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

No. 22-451

In the Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

v.

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF EIGHT NATIONAL BUSINESS

ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

ELLEN STEEN

TRAVIS CUSHMAN

American Farm Bureau

Federation

600 Maryland Ave SW

Suite 1000W

Washington, DC 20024

TIMOTHY S. BISHOP

Counsel of Record

BRETT E. LEGNER

Mayer Brown LLP

71 South Wacker Drive

Chicago, Illinois 60606

(312) 782-0600

tbishop@mayerbrown.com

Counsel for Amici Curiae

Additional Counsel Listed on Signature Page

QUESTION PRESENTED

Amici address the following question:

Whether the Court should overrule Chevron.

ii

TABLE OF CONTENTS

Page

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

INTERESTS OF THE AMICI CURIAE .................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ......................................................... 2

ARGUMENT .............................................................. 8

I.

CHEVRON IS IRRECONCILABLE

WITH JURISPRUDENTIAL HISTORY,

THE CONSTITUTIONAL DESIGN,

AND THE ADMINISTRATIVE PROCEDURE ACT ...................................................... 8

A.

Chevron is not supported by a

history of broad judicial deference

to executive interpretation of ambiguous legislative acts. ........................ 9

B.

Chevron is irreconcilable with the

allocation of power between the

branches of government...................... 12

C.

Chevron is irreconcilable with the

APA. ..................................................... 17

II.

LOWER COURTS ARE HARMING

THE REGULATED COMMUNITY BY

APPLYING CHEVRON TO REACH INCORRECT DECISIONS. ............................... 18

III. AGENCY DECISIONS CAN BE ACCORDED THEIR PROPER WEIGHT

THROUGH NORMAL STATUTORY

CONSTRUCTION PRINCIPLES. ................ 25

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Aluminum Co. of Am. v. Central Lincoln

Peoples' Util. Dist.,

467 U. S. 380 (1984) ............................................. 25

Am. Lung Ass’n v. EPA,

985 F.3d 914 (D.C. Cir. 2021), rev’d

on other grounds, West Virginia v.

EPA, 142 S. Ct. 2587 (2022) .................................. 7

Baldwin v. United States,

140 S. Ct. 690 (2020) ............................ 9, 10, 11, 14

Bartenwerfer v. Buckley,

143 S. Ct. 665 (2023) .............................................. 7

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ........................................ 4, 8

BNSF Railway Co. v. Loos,

139 S. Ct. 893 (2019) ............................................ 14

Buffington v. McDonough,

143 S. Ct. 14 (2022) ............................... 4, 12, 16-19

Chevron USA, Inc. v. Nat. Res. Def.

Council,

467 U.S. 837 (1984) ...........................................1-26

Cnty. of Maui, Hawaii v. Hawaii

Wildlife Fund,

140 S. Ct. 1462 (2020) ............................................ 4

iv

Dep’t of Transp. v. Ass’n of Am.

Railroads,

575 U.S. 43 (2015) ................................................ 15

Edwards’ Lessee v. Darby,

25 U.S. (12 Wheat.) 206 (1827) ............ 9, 10, 11, 26

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ........................................ 23, 25

Foster v. U.S. Dep’t of Ag.,

68 F.4th 372 (8th Cir. 2023) .......................... 23, 24

Groff v. DeJoy,

143 S. Ct. 2279 (2023) .......................................... 24

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives,

140 S. Ct. 789 (2020) .......................................... 5, 6

Gundy v. United States,

139 S. Ct. 2116 (2019) .................................... 15, 17

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .............................. 5

HollyFrontier Cheyenne Refining, LLC

v. Renewable Fuels Ass’n,

141 S. Ct. 2172 (2021) ............................................ 3

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .......................... 7, 19, 25, 26

Little Sisters of the Poor Saints Peter

and Paul Home v. Pennsylvania,

140 S. Ct. 2367 (2020) .................................... 16, 17

v

Mallory v. Norfolk Southern Railway

Co.,

143 S. Ct. 2028 (2023) ............................................ 4

Marbury v. Madison,

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

Markle Interests, LLC v. U.S. Fish &

Wildlife Service,

827 F.3d 452 (5th Cir. 2016) ................................ 20

Merritt v. Cameron,

137 U.S. 542 (1890) .............................................. 11

Michigan v. EPA,

576 U.S. 743 (2015) ........................................ 13, 23

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 16

Morton v. Ruiz,

415 U.S. 199 (1974) .............................................. 15

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Automobile Ins. Co.,

463 U.S. 29 (1983) ................................................ 23

Murray Energy Corp. v. EPA,

No. 15-3751 (6th Cir. 2017) ................................ 22

National Ass’n of Home Builders v.

EPA,

682 F.3d 1032 (D.C. Cir. 2012) .............................. 5

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) ............................................ 10

vi

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021) .......................................... 21

Osborn v. Bank of United States,

22 U.S. (9 Wheat.) 738 (1824) .............................. 13

Pereira v. Sessions,

138 S. Ct. 2105 (2018) .................................. 6, 8, 18

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) .......................................... 13, 18

Rapanos v. United States,

547 U.S. 715 (2006) .............................................. 22

Rodriguez de Quijas v.

Shearson/American Express, Inc.,

490 U. S. 477 (1989) ............................................... 4

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .......................................... 15

Sackett v. EPA,

143 S. Ct. 1322 (2023) ...................... 5, 7, 12, 14, 22

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) .......................................... 13

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) .............................................. 25

Smith v. Berryhill,

139 S. Ct. 1765 (2019) .......................................... 15

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Engineers,

531 U.S. 159 (2001) .............................................. 19

vii

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Engineers,

191 F.3d 845 (7th Cir. 1999) .......................... 19, 21

Talk Am., Inc. v. Michigan Bell Tel. Co.,

564 U.S. 50 (2011) ................................................ 21

Texas v. EPA,

No. 3:23-cv-17 (S.D. Tex. 2023) ............................. 5

The City of Panama, 101 U.S. 453

(1879) .................................................................... 10

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ................................................ 24

United States v. Riverside Bayview

Homes, Inc.,

474 U.S. 121 (1985) .............................................. 21

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ........................................ 7, 8

Weyerhaeuser v. U.S Fish & Wildlife

Service,

139 S. Ct. 361 (2018) ............................................ 20

White Stallion Energy Center, LLC v.

