE DECISIS DOES NOT APPLY TO

DEFERENCE

REGIMES

SUCH

AS

“CHEVRON DEFERENCE”

Stare decisis is a term that has been used in

American and English jurisprudence for over two

centuries and has been present as an idea even before

that. See, e.g., Ex parte Bollman, 8 U.S. 75, 87, 89, 93

(1807) (using the Latin term stare decisis and calling

it a “fundamental maxim”). William Blackstone

remarked on the idea of precedent in 1765 in his

commentaries:

6

For it is an established rule to abide by

former precedents, where the same points

come again in litigation; as well [1] to keep

the scale of justice even and steady, and

[2] not liable to waver [sic] with every new

judge’s opinion; as also because the law in

that case being solemnly declared and

determined, what before was uncertain, and

perhaps indifferent, is now become a

permanent rule, which it is not in the breast

of any subsequent judge to alter or vary

from, according to his private sentiments:

he being sworn to determine, not according

to his own private judgment, but according

to the known laws and customs of the land;

not delegated to pronounce a new law, but

to maintain and expound the old one.

Blackstone, William, 1 Commentaries 69 (3d ed. 1768)

(annotations and emphasis added).

Black’s Law Dictionary (11th ed. 2019) defines

stare decisis as “to stand by things decided. The

doctrine of precedent, under which a court must follow

earlier judicial decisions when the same points arise

again in litigation.” For example, in Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842,

866 (1984), after using many tools to discern the

meaning of the term “source” in the Clean Air Act, the

Court held that the federal Environmental Protection

Agency’s (EPA) definition of the term “source” was a

permissible construction of the statute. That’s what

the Court decided.

7

But this case is not about “stand[ing] by” the

Court’s determination of what a Clean Air Act

“source” is, see Chevron, 467 U.S. at 843 n.9 (“The

judiciary is the final authority on issues of statutory

construction”); Marbury v. Madison, 5 U.S. 137, 177

(1803) (“It is emphatically the province and duty of the

judicial department to say what the law is.”), but

whether the Court should provide clear guidance to

lower courts regarding when and (if ever) how to use

the reasoning that the Court used to reach its holding

in Chevron. That is, when and (if ever) how should

lower courts use so-called “Chevron deference” in

discharging their duties to interpret laws?

We urge the Court to provide clear direction to

the lower courts that “Chevron deference” itself is not

a matter of binding precedent warranting stare

decisis effect; instead, it is a statutory-interpretation

canon that a lower court should use in a relevant case

only after that court has exhausted all other

traditional means of determining what the law is,

Marbury, 5 U.S. at 177. And even then, only where its

interpretive weight supplies an answer that is clearly

better than the potential answers supplied by any

other interpretation canons that are relevant to the

issue before the court. See Chevron, 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.”); Brett

M. Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2145 (2016) (Kavanaugh)

(“[D]etermining the best reading of the statute is not

always easy. But we have tools to perform the task . .

. . Why layer on a whole separate inquiry – is the

8

statute clear or ambiguous? – that does not help

uncover the best reading . . . ?”).

“Chevron deference” was not a decision made by

the Court; instead, it was the way the Court came to

its decision in Chevron. “Chevron deference” is not a

precedent, it is a canon of construction. Kavanaugh

2150–54. This Court does not treat interpretive

deference regimes such as “Chevron deference” “as

matters of stare decisis.” Connor N. Raso & William

N. Eskridge, Jr., Chevron as a Canon, Not a Precedent:

An Empirical Study of What Motivates Justices in

Agency Deference Cases, 110 COLUM. L. REV. 1727,

1751, 1817 (2010) (Raso & Eskridge, Jr.). And it does

not warrant the lower courts’ “judicial abdication” of

their Marbury duties in favor of reflexive deference to

federal-agency arguments. See Buffington v.

McDonough, 143 S. Ct. 14, 16 (2022) (Gorsuch, J.,

dissenting from the denial of certiorari); Kisor v.

Wilkie, 139 S. Ct. 2400, 2425 (2019) (Gorsuch, J.,

concurring) (“we owe our colleagues on the lower

courts more candid and useful guidance than this”).

As can be discerned from its definition and from

Blackstone’s remarks, stare decisis has been used to

ensure fairness and predictability in the United

States legal system. When the Supreme Court says

what the law is, future cases on that same question of

statutory construction must be decided in accordance

with the precedent that was laid out unless the Court

has a compelling reason to deviate, which it then must

explain, and which then becomes binding precedent

for future Courts. Ramos v. Louisiana, 140 S. Ct.

1390, 1408 (2020) (Sotomayor, J., concurring). There

9

is an important distinction between precedents that

appear in this manner and “Chevron deference.”

Even though some Justices have advocated for

“Chevron deference” to be applied as precedent, e.g.,

Smith v. City of Jackson, Miss., 544 U.S. 228, 243–47

(2005) (Scalia, J., concurring), the doctrine itself is not

a precedent that the Supreme Court is bound to follow

in future cases. As explored further in Argument Part

III, infra, “Chevron deference” has not been treated as

precedent, even by its staunchest supporters, as there

are cases where it has not been adhered to, and not

overruled, and other cases where it likely could apply

but has not even been mentioned. See Raso &

Eskridge, Jr. 1760, Figure 2; see, e.g., City of Jackson,

Miss., 125 S. Ct. at 1539–46 (Stevens, J., plurality

opinion) (failing to cite or discuss Chevron); F.C.C. v.

Fox Television Stations, Inc., 556 U.S. 502, 515–16

(2009) (dealing with ambiguous statutory language

but failing to cite or mention Chevron); General

Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581,

600 (2004) (declining to apply “Chevron deference”

because “regular interpretive method” left no

ambiguity regarding the statute at issue). This would

not be permissible if “Chevron deference” were true

precedent subject to stare decisis.

“Chevron deference” has also not contributed to

uniformity or predictability in resolving disputes

between federal regulators and private parties. On

the contrary, different Justices have applied the

interpretive canon differently in a variety of cases

since the 1984 decision. See Raso & Eskridge, Jr.

1756, 1761. Deference regimes such as “Chevron

deference” are one way of reasoning through and

10

thinking about a case, but the way in which one

Justice develops his or her reasoning is not subject to

stare decisis, especially if that reasoning is later found

to be questionable or unworkable. See Payne v.

Tennessee, 501 U.S. 808, 827 (1991) (citing Smith v.

Allwright, 321 U.S. 649, 665 (1944)). Rather, this

Court and the lower courts are bound to follow

decisions in cases and established precedents.

II.

THE CHEVRON COURT DEFERRED TO

AGENCY INTERPRETATION AS A LASTDITCH INTERPRETIVE TOOL

In Chevron, this Court dealt with a regulation

created by the EPA that allowed states to treat all

pollution-emitting devices within the same industrial

grouping as though they were part of the same single

“bubble.” Chevron, 467 U.S. at 840. This “bubble

concept” was challenged as being unlawful. Id. On

appeal, the Court faced the issue of whether Congress

allowed the EPA and the States to apply this “bubble

concept.” Id. In the opinion authored by Justice

Stevens, the Court laid out stated what is now

referred to as “Chevron deference,” but it was not

applied in the way that many courts use it today. Id.

at 838; cf. Raso & Eskridge, Jr. 1749 (“Because it lacks

the resources to review more than a small fraction of

cases, the Court must delegate to lower courts. The

lower courts may exploit this dynamic to skirt

precedent in favor of their own preferences”).