EPA,

748 F.3d 1222 (D.C. Cir. 2014) ............................ 23

Wisconsin Central Ltd. v. United States,

138 S. Ct. 2067 (2018) .......................................... 26

Constitution, Statutes, and Regulations

U.S. Const., Article I, § 1........................................... 13

viii

U.S. Const., Article II, § 1 ......................................... 13

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

U.S. Const. Art. IV, § 4.............................................. 15

5 U.S.C. § 706 ............................................................ 17

16 U.S.C. § 3822(a)(4) ............................................... 24

Navigable Waters Protection Rule, 85

Fed. Reg. 22250 (Apr. 21, 2020) .......................... 14

Revised Definition of “Waters of the

United States,” 88 Fed. Reg. 3004

(Jan. 18, 2023) ...................................................... 14

Other Authorities

Aditya Bamzai, The Origins Of Judicial

Deference To Executive

Interpretation, 126 Yale L.J. 908

(2017) ........................................................ 10, 11, 17

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts, 116

Mich. L. Rev. 1 (2017) ............................................ 6

J. Beerman, End the Failed Chevron

Experiment Now: How Chevron Has

Failed and Why It Can and Should

Be Overruled, 42 Conn. L. Rev. 779

(2010) .................................................................... 18

ix

John Dickinson, Administrative

Procedure Act: Scope and Grounds of

Broadened Judicial Review, 33

A.B.A. J. 434 (1947) ............................................. 17

The Federalist No. 37 (Madison) .............................. 13

The Federalist No. 78 (Hamilton)............................. 13

Philip Hamburger, Chevron Bias, 84

Geo. Wash. L. Rev. 1187 (2016). .......................... 12

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev.

2118 (2016) ............................................................. 5

Christopher J. Walker, Legislating in

the Shadows, 165 U. Pa. L. Rev.

1377 (2017) ........................................................... 16

The Statistics, 136 Harv. L. Rev. 500

(2022) ...................................................................... 6

BRIEF OF EIGHT NATIONAL BUSINESS ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTERESTS OF THE AMICI CURIAE

Amici are the American Farm Bureau Federation,

American Coatings Association, American Forest &

Paper Association, Agricultural Retailers Association,

National Association of Home Builders, National Cattlemen’s Beef Association, National Pork Producer’s

Council, and the North American Meat Institute.1

Amici’s members grow, process, and sell plentiful and

affordable meat, produce, and fiber that feed and

clothe Americans, manufacture sustainable paper and

wood products from renewable resources that are used

every day by millions of people, build the homes that

house our population, and manufacture paint and

coatings used throughout our economy.2

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici, their members, and their counsel made a monetary

contribution to its preparation or submission.

1

2 Each amicus advocates for regulatory standards and policies

that enable the success of the industry members that they represent. See American Farm Bureau Federation https://

www.fb.org (AFBF is the “voice of agriculture” formed to represent farm and ranch families); Agricultural Retailers Association, https://www.aradc.org (ARA “unites its members and

their interests to advocate and educate on their behalf, provide

services to improve their businesses, and preserve their freedom

to operate and innovate, ensuring a safe and plentiful food supply for all”); American Coatings Association, https://

www.paint.org (“ACA engages on legislative, regulatory and judicial issues at the federal, state and local levels to represent and

advocate for the U.S. paint and coatings industry”); American

2

Amici’s members are subject to regulation by federal agencies in virtually every aspect of their businesses. They devote enormous resources to monitoring and complying with rules and regulations governing labor and employment, product safety, consumer

rights, land use, the environment, trade, and a host of

other areas that reach into every nook and cranny of

their businesses. Amici assist their members by commenting on proposed federal rules, and often by litigating when those rules exceed the authority of the

agency involved. Amici believe that their decades of

experience engaging with the federal rule-making and

rule-enforcing bureaucracy on behalf of their members, before agencies and Congress and in the courts,

will assist this Court in resolving this important case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

As petitioners’ Question Presented suggests, this

case could be decided within the Chevron framework

Forest & Paper Association, https://afandpa.org/afpa-mission-and-vision (AF&PA advances “a sustainable U.S. pulp, paper, packaging and wood products manufacturing industry

through fact-based public policy and marketplace advocacy”);

National Association of Home Builders, https://www.

nahb.org (NAHB advocates on the “key issues that must be addressed to ensure a robust housing market”); National Cattlemen’s Beef Association, https://www.ncba.org/about (“NCBA

is a producer-directed organization focused on industry advocacy, promotion, education and research”); National Pork Producers Council, http://nppc.org/about-us (NPPC is the global

voice for the Nation’s 60,000 pork producers with the mission to

“fight[] for reasonable legislation and regulations” that protect

the livelihood of pork producers); North American Meat Institute, https://www.meatinstitute.org (NAMI advocates for member “companies that process 95 percent of beef, pork, veal and 70

percent of turkey products in the US and their suppliers”).

3

on the narrow and unexceptional basis that congressional silence concerning powers expressly granted

elsewhere in the statute, but not in the relevant provision, does not constitute an ambiguity requiring judicial deference to an agency interpretation. Rather,

that silence plainly indicates that Congress did not intend to grant those powers.

Amici urge this Court to go further and to take

this opportunity to overrule Chevron. Chevron deference lacks a historical grounding, violates the separation of powers doctrine, is inconsistent with the Administrative Procedure Act, and has in practice led to

an unwarranted expansion of bureaucratic power beyond anything authorized by Congress. A decisive

overruling of Chevron is necessary because that precedent’s current state of limbo causes substantial confusion and harm that only this Court can bring to an

end. In this brief, we give examples of that harm as

illustrated by recent decisions.

This Court’s practice in recent years of deciding

cases involving challenges to agency regulations or interpretations without any discussion of the Chevron

framework3 has proved unsatisfactory, plunging

courts, counsel, and the regulated community into a

twilight zone of uncertainty. On the one hand, this

Court’s silence leaves lower courts bound by Chevron,

at least in theory. As this Court recently explained,

“‘[i]f a precedent of this Court has direct application in

a case,’ * * * a lower court ‘should follow the case

3 See, e.g., HollyFrontier Cheyenne Refining, LLC v. Renewable

Fuels Ass’n, 141 S. Ct. 2172, 2176-2181 (2021) (examining meaning of the term “extension” in provision of Clean Air Act allowing

small refineries to petition EPA for extension of hardship exemption from renewable fuel program without discussion of Chevron

or deference to EPA’s interpretation).