In Chevron, Justice Stevens applied his

statutory-interpretation method: first, “employ [the]

traditional tools of statutory construction” as all

courts must do, see Marbury, 5 U.S. at 177, to divine

11

the meaning of the statute. 467 U.S. at 842–43, 843

n.9. Second, and only if after exhausting all the

“traditional tools” the Court can divine no meaning of

the statute, the Court may lean on its other canons of

construction. Id. at 843, 843 n.9.

There is nothing remarkable about Justice

Stevens’ approach. Justice Stevens himself seems not

to have treated the “Chevron doctrine” in such a way.

See Raso & Eskridge, Jr. 1732 (“Indeed, Justice

Stevens’s plurality opinion in City of Jackson failed to

cite or discuss Chevron (an opinion Justice Stevens

himself wrote), a move virtually unthinkable if

Chevron’s holding were binding as a matter of stare

decisis. By not citing Chevron and by treating

deference as a ‘plus’ factor for the result reached in his

opinion, Justice Stevens seemed to treat agency

deference doctrine as a canon of statutory

construction, rather than as binding precedent.”)

(citing City of Jackson, 544 U.S at 240–43). And courts

that find themselves shrugging their collective

shoulders as to statutory interpretation employ lastditch interpretive canons all the time, including in the

face of textual ambiguities. See Kavanaugh, supra,

2135 n.87, 2145–56.

But context is important, especially when

dealing with questions arising from congressional

delegations of authority to the executive branch, the

judicial branch’s review of the same, and the

separation of powers. See Biden v. Nebraska, 600 U.S.

__ (2023) (Barrett, J., concurring) (explaining that the

“major questions” deference canon, “emphasize[s] the

importance of context when a court interprets a

delegation to an administrative agency.”); see also Id.

12

at 26 n.3 (Kagan, J., dissenting) (quoting the

“importance of context” when assessing Congress’s

delegations of authority to the executive branch)

(emphasis in originals).

And Chevron’s context was important—it

introduced an opportunity to add another

consideration to the last-ditch interpretive canons

when a court—there, the Court—really could not

figure out what Congress meant using the “traditional

tools” of construction. Chevron, 467 U.S. at 843 n.9;

Kavanaugh 2153 n. 175; Raso & Eskridge, Jr. 1732.

In that context, why not consider the interpretive

opinion of the agency that Congress charged with

implementation of the statute? Chevron, 467 U.S. at

843 n.9; Ryan D. Doerfler, How Clear is “Clear?”, 109

Va. L. Rev. 651, 663 (2023) (Doerfler).

Put simply, Justice Stevens merely recognized

an added tool for the Court’s toolbox when

interpreting a statute in the context of

administrative-delegation questions when the

“traditional tools” of statutory interpretation did not

fit the job. Chevron, 467 U.S. at 843 n.9.

Justice Stevens did not instruct the lower courts

to reflexively put their thumbs on the scales in favor

of administrative-agency statutory interpretations.

Raso & Eskridge, Jr. 1732; Kavanaugh 2135;

Buffington, 143 S. Ct. at 16 (Gorsuch, J., dissenting

from the denial of certiorari). Justice Stevens did not

instruct the lower courts to seek out ambiguities to

implement their policy choices, Kavanaugh 2140;

Raso & Eskridge, Jr. 1727, and did not authorize

“judicial abdication” of the courts’ collective duty to

13

say what the law is. Buffington, 143 S. Ct. at 18–19;

cf. Marbury, 5 U.S. at 177.

The lower courts are not “‘bound by . . .

administrative construction[s]’ of the law and those

constructions may ‘be taken into account only to the

extent that [they are] supported by valid reasons.’”

Buffington, 143 S. Ct. at 18 (quoting Burnet v. Chicago

Portrait Co., 285 U.S. 1, 16 (1932) (Gorsuch, J.,

dissenting from the denial of certiorari)). True,

sometimes Congress instructs an administrative

agency to decide, for example, what is “reasonable.”

E.g., 47 U.S.C.A. § 303(q) (giving authority to the

Federal Communications Commission to require the

painting or illumination of radio towers if the towers

are a menace to air navigation or if there is a

reasonable possibility that they may be a menace to

air navigation). And that might be a valid reason for

a court to defer to—or at least consider—the agency’s

determination of what is reasonable. Kavanaugh

2153. But that is nothing new—it is a use of the

“traditional tools” in the toolbox for statutory

interpretation, and it is not “Chevron deference.” Id.

at 2145 (“To be sure, determining the best reading of

the statute is not always easy. But we have tools to

perform the task and communicate it to the parties

and public in our opinion”); Buffington, 143 S. Ct. at

17.

Chevron, where the Court applied this same

“traditional” approach, is notable only for recognizing

another last-ditch tool of interpretation when the

“traditional tools” did not get the job done. The Court

looked at the statutory language at issue and the

legislative history (another last-ditch interpretive

14

tool, see Kavanaugh 2135) prior to turning to the

EPA’s interpretation of the statute. See Chevron, 467

U.S. at 859–64. After exhausting the traditional tools,

the Court said and found, “We agree with the Court of

Appeals that Congress did not have a specific

intention on the applicability of the bubble concept in

these cases and conclude that the EPA’s use of that

concept here is a reasonable choice for an agency to

make.” Id. at 845 (emphasis added). Only after the

Court decided that the specific question at issue could

not be answered by using other principles of statutory

construction did it then look at the agency’s

interpretation as evidence of statute’s meaning.

Doerfler 663.

The Court’s recognition of the tool we call

“Chevron deference” is not precedent that requires

lower courts to reflexively defer to administrative

agencies. Instead, the idea of deferring to the agency

in the manner done in Chevron should be seen simply

as an added interpretive canon such as the rule of

lenity; and it belongs lower in the toolbox than tools

like lenity, which at least favor the governed over the

governors. See Kavanaugh 2135. The way that the

Justices on the Court reason through the opinion is

not precedent and does not need to be deferred to as

such for the principles of stare decisis to be upheld.

Ramos, 140 S. Ct. at 1408.

15

III. THE

COURT

HAS

NOT

APPLIED

“CHEVRON

DEFERENCE”

IN

THE

UNIFORM MANNER ACCORDED TO TRUE

PRECEDENT

The Court’s obligation in this case to give

guidance to the lower courts is doubly important,

because whether “Chevron deference” is entitled to

“double canon” deference as stare decisis has not

always been clear. See, e.g., City of Jackson, 544 U.S.

at 243–44 (Scalia, J., concurring) (saying “the EEOC’s

reasonable view that the ADEA authorizes disparateimpact claims is deserving of deference”). In practice,

“Chevron deference” has often been treated as canon

and not as precedent. See, e.g., id. at 239 (failing to

cite or even discuss Chevron); Solid Waste Agency of

Northern Cook County v. U.S. Army Corps. Of Eng’rs,

531 U.S. 159 (2001) (SWANCC) (“We find § 404(a) to

be clear, but even were we to agree with respondents,

we would not extend Chevron deference here”). But

the Court has not been consistent.

In City of Jackson, the Court dealt with the issue

of salary increases for younger public safety officers in

the city of Jackson, Mississippi. 544 U.S. at 230. Older

officers in the city challenged the policy as violating

the Age Discrimination in Employment Act (ADEA).

Id. The main issue the Court dealt with was whether

the ADEA authorized recovery in “disparate impact”

cases. Id. at 232. In reasoning through the opinion,

the Court found that the ADEA did allow for recovery

in disparate-impact cases, contrary to the way the

EEOC interpreted the statute. City of Jackson, 544

U.S. at 230, 232. Had the Court applied “Chevron

deference,” as Justice Scalia asserts in his

16

concurrence would have been the right thing to do,

then the Court would have concluded that the ADEA

does not allow for recovery in disparate-impact cases.

Id. at 244–45.