4

which directly controls, leaving to this Court the prerogative of overruling its own decisions,’ * * * even if

the lower court thinks the precedent is in tension with

‘some other line of decisions.’” Mallory v. Norfolk

Southern Railway Co., 143 S. Ct. 2028, 2038 (2023),

quoting Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U. S. 477, 484 (1989). On the other

hand, members of this Court4—and the Court itself by

not relying on Chevron—have given enough indicators

that Chevron’s end is near that some lower court

judges decide regulatory cases without reference to

Chevron. Some courts of appeals, like the D.C. Circuit,

often adhere to Chevron, other circuits less so; some

panels divide over that issue; and some courts decide

cases relying on Chevron, only to be reversed by this

Court in an opinion that does not discuss Chevron.

From a practical litigation perspective, this is a

strange and unsatisfactory situation. Sophisticated

counsel in this Court generally avoid Chevron arguments. See, e.g., U.S. Br., Biden v. Nebraska, 143 S.

Ct. 2355 (2023) (No. 22-506) (Jan. 4, 2023) (arguing

for broad agency authority under a statutory grant of

power to “waive or modify” student loan programs

without once citing Chevron); Biden v. Nebraska, 143

S. Ct. 2355 (2023) (ruling on that issue without citing

Chevron); Cnty. of Maui, Hawaii v. Hawaii Wildlife

Fund, 140 S. Ct. 1462, 1474 (2020) (noting that “[n]either the Solicitor General nor any party has asked us

to give what the Court has referred to as Chevron def-

4 E.g., Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (“No

measure of silence (on this Court’s part) and no number of separate writings (on my part and so many others) will protect [regulated parties]. At this late hour, the whole [Chevron] project deserves a tombstone no one can miss.”) (Gorsuch, J., dissenting

from the denial of certiorari).

5

erence to EPA’s interpretation of the statute”). But litigants in the lower courts must continue to present

their cases using the Chevron framework. See, e.g.,

U.S. Br., at 32, Texas v. EPA, No. 3:23-cv-17 (S.D. Tex.

Mar. 4, 2023) (Dkt. 40) (arguing for Chevron deference

to the “waters of the United States” rule); cf. Sackett

v. EPA, 143 S. Ct. 1322 (2023) (rejecting agency interpretation of “waters of the United States” without citing Chevron). Litigation would be far more coherent

and efficient if this Court laid down a clear position on

Chevron deference rather than leave the lower courts

and parties to guess at the precedent’s current status.

The practical implications for amici’s members

are far worse than simply not knowing what arguments to make in a brief. The regulated community

should not be “required to guess whether [a] statute

will be declared ‘ambiguous’ (courts often disagree on

what qualifies); and required to guess (again) whether

an agency’s interpretation will be deemed ‘reasonable’”—guesses on which substantial investments and

owners’ and employees’ livelihoods may depend.

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

(10th Cir. 2016) (Gorsuch, J., concurring); see also

Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118, 2152-2154 (2016).

This problem is all the more severe because “these

days it sometimes seems agencies change their statutory interpretations almost as often as elections

change administrations.” Guedes v. Bureau of Alcohol,

Tobacco, Firearms & Explosives, 140 S. Ct. 789, 790

(2020) (Gorsuch, J., statement on denial of certiorari);

see, e.g., National Ass’n of Home Builders v. EPA, 682

F.3d 1032, 1043 (D.C. Cir. 2012) (upholding under

Chevron an EPA lead paint rule that contradicted the

6

prior rule where no more had changed than “the inauguration of a new President and the confirmation of a

new EPA Administrator”).

“How, in all this, can ordinary citizens be expected to keep up * * * [a]nd why should courts,

charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such

bureaucratic pirouetting?” Guedes, 140 S. Ct. at 790

(Gorsuch, J., statement on denial of certiorari). Regulated entities deserve a clear decision overruling

Chevron, which will assist them in making predictions

about litigation outcomes and, still more important,

curtail adventurous agency actions of the sort encouraged by a profligate doctrine of deference.

There is no doubt that Chevron distorts the results of litigation. That doctrine puts a heavy thumb

on the scale on the side of agencies when a less constrained judicial inquiry would favor the challengers—as reversals by this Court clearly attest. Chevron

incentivizes a finding of statutory ambiguity, rather

than a deep inquiry into the meaning of statutory language. See Pereira v. Sessions,138 S. Ct. 2105, 2120

(2018) (Kennedy, J., concurring). And that bias to find

ambiguity in a statutory provision in order to apply

Chevron deference is well documented: courts of appeals applying Chevron concluded that the statute

was ambiguous 70% of the time, and in 93.8% of those

cases upheld agency interpretations. Kent Barnett &

Christopher J. Walker, Chevron in the Circuit Courts,

116 Mich. L. Rev. 1, 32-34 (2017). The result is that

truly outlandish statutory interpretations that vastly

expand agency authority over amici’s members are

upheld by lower courts—and not every one of those decisions can be corrected by this Court. See The Statistics, 136 Harv. L. Rev. 500, 508 (2022) (during the

7

2021 Term, this Court granted review in only 74 cases

of 5104 petitions acted upon).

Chevron deference also is an unnecessary doctrine. Just as this Court’s focus in statutory cases is

always on statutory language, Bartenwerfer v. Buckley, 143 S. Ct. 665, 674-675 (2023), that also should be

the focus in deciding the scope of delegated agency authority. A deference rule, as experience shows, makes

it far too easy for agencies and courts to throw up their

hands when faced with difficult statutory language

and rely on deference rather than careful textual analysis.5 But there are ample tools to extract meaning

from less-than-crystal-clear-text, which agencies and

courts alike should be required to use in place of an

easy determination that a statute is ambiguous. And

when text runs out, there are many other tools available to ensure that an agency’s interpretation is reasonable, like those described in Kisor v. Wilkie, 139 S.

Ct. 2400, 2415 (2019), and Sackett, 143 S. Ct. at 13381340, 1342-1343.

5 That, indeed, is the incentive Chevron creates. As courts have

come to apply Chevron, an agency’s determination that statutory

text is unambiguous, and its interpretation is the only permissible option, will result in non-deferential review. If, however, the

agency stops short of a rigorous textual analysis and declares

that it is interpreting an ambiguous statute, that reading will

likely receive deferential review. The practical consequence is

that agencies are encouraged to read statutes in a way that gives

them discretion to choose one of multiple decisions. See, e.g., Am.

Lung Ass’n v. EPA, 985 F.3d 914, 944, 995 (D.C. Cir. 2021), rev’d

on other grounds, West Virginia v. EPA, 142 S. Ct. 2587 (2022).

And that in turn results in agency interpretations that shift with

the Administration’s policy preferences, to the detriment of the

regulated community.

8

The Court has already made great strides in curtailing agency overreach and restoring the separation

of powers by reinvigorating the “major questions doctrine.” See, e.g., Biden v. Nebraska, 143 S. Ct. at 23722374; West Virginia v. EPA, 142 S. Ct. 2587, 2610,

2614-2616 (2022). But most agency errors are more

mundane, involving misreadings of or insufficient attention to statutory text, not the unauthorized determination of major policy questions. In those more runof-the-mill cases the Chevron doctrine continues to endorse unwarranted agency interpretations not intended by Congress. It is time for this Court to overrule Chevron.

ARGUMENT

I.

CHEVRON IS IRRECONCILABLE WITH JURISPRUDENTIAL HISTORY, THE CONSTITUTIONAL DESIGN, AND THE ADMINISTRATIVE PROCEDURE ACT

Chevron should be retired. The decision is at odds

with the Nation’s legal history, the Framers’ constitutional design, and the Administrative Procedure Act

(APA).

In articulating the Chevron doctrine, this Court

departed from the use of well-established canons of

statutory construction, and in the wake of that decision a “troubling” culture of “reflexive deference” to

agency interpretations has taken root in the lower

courts. Pereira, 138 S. Ct. at 2120 (Kennedy, J., concurring). The consequences of that deference—the judiciary gives deference to executive interpretations of

legislative enactments, which in turn incentivizes

Congress to delegate legislative power to the executive through purposefully ambiguous statutes—cannot be reconciled with the constitutional allocation of

power among the three branches of government.

9

It is time to correct the Chevron error and give

clear guidance to lower courts, regulators, and the

regulated that such deference is unwarranted.

A.

Chevron is not supported by a history of broad judicial deference to

executive interpretation of ambiguous legislative acts.

Chevron purports to rest on a “long[-]recognized”

principle that “considerable weight should be accorded to an executive department’s construction of a

statutory scheme it is entrusted to administer.” Chevron USA, Inc. v. Nat. Res. Def. Council, 467 U.S. 837,

844 & n.14 (1984). That “principle of deference to administrative interpretations,” id. at 844, however,

“is inconsistent with accepted principles of statutory

interpretation from the first century of the Republic.”

Baldwin v. United States, 140 S. Ct. 690, 693 (2020)

(Thomas, J., dissenting from denial of certiorari). Instead, “[w]hen 18th- and 19th-century courts decided

questions of statutory interpretation in common-law

actions or under federal-question jurisdiction, they

did not apply anything resembling Chevron deference.” Ibid.

According to Chevron, the origin of the principle of

deference was Edwards’ Lessee v. Darby, 25 U.S. (12

Wheat.) 206 (1827). Chevron, 467 U.S. at 844 n.14.

But as members of this Court and commentators alike

have recognized, Edwards’ Lessee did not sanction

broad deference to an agency interpretation but rather announced a narrow rule “that accorded respect

to certain contemporaneous, consistent interpretations of statutes by executive officers.” Baldwin, 140

S. Ct. at 693 (Thomas, J., dissenting from denial of

certiorari).

10

In Edwards’ Lessee, the Court held that “[i]n the

construction of a doubtful and ambiguous law, the

contemporaneous 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.” 25 U.S. (12 Wheat.) at 210. This decision “announced a doctrine of deference to contemporaneous and customary interpretations, not a doctrine

of deference to executive interpretations.” Aditya

Bamzai, The Origins Of Judicial Deference To Executive Interpretation, 126 Yale L.J. 908, 916 (2017); see

ibid. (“It was the pedigree and contemporaneity of the

interpretation, in other words, that prompted ‘respect’; the fact that the interpretation had been articulated by an actor within the executive branch was

relevant, but incidental”). That approach is consistent

with the “‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as

taking their ordinary * * * meaning * * * at the time

Congress enacted the statute.’” New Prime

Inc. v. Oliveira, 139 S. Ct. 532, 535 (2019).

This canon of construction, “requir[ing] that statutory interpretation be consistent and uniform—and,

hence, customary or contemporaneous” with the statute’s enactment “was repeatedly invoked to reject the

executive branch’s changed construction of a statute.”

Bamzai, supra, at 944-945; see Baldwin, 140 S. Ct. at

693 (Thomas, J., dissenting from denial of certiorari).

As this Court later articulated the interpretative

canon, “[w]here the meaning of the act [is] doubtful

* * * the rule is universal that the contemporaneous

construction of such statute is entitled to great respect, especially where it appears that the construction has prevailed for a long period, and that a different interpretation would impair vested rights.” The

11

City of Panama, 101 U.S. 453, 461 (1879); see Bamzai,

supra, at 946-947.

Meanwhile, other pre-Chevron interpretative canons held that an agency’s shifting or inconsistent interpretation of a legislative act was not entitled to respect. Baldwin, 140 S. Ct. at 693 (citing Merritt v.

Cameron, 137 U.S. 542, 552 (1890)). In Merritt, the

Court examined a Department of Treasury regulation

interpreting a statute regarding the timeliness of a

challenge to a tax levy. The Treasury had adhered to

its initial interpretation for 9 years and then changed

course. The Court interpreted the tax statute using

traditional interpretative tools and without any deference to the Treasury. 137 U.S. at 544-552. In rejecting

the argument that the Treasury’s construction should

be given weight, the Court explained that “[t]here is

no such long and uninterrupted acquiescence in a regulation of a department, or departmental construction

of a statute, as will” cause the Court to respect the

construction. Id. at 552 (citing, among others, Edwards’ Lessee).