But Justice Stevens—again, Chevron’s author—

used the EEOC’s interpretation of the statute in the

same way one would employ it as a “bottom of the

toolbox” canon of construction. The agency’s

interpretation of the statute was considered only after

the Court looked at the statutory text, as presented in

an earlier case, and language from a “reasonable

factors other than age” provision. Id. at 233–40. Thus,

the agency’s interpretation was a factor for Justice

Stevens, that he used in making his ultimate

determination, but he did not reflexively defer to the

agency’s interpretation. Id. In contrast, Justice Scalia

seemed to argue for a reflexive elevation of “Chevron

deference” over the traditional tools as a matter of

stare decisis. Id. at 243–47 (Scalia, J., concurring); see

also Raso & Eskridge, Jr. 1737–38. So, it is no wonder

that lower courts are unclear about the role “Chevron

deference” should play—or worse, follow Justice

Scalia’s lead in elevating the canon to a pre-textual

decision tool. Doerfler 665. Compare that again with

Justice

O’Connor,

who

gave

the

EEOC’s

interpretation no weight whatsoever because it

interpreted a part of the statute that, in her view, was

not at issue in the case. Id. at 262–67 (O’Connor, J.,

concurring). This case illustrates the different ways

that “Chevron deference” can be viewed and applied,

and the confusion that it has created even on this

Court.

17

As another example, in SWANCC, the Court

dealt with a challenge to the United States Army

Corps of Engineers’ (the Corps) interpretation that, in

accordance with § 404(a) of the Clean Water Act

(CWA), the agency had jurisdiction over abandoned

sand and gravel pits because, according to the agency,

those features were included under the definition of

“navigable waters” subject to federal jurisdiction.

SWANCC, 531 U.S. at 163. But the Court held that

the Corps’ rule that extended the definition of

“navigable waters” under the CWA to include

intrastate waters used as habitat for migratory birds

exceeded the authority granted to the Corps under the

CWA. Id. at 162. For present purposes, the important

analysis is how much (if at all) the Court deferred to

the Corps, and at what point.

In the case, the Corps argued that regardless of

the original intent of the CWA in 1972, Congress

approved a regulatorily pliable and more expansive

definition of “navigable waters,” which the Corps

adopted in 1977, by later not passing a bill which

would have overturned the Corps’ regulation and

assumed extension of regulatory jurisdiction. Id. at

168–69. In rejecting this argument, the Court did not

give so much weight to congressional acquiescence to

administrative interpretations of statutes—it took

more care. Id. at 169. The Court also said that the

respondents would “face a difficult task in overcoming

the plain text and import of § 404(a).” Id. at 170. It

was argued that § 404(g) of the CWA, and its use of

the term “other . . . waters” must incorporate the

Corps’ 1977 regulation. Id. at 171. The Court was not

persuaded by this argument and, though it declined to

determine the exact meaning of § 404(g), it stated that

18

Ҥ 404(g) does not conclusively determine the

construction to be placed on the use of the term

‘waters’ elsewhere in the Act . . . .” Id. (quoting U.S. v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 138 n.11

(1985)). With both of their other arguments failing,

the respondents in SWANCC contended that, at the

very least, Congress did not clearly define § 404(a)’s

scope, and therefore did not address the precise

question at issue in the case, therefore invoking

“Chevron deference.” Id. at 172.

But the Court did not reflexively defer to the

agency in SWANCC—in essence, it refused to pick up

“Chevron deference” as the first tool in its toolbox—

and stated instead that § 404(a) had a clear meaning,

but even if it didn’t, the Court would not extend

“Chevron deference.” Id. Justice Stevens this time

wrote a dissent in SWANCC in which he criticized the

majority for not applying “Chevron deference.” Id. at

191 (Stevens, J., dissenting). Unlike the opinion he

wrote in City of Jackson, Justice Stevens’ dissent in

SWANCC seems to be advocating for reflexive

application of “Chevron deference” to the facts of

SWANCC, instead of using it as a canon. Id. It’s no

wonder there is confusion.