Chevron, however, guarantees deference to an

agency’s construction of a statute regardless of

whether it was contemporaneous with the enactment,

reflects the understanding of statutory terms at the

time of their enactment, or has been uniform since

that time. See Baldwin, 140 S. Ct. at 694 (Thomas, J.,

dissenting from denial of certiorari). It thus goes far

beyond the nineteenth-century precedents it purports

to follow.

Chevron thwarts too another long-established

principle. “From the beginning of the Republic, the

American people have rightly expected our courts to

resolve disputes about their rights and duties under

law without fear or favor to any party—the Executive

12

Branch included.” Buffington v. McDonough, 143 S.

Ct. 14, 16 (2022) (Gorsuch, J., dissenting from denial

of certiorari). Chevron deference, however, “introduce[s] into judicial proceedings a ‘systematic bias toward one of the parties’”—and not “in favor of just any

party,” but “in favor of the most powerful of litigants,

the federal government, and against everyone else.”

Id. at 19, quoting Philip Hamburger, Chevron Bias, 84

Geo. Wash. L. Rev. 1187, 1212 (2016). That pro-government bias—involving rules that often carry criminal and severe civil penalties for violations—squarely

contradicts the “ancient doctrines of lenity and contra

proferentem” that, “[f]rom the founding,” have led

courts to “constru[e] ambiguities in penal

laws against the government and with lenity toward

affected persons.” Buffington, 143 S. Ct. at 19; see also

Sackett, 143 S. Ct. at 1343.

As discussed below, far from favoring the executive in matters of statutory interpretation, this Court

has made clear since Marbury v. Madison, 5 U.S. (1

Cranch) 137 (1803), that questions of statutory interpretation are for courts to resolve as a matter of law.

And that is the position Congress enshrined in the Administrative Procedure Act.

B.

Chevron is irreconcilable with the

allocation of power between the

branches of government.

1. Chevron cannot be squared with the constitutional separation of powers. Article III, § 1 states that

“[t]he judicial Power of the United States, shall be

vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain

and establish.” U.S. Const. Art. III, §1. This Clause,

together with the separate legislative and executive

13

Vesting Clauses in Article I, § 1 and Article II, § 1, articulate the separation of powers principle embedded

in the Constitution. See Seila Law LLC v. CFPB, 140

S. Ct. 2183, 2229 (2020) (Kagan, J., concurring in

part) (separation of powers principle is “carved into

the Constitution’s text” in the “first three articles”).

Under the separation of powers, the “[j]udicial

power” is exercised “always for the purpose of giving

effect to the will of the Legislature; or, in other words,

to the will of the law.” Osborn v. Bank of United

States, 22 U.S. (9 Wheat.) 738, 866 (1824). James

Madison acknowledged that the legislature’s enactments will often be ambiguous when he wrote that

“[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature

deliberation, are considered as more or less obscure

and equivocal, until their meaning be liquidated and

ascertained by a series of particular discussions and

adjudications” by the courts. The Federalist No. 37, at

183 (Madison). Alexander Hamilton envisaged “that

the courts were designed to be an intermediate body

between the people and the legislature, in order,

among other things, to keep the latter within the limits assigned to their authority.” The Federalist No. 78,

at 404 (Hamilton). In that view, “[t]he interpretation

of the laws is the proper and peculiar province of the

courts” and it is the courts’ job to ascertain “the meaning of any particular act proceeding from the legislative body.” Ibid. In short, “[t]he judicial power was understood to include the power to resolve [statutory]

ambiguities over time.” Perez v. Mortgage Bankers

Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring

in judgment).

Chevron improperly “wrests from Courts the ultimate interpretive authority to say what the law is”

and “hands it over to the Executive.” Michigan v. EPA,

14

576 U.S. 743, 761-762 (2015) (Thomas, J., concurring).

See Baldwin, 140 S. Ct. at 691 (Thomas, J., dissenting

from denial of certiorari) (“Chevron compels judges to

abdicate the judicial power without constitutional

sanction”). Chevron deference requires judges to

forego their basic adjudicative function and to

“thro[w] up our hands and le[t] an interested party—

the federal government’s executive branch, no less—

dictate an inferior interpretation of the law that may

be more the product of politics than a scrupulous reading of the statute.” BNSF Railway Co. v. Loos, 139 S.

Ct. 893, 908-909 (2019) (Gorsuch, J., dissenting).

Chevron, by requiring deference to a “reasonable”—but not the best—interpretation of ambiguous

statutory language undermines the authority of Congress for no good reason. Courts unquestionably possess the ability to construe complicated, obscure statutory language and affix meaning to legislative pronouncements. And they do so without the incentives

that may lead regulators into interpretations that are

driven by political considerations or a desire to expand

their own authority. One has only to contrast the

starkly different interpretations of the phrase “waters

of the United States” in the CWA that were set forth

in the last Administration’s 2020 Rule and this Administration’s January 2023 Rule to understand the

practical dangers of deference and the need for judicial primacy in interpreting statutes. See Sackett, 143

S. Ct. at 1341 (holding agencies’ latest rule to be “inconsistent with the text and structure of the CWA”);

compare The Navigable Waters Protection Rule, 85

Fed. Reg. 22250 (Apr. 21, 2020) with Revised Definition of “Waters of the United States,” 88 Fed. Reg. 3004

(Jan. 18, 2023).

2. There is another constitutional problem with

Chevron: it rests on the assumption that Congress

15

may either explicitly or implicitly delegate authority

to executive agencies to fill gaps through the enactment of ambiguous statutes. 467 U.S. at 843 (citing

Morton v. Ruiz, 415 U.S. 199, 231 (1974) (“The power

of an administrative agency to administer a congressionally created [and funded] program necessarily requires the formulation of policy and the making of

rules to fill any gap left, implicitly or explicitly, by

Congress.”)). See also Smith v. Berryhill, 139 S. Ct.

1765, 1778 (2019) (“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”) (internal quotation marks

omitted).

By its plain text, Article I’s Vesting Clause contains an exclusive grant of authority to Congress to exercise the “legislative powers” of government. Simply,

“[w]hen the Government is called upon to perform a

function that requires an exercise of legislative * * *

power, only the vested recipient of that power can perform it.” Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43, 68 (2015) (Thomas, J., concurring). And

“[n]o one, not even Congress, ha[s] the right to alter

that arrangement.” Gundy v. U.S., 139 S. Ct. 2116,

2133 (2019) (Gorsuch, J., dissenting).

The Constitution does not authorize Congress to

sub-delegate that power to another branch of government. See Rucho v. Common Cause, 139 S. Ct. 2484,

2511 (2019) (Kagan, J., dissenting) (“Republican liberty demands not only, that all power should be derived from the people; but that those entrusted with it

should be kept in dependence on the people”) (cleaned

up). Congressional delegation of the legislative power,

thus, threatens the republican form of government

guaranteed by the Constitution. See U.S. Const. Art.

IV, § 4 (“The United States shall guarantee to every

16

State in this Union a Republican Form of Government”); Mistretta v. United States, 488 U.S. 361, 371

(1989) (“The nondelegation doctrine is rooted in the

principle of separation of powers that underlies our

tripartite system of Government”).

This Court’s jurisprudence requires Congress to

provide an “intelligible principle” to govern an

agency’s exercise of discretion in performing its delegated duties. Mistretta, 488 U.S. at 372. Chevron

works directly against this key element of the non-delegation doctrine because it promotes enactment of

vague statutory language than can be repeatedly interpreted and re-interpreted by agencies according to

their current policy interests without serious fear that

their shifting interpretations will be invalidated.

Knowing that there is a thumb on the scale in favor of

their interpretation of ambiguous statutory language,

agencies are incentivized to encourage Congress to

adopt vague statutory regimes with plenty of “gaps”

for the agencies to fill according to their desires and

then to “write ever more ambitious rules on the

strength of ever thinner statutory terms, all in the

hope that some later court will find their work to be at

least marginally reasonable.” Buffington, 143 S. Ct. at

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

See Christopher J. Walker, Legislating in the Shadows, 165 U. Pa. L. Rev. 1377, 1419 (2017) (discussing

agency incentives to propose flexible, broad, and ambiguous statutes to Congress).

Also knowing this, Congress can avoid making the

hard choices often involved in the legislative process

and instead enact vague statutes. See, e.g., Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2380 (2020) (explaining that

“Congress could have limited [the Health Resources

17

and Services Administration’s] discretion” to implement the Affordable Care Act “in any number of ways,

but it chose not to do so”); id. at 2382 (“it was Congress’ deliberate choice to issue an extraordinarily

broad general directive to HRSA to craft the Guidelines, without any qualifications as to the substance of

the [Preventative Care] Guidelines or whether exemptions were permissible”) (internal quotation marks

omitted). Justice Gorsuch has explained that “often

enough, legislators will face rational incentives to

pass problems to the executive branch.” Gundy, 139 S.

Ct. at 2135 (Gorsuch, J., dissenting). Chevron encourages exactly that.

C.

Chevron is irreconcilable with the

APA.

The Administrative Procedure Act of 1946 governs judicial review of agency action; and in the APA

Congress made clear that it is for the judiciary to interpret statutes authorizing agency action de novo.

Section 706 of the APA states that “the reviewing

court shall 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. As a contemporary

commentator observed, that language was a “clear

mandate” for a court to decide questions of law “for

itself, and in the exercise of its own independent judgment.” John Dickinson, Administrative Procedure Act:

Scope and Grounds of Broadened Judicial Review, 33

A.B.A. J. 434, 516 (1947); see Bamzai, supra, at 991999 (discussing the APA and its aftermath); Buffington, 143 S. Ct. at 17 (Gorsuch, J., dissenting from denial of certiorari). Indeed, before Chevron “many

prominent judicial opinions in the decades following

18

the adoption of the APA never even mentioned Executive Branch interpretation of disputed statutory

terms.” Buffington, 143 S. Ct. at 17 (Gorsuch, J., dissenting) (citing J. Beerman, End the Failed Chevron

Experiment Now: How Chevron Has Failed and Why

It Can and Should Be Overruled, 42 Conn. L. Rev. 779,

792 (2010)).

“Heedless of the original design of the APA,” Chevron prevents courts from carrying out the APA’s mandate. Perez, 575 U.S. at 109 (Scalia, J., concurring).

Under Chevron, “[s]o long as the agency does not stray

beyond the ambiguity in the text being interpreted,

deference compels the reviewing court to ‘decide’ that

the text means what the agency says” it means. Id. at

110. Instead of courts applying their independent

judgment to decide questions of law, as the APA shows

Congress intended, courts under Chevron reflexively

defer to agency interpretations of statutory provisions. See Pereira, 138 S. Ct. at 2120 (Kennedy, J.,

concurring).

For these reasons, Chevron deference is legally

baseless and dangerously undermines the separation

of powers and the constitutional and statutory authority of the courts.

II. LOWER COURTS ARE HARMING THE REGULATED COMMUNITY BY APPLYING

CHEVRON TO REACH INCORRECT DECISIONS.

The harms caused by Chevron are not theoretical.

Both the deference doctrine itself, and the current legal limbo in which it lies, lead to businesses like

amici’s members being bound by rules that Congress

never intended, as well as to uncertainty over whether

courts will correct an agency’s errors.

19

The distorting effect of Chevron deference is evident, for example, in litigation over the meaning of

key environmental statutes, where the doctrine has

routinely driven lower courts into erroneous decisions

that this Court has had to correct. But for those cases

that are not reviewed by this Court, the effect of Chevron is to create “a ‘systematic judicial bias in favor of

the federal government, the most powerful of parties,

and against everyone else.’” Kisor, 139 S. Ct. at 2425

(2019) (Gorsuch, J., concurring in judgment). And because the “administrative state ‘touches almost every

aspect of daily life,’ * * * often it is ordinary individuals who are unexpectedly caught in the whipsaw of all

the rule changes a broad reading of Chevron invites.”

Buffington, 143 S. Ct. at 21 (Gorsuch, J., dissenting

from denial of certiorari).