Over the course of the past four decades, the

Justices seem to have applied “Chevron deference”

differently in the various agency-deference cases.

Raso & Eskridge, Jr. 1761. The only uniformity that

can be discerned over this period is that it’s not clear

whether any Justice adheres to, or refrains from

adhering to, “Chevron deference” consistently. Id.

Rather, a variety of factors seem to play a role in how

and when Justices will apply “Chevron deference”—or

19

maybe the Court’s and the lower courts’ applications

of “Chevron deference” is truly haphazard. Either

way, the Court should give clear guidance that the

lower courts should not veil their haphazard choices

by reference to stare decisis—it is the last tool in the

toolbox.

Again, these examples show a lack of uniformity

in the way that “Chevron deference” has been applied

by the Supreme Court. In some decisions, the Court

sought to establish a more concrete rule for the

application of “Chevron deference.” See, e.g., U.S. v.

Mead Corp., 533 U.S. 218, 236 (2001). Mead, however,

did not have the intended effect of simplifying the

process. Following Mead, it seems like lower courts

were even more confused about how to apply “Chevron

deference,” as an interpretive tool, than they were

before. See Lisa Schultz Bressman, How Mead Has

Muddled Judicial Review of Agency Action, 58 VAND.

L. REV. 1443, 1491–92 (2005) (analyzing how lower

courts have been confused by Mead). What the Court

tried to do in Mead is what the lower courts need, even

if the proposal in Mead is not exactly consistent with

the prescription we offer in this brief.

In one instance, the Court has set out clear rules

for when to apply another agency deference regime.

See Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019)

(limiting the scope of Auer deference to cases where

all “traditional tools” of construction are exhausted

and stating that “a court must consider the text,

structure, history, and purpose of a regulation before

resorting to deference”).

20

Given the confusion and varied application of

“Chevron deference” since the 1984 Chevron decision,

we are asking the Court to establish a concrete rule

for deference to agencies in cases of statutory

interpretation, in the same spirit that the Court

established a rule for applying “Auer deference” in

Kisor. We further urge the Court to make it clear that

“Chevron deference” is a last-ditch tool only available

to a court that really cannot make “heads or tails” of a

statute.

IV. THE COURT SHOULD INSTRUCT LOWER

COURTS THAT THEY SHOULD ONLY USE

“CHEVRON DEFERENCE” AS A LASTDITCH INTERPRETIVE CANON

The question in this case is not “what is a

‘stationary source,’” Chevron, 487 U.S. at 841, but

whether the Court should provide clear guidance to

lower courts regarding when (if ever) and how to use

the reasoning that the Court used to reach its holding

in Chevron.

As Justice Thomas has said:

Although the Court has appeared to treat

our agency deference regimes as precedents

entitled to stare decisis effect, some scholars

have noted that they might instead be

classified as interpretive tools. See, e.g., C.

NELSON, STATUTORY INTERPRETATION 701

(2011). Such tools might not be entitled to

such effect. Because resolution of that issue

is not necessary to my conclusion here, I

leave it for another day.

21

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 114

n.1 (2015) (Thomas, J., concurring).

This case offers an opportunity for the Court to

offer clear direction to the lower courts that “Chevron

deference” itself is not a matter of binding precedent

warranting stare decisis effect; instead, it is a

statutory-interpretation canon that a lower court

should use in a relevant case only after that court has

exhausted all other traditional means of determining

what the law is. See Marbury, 5 U.S. at 177. And even

then, a lower court should only use that canon where

its interpretive weight supplies an answer that is

clearly better than the potential answers supplied by

any other interpretation canon that are relevant to

the issue before the court. See Chevron, 487 U.S. at

842–43 (saying that, after reviewing the legislation

and legislative history, the EPA’s use of the bubble

concept was reasonable); see also, Kavanaugh 2144.