Take the SWANCC litigation over the U.S. Army

Corps of Engineers’ 1986 “migratory bird rule.” By deferring to the Corps’ interpretation under Chevron,

the Seventh Circuit upheld a Clean Water Act (CWA)

rule defining “waters of the United States” that vastly

expanded agency jurisdiction to cover isolated ponds

used by migratory birds. Finding the term “waters of

the United States” to be ambiguous, the court of appeals held that it was required by Chevron to “defer to

the agency interpretation so long as it is based on a

reasonable reading of the statute.” And it held the migratory bird rule to be a reasonable interpretation “because Congress’ power under the Commerce Clause is

broad enough to permit regulation of waters based on

the presence of migratory birds.” Solid Waste Agency

of N. Cook County v. U.S. Army Corps of Engineers,

191 F.3d 845, 851 (7th Cir. 1999).

This Court reversed. Id., 531 U.S. 159 (2001). It

held that the Clean Water Act is “clear” that isolated

20

features are not “waters of the United States” and

that the migratory bird rule “exceeds the authority

granted to [the agencies] under §404(a) of the CWA”

because it was too far removed from the jurisdictional

term “navigable waters.” Id. at 172, 174. Shorn of the

requirement of “deference,” standard methods of textual analysis and principles of statutory interpretation—as applied by this Court when it reversed—

would surely have resulted in lower courts recognizing

that the migratory bird rule was unlawful. Yet that

rule controlled CWA jurisdiction, and imposed massive permitting costs on land users, for 15 years before

this Court struck it down.

Another example. Despite the term “critical habitat” in the Endangered Species Act having the very

plain meaning that whatever is designated as “critical

habitat” for an endangered species must actually be

“habitat” for that species, the Fifth Circuit held otherwise. Relying entirely on Chevron deference, the court

of appeals held that the agency could designate as critical habitat for the endangered Dusky Gopher Frog

land that admittedly could not support the frog’s

lifecycle, i.e., was not its habitat. Markle Interests,

LLC v. U.S. Fish & Wildlife Service, 827 F.3d 452 (5th

Cir. 2016). This Court unanimously reversed. Weyerhaeuser v. U.S Fish & Wildlife Service, 139 S. Ct. 361,

368 (2018) (“According to the ordinary understanding

of how adjectives work, ‘critical habitat’ must also be

‘habitat.’ * * * Only the ‘habitat’ of the endangered

species is eligible for designation as critical habitat”). Had this Court not stepped in, it observed, the

costs to the landowner plaintiffs of the Fifth Circuit’s

deference to the agency’s mistaken interpretation

would have been between $20 and $34 million. Id. at

367.

21

This sequence of events—in which lower courts

uphold agency action by deferring under Chevron, and

this Court then steps in to correct the error—is entirely unsatisfactory. It delays the correct resolution

of challenges to agency action, which is costly for regulated entities that must operate under an unlawful

agency interpretation. It increases the parties’ litigation costs by generating additional levels of judicial

review, which also wastes judicial resources. And because this Court cannot step in to correct every erroneous decision deferring under Chevron, it means that

some manifestly erroneous agency actions survive far

longer than they should.

In addition, the prospect of deference leads agencies to rely on it rather than engage in rigorous analysis of statutory text. Indeed, it is not unheard of for

an agency to “abandon any pretense of interpreting

the statute’s terms and retreat to policy arguments

and pleas for deference.” Niz-Chavez v. Garland, 141

S. Ct. 1474, 1485 (2021). A deference doctrine encourages not just overreaching by agencies, but repeated

overreaching. See Talk Am., Inc. v. Michigan Bell Tel.

Co., 564 U.S. 50, 69 (2011) (FCC “has repeatedly been

rebuked in its attempts to expand the statute beyond

its text, and has repeatedly sought new means to the

same ends”) (Scalia, J., concurring).

The “waters of the United States” saga illustrates

the problem. Despite this Court holding in United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121

(1985), that CWA jurisdiction extends to wetlands

that actually abut and are indistinguishable from

navigable waters, and despite this Court in SWANCC

striking down the migratory bird rule as a “clear” violation of the statute, EPA and the Corps continued to

assert expansive jurisdiction over isolated ponds or

22

only sometimes-wet areas, and lower courts upheld

those agency actions under Chevron. See Sackett, 143

S. Ct. at 1333 (“Deferring to the agencies’ localized decisions, lower courts blessed an array of expansive interpretations of the CWA’s reach”).

In particular, the agencies asserted that a single

Justice’s concurring opinion in Rapanos v. United

States, 547 U.S. 715 (2006), supported their decision

to base jurisdiction on a concept—a “significant

nexus” to navigable waters—that appears nowhere in

the CWA; devised an open-ended, all-encompassing

test for significant nexus; and insisted that Chevron

required deference to their interpretation of the statute. See, e.g., EPA Br. at 42-43, Murray Energy Corp.

v. EPA, No. 15-3751 (Dkt. 149-1) (6th Cir. Jan 13,

2017) (arguing that Chevron required “heightened”

deference to the agencies’ 2015 Rule defining “waters

of the United States” to include all features with a significant nexus to navigable waters).

Bolstered by entirely unwarranted deference, the

significant nexus rule, which imposed federal permitting requirements on use of virtually any wet patch in

the Nation, held sway from post-Rapanos guidance issued in 2008 until this Court last Term definitively

disapproved its latest iteration. See Sackett, 143 S. Ct.

at 1341 (refusing “to defer to [the agencies’] understanding of the CWA’s jurisdictional reach, as set out

in its most recent rule defining ‘the waters of the

United States’” because it “is inconsistent with the

text and structure of the CWA” as well as “‘background principles of construction’”). So thanks to

Chevron deference, amici’s members and the rest of

the regulated community have for 15 years labored

under an unlawfully broad agency interpretation of a

23

key statute, at great expense in terms both of compliance costs, lost opportunities, and the costs of repeatedly litigating to try to right that wrong.6

With Chevron still on the books, lower courts continue to reflexively defer to agency interpretations of

statutes. For instance, in Foster v. U.S. Dep’t of Ag.,

68 F.4th 372 (8th Cir. 2023), the Eighth Circuit was

called upon to examine whether a USDA regulation

regarding a property owner’s right to request review

of a wetland certification conflicted with the enabling

statute, the Swampbuster Act. After a brief discus-

6 See also, e.g., White Stallion Energy Center, LLC v. EPA, 748

F.3d 1222, 1236 (D.C. Cir. 2014) (D.C. Circuit deferred to EPA’s

refusal to consider the costs of a Clean Air Act emissions regulation that was statutorily required to be “appropriate and necessary”), reversed, Michigan v. EPA, 576 U.S. 743, 752-754 (2015)

(“appropriate and necessary” requires attention to costs); see id.,

576 U.S. at 763 (“we should be alarmed that [EPA] felt sufficiently emboldened by [Chevron] to make the bid for deference

that it did here”) (Thomas, J., concurring). Often, an agency that

engages in the required close reading of a statute, in context and

making use of canons of statutory interpretation, will find ample

authority without resort to deference. See, e.g., Entergy Corp. v.