Deference regimes and other tools of statutory

interpretation do not work well as binding precedent.

Raso & Eskridge, Jr. 1807–08. Simply put, this is

because Justices do not apply deference regimes or

other tools of statutory interpretation in a consistent

manner. See Id. at 1787–90.

If predictability and some measure of fairness

are the goals, as the principles of stare decisis suggest,

then this Court needs to take this opportunity to

define clear boundaries for when “Chevron deference”

should and should not be applied to a particular case.

As of now, courts seem to be conflating the

precedential holding of Chevron with the nonprecedential method that Justice Stevens recognized

22

in his opinion, where he directed lower courts to add

another tool to their toolboxes only after the

“traditional tools” left them shrugging their

shoulders—but Justice Stevens still demanded that

the lower courts do the work the Constitution

requires. See Pereira v. Sessions, 138 S. Ct. 2105, 2120

(2018) (Kennedy, J., concurring) (“This analysis

suggests an abdication of the Judiciary’s proper role

in interpreting federal statutes); Buffington, 143 S.

Ct. at 16.

But as we see it, the lower courts are using

“Chevron deference” to avoid the hard work of

statutory interpretation in favor of demurring to

whatever the agency says. Id. As Justice Thomas has

noted, the power given to agencies through “Chevron

deference” offers a chance for the executive branch to

usurp the authority of the judicial branch. See

Baldwin v. United States, 140 S. Ct. 690, 691–92

(2020) (Thomas, J., dissenting from denial of

certiorari). Of course, it also usurps the legislative

branch. The job of courts is to interpret statutes and

say what the law is, not immediately go to what the

agency thinks and then decide whether that is

reasonable. See Marbury, 5 U.S. at 177.

On this point, “Chevron deference” should be

used, if at all, only as an added tool of statutory

interpretation. In this way agency interpretations can

be relied upon as evidence of congressional intent.

This sort of reliance, though, cannot happen

reflexively. The agency’s interpretation can only be

used after all other traditional tools and other

potentially relevant tools have been used to determine

the meaning of the statute at issue. And of course, the

23

context drives this, because Justice Stevens was

responding to a somewhat new issue as the

“administrative state” increasingly was “touch[ing]

almost every aspect of our daily life.” Buffington, 143

S. Ct. at 21 (citing Free Enterprise Fund v. Public

Company Accounting Oversight Bd., 561 U.S. 477, 499

(2010)).

This case offers a unique opportunity for this

Court to lay out clear rules for the interpretive process

at the lower courts when it comes to cases where the

administrative agencies are against private entities.

Providing clear guidance to the lower courts on fixing

statutory interpretation can return us to a place of

uniformity where, regardless of who is doing the

judging, the process will at least nearly be the same,

uninfluenced by political fallout of the ultimate

outcome of a case. See Kavanaugh 2121. For Mountain

States and its clients, this area of the law is in

desperate need of a defined “strike zone.” Id. And of

course, we respectfully ask the Court to set the “strike

zone” as we have laid it out in this brief.

CONCLUSION

For the foregoing reasons, this Court should

declare that “Chevron deference” isn’t a tool to be

reflexively applied to agency-deference cases. Rather,

we ask the Court to provide clear direction to the

lower courts that “Chevron deference” itself is not a

matter of binding precedent warranting stare decisis

effect; instead, it is a statutory-interpretation canon

that a lower court should use—if at all—in a relevant

case only after that court has exhausted all other

traditional means of determining what the law is, and

24

even then, only where its interpretive weight supplies

an answer that is clearly better than the potential

answers supplied by any other interpretation canons

that are relevant to the issue before the court.

Respectfully submitted,

Ivan L. London

Counsel of Record

David C. McDonald

MOUNTAIN STATES LEGAL

FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

July 21, 2023

Attorneys for Amicus

Curiae