Riverkeeper, Inc., 556 U.S. 208, 217-223 (2009) (“extended consideration of the text of § 1326(b), and comparison of that with

the text and statutory factors applicable to four parallel provisions of the Clean Water Act, leads … to the conclusion” that

Act’s phrase “best technology available for minimizing adverse

environmental impact” was reasonably read to mean “the technology that most efficiently produces some good,” because “[i]n

common parlance one could certainly use the phrase ‘best technology’ to refer to that which produces a good at the lowest perunit cost”). See also, e.g., Michigan v. EPA, 576 U.S. at 750, 752

(the fundamental principal that rational rulemaking requires an

agency to consider all relevant factors leads to the conclusion

that the statute requires the agency to consider the costs and

benefits of its action (citing Motor Vehicle Mfrs. Assn. v. State

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

24

sion, the court determined that the operative provision of the Act, 16 U.S.C. § 3822(a)(4), was ambiguous.

Id. at 376. The court found that the statutory provision could be read in two ways and, therefore, it

adopted the agency’s interpretation, which limited the

right of farmers to request review of wetland certifications, because it was “reasonable.” Id. at 377-378. This

is so despite the fact that the court possesses the ability to resolve statutory ambiguity as part of its traditional interpretative toolkit.

For amici and their members, the issue presented

here is urgent. A host of recently proposed or finalized

rules assert extravagant agency powers untethered

from statutory language, and often depart from prior

agency understandings of their authority. Those rules

promise more of the same—years of uncertainty and

of litigation over whether deference is warranted—

unless Chevron is now put to rest.

With Chevron and more generally, courts, federal

regulators, and the regulated community would benefit greatly if this Court were to correct lower courts’

errors in interpreting this Court’s decisions before

they become entrenched. It should not take “nearly 50

years” for this Court to announce that an “undue

hardship” in an employer providing a religious accommodation under Title VII does not mean a “more than

de minimis” hardship but instead a “substantial increased cost in relation to [the employer’s] conduct of

its particular business.” Groff v. DeJoy, 143 S. Ct.

2279, 2286-2287, 2295 (2023) (correcting a virtually

universal lower court misreading of Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)). And

forty years of Chevron, in which lower courts have

used that case to avoid close readings of statutory text

and context and careful application of principles of

statutory construction, is more than enough.

25

III. AGENCY DECISIONS CAN BE ACCORDED

THEIR PROPER WEIGHT THROUGH NORMAL STATUTORY CONSTRUCTION PRINCIPLES.

Abandoning Chevron does not mean that an

agency’s interpretation of a statute it administers is

worthless. To the contrary, a well-reasoned interpretation of statutory language by an agency with subject

matter expertise is entitled to respectful consideration

and may prove persuasive to the court. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (“The

weight” a court affords an agency’s interpretation

“will depend upon 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”); Aluminum Co. of Am. v. Central

Lincoln Peoples' Util. Dist., 467 U. S. 380, 390 (1984)

(principles of deference “have particular force” where

the “subject under regulation is technical and complex” and the agency “has longstanding expertise in

the area”); Entergy Corp., p. 23 n.6, supra. As Justice

Gorsuch has explained, “no one doubts that courts

should pay close attention to an expert agency’s views

on technical questions in its field. Just as a court

would want to know what John Henry Wigmore said

about an issue of evidence law or what Arthur Corbin

thought about a matter of contract law, so too should

courts carefully consider what the Food and Drug Administration thinks about how its prescription drug

safety regulations operate.” Kisor, 139 S. Ct. at 2442

(Gorsuch, J., concurring in the judgment) (cleaned

up).

In other words, courts will give due consideration

to a well-reasoned agency interpretation. But the final

say about what a statute means must remain with the

26

judiciary: “while courts should of course afford respectful consideration to the expert agency’s views,

they must remain open to competing expert and other

evidence supplied in an adversarial setting.” Id. at

2443.

This approach—providing respect or “particular

attention” to a well-reasoned agency decision—is consistent with interpretative canons dating back to Edwards’ Lessee. In the absence of Chevron deference, a

court may find an agency’s construction of an ambiguous statute “particularly persuasive” if, for instance,

the interpretation “was made contemporaneously

with the enactment of the statute itself,” the agency

“has not since interpreted the statute in a way that

directly contradicts that contemporaneous interpretation,” and the regulated industry did not object to the

interpretation. Wisconsin Central Ltd. v. United

States, 138 S. Ct. 2067, 2078 (2018) (Breyer, J., dissenting). Far from undermining regulation, dismantling Chevron deference will incentivize agencies to

conduct careful statutory analysis that will persuade

a court of its correctness, rather than rely on rote judicial deference, and thereby improve the quality of

regulation and agency adherence to congressional intent.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

27

ELLEN STEEN

TRAVIS CUSHMAN

American Farm Bureau

Federation

600 Maryland Ave. SW

Suite 1000W

Washington, DC 20024

TIMOTHY S. BISHOP

Counsel of Record

BRETT E. LEGNER

Mayer Brown LLP

71 South Wacker Drive

Chicago, Illinois 60606

(312) 782-0600

tbishop@mayerbrown.com

MICHAEL C. FORMICA

National Pork Producers

Council

122 C Street NW

Suite 875

Washington, DC 20001

RICHARD GUPTON

Agricultural Retailers

Association

4201 Wilson Blvd.

Suite 700

Arlington, VA 22203

Counsel for Amici Curiae

JULY 2023