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 THE OHIO

CHAMBER OF COMMERCE IN SUPPORT OF

PETITIONERS

____________

TONY LONG

OHIO CHAMBER OF

COMMERCE

34 South Third Street

Suite 100

Columbus, OH 43215

(614) 228-4201

tlong@ohiochamber.com

LARRY J. OBHOF, JR.

Counsel of Record

SHUMAKER, LOOP &

KENDRICK, LLP

41 South High Street

Suite 2400

Columbus, OH 43215

(614) 463-9441

lobhof@shumaker.com

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

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

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

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

SUMMARY OF ARGUMENT.................................... 2

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

I. The Court Of Appeals’ Holding Is Inconsistent

With The Separation of Powers ........................... 5

A. The Chevron Doctrine Intrudes on

the Courts’ Responsibility to Interpret the

Law................................................................... 6

II. This Court Should Overrule Chevron Or Scale

Back Chevron-style Deference To Respect

The Courts’ Primary Role In Interpreting

Statutes ............................................................... 13

A. The Ohio Supreme Court Has Adopted an

Approach to Deference That Properly

Respects the Separation of Powers. .............. 14

B. Numerous Other States Are Stepping Back

From Chevron-style Deference. .................... 17

CONCLUSION ......................................................... 20

iii

TABLE OF AUTHORITIES

Cases

Buffington v. McDonough,

143 S. Ct. 14 (2022)....................................... 3, 8, 12

Burnet v. Chicago Portrait Co.,

285 U.S. 1 (1932) ..................................................... 8

Calder v. Bull,

3 U.S. (3 Dall.) 386 (1798) .................................... 16

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

Council, Inc.,

467 U.S. 837 (1984) ................................. 2-15, 17-19

City of Arlington, Texas v. F.C.C.,

569 U.S. 290 (2013) ............................................... 12

Cochran v. State, Dep’t of Agr., Div. of Water Res.,

291 Kan. 898 (Kan. 2011) ..................................... 18

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

2016 UT 34 (Utah 2016) ....................................... 18

Free Enterprise Fund v. Public Company Accounting

Oversight Bd.,

561 U.S. 477 (2010) ........................................... 1, 17

Gutierrez-Brizuela v. Lynch,

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

iv

In re Complaint of Rovas Against SBC Michigan,

482 Mich. 90, 754 N.W.2d 259 (Mich. 2008) ........ 18

In re Murchison,

349 U.S. 133 (1955) ............................................... 16

King v. Mississippi Mil. Dep’t,

245 So. 3d 404 (Miss. 2018) .................................. 18

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ......................................... 3, 9

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................................................. 7

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ...............3, 6, 7, 10, 13

Michigan v. EPA,

576 U.S. 743 (2015) ......................................... 10, 20

Myers v. Yamato Kogyo Co., Ltd.,

2020 Ark. 135 (Ark. 2020) .................................... 17

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

Internet Servs.,

545 U.S. 967 (2005) ................................... 3, 4, 7, 11

North Carolina Acupuncture Licensing Bd. v. North

Carolina Bd. of Physical Therapy Examiners,

371 N.C. 697 (N.C. 2018) ..................................... 18

v

Perez v. Mortgage Bankers Assn.,

135 S. Ct. 1199 (2015) ........................................... 11

Pickard v. Tennessee Water Quality Control Bd.,

424 S.W.3d 511 (Tenn. 2013)................................ 18

Pub. Water Supply Co. v. DiPasquale,

735 A.2d 378 (Del. 1999)....................................... 19

Serano Lab’ys v. Shalala,

158 F.3d 1313 (D.C. Cir. 1998) ......................... 4, 10

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ......................................... 13, 16

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

2018 WI 75 (Wis. 2018)................................... 17, 18

TWISM Enterprises LLC v. State Bd. of Registration

for Professional Engineers & Surveyors,

2021-Ohio-3665 (Ohio App. 1st Dist. 2021) ... 14, 15

TWISM Enterprises LLC v. State Bd. of Registration

for Professional Engineers & Surveyors,

2022-Ohio-4677 (Ohio 2022) ..............4, 5, 14, 15, 16

Constitutions

U.S. CONST., art. III, § 1 ............................................. 7

FLA. CONST. art. V, § 21........................................... 19

vi

Statutes and Rules

5 U.S.C. § 553 ........................................................... 12

5 U.S.C. § 556 ........................................................... 12

5 U.S.C. § 557 ........................................................... 12

5 U.S.C. § 706 ........................................................... 12

5 U.S.C. § 706(2)(A).................................................. 12

5 U.S.C. § 706(2)(C).................................................. 12

5 U.S.C. § 706(2)(E).................................................. 12

47 U.S.C. § 151 et seq. .............................................. 11

Ariz. Rev. Stat. § 12-910(F) ..................................... 19

Ohio Rev. Code § 4733.16(D) ................................... 14

Tenn. Code Ann. § 4-5-326....................................... 19

Wis. Stat. § 227.57(10) ............................................. 18

Sup. Ct. R. 37.6 .......................................................... 1

Other Authorities

Kent Barnett & Christopher J. Walker, Chevron in

the Circuit Courts, 116 MICH. L. REV. 1 (2017) ...... 9

vii

The Federalist No. 10 (James Madison)

(Clinton Rossiter ed., 2003) .................................. 15

The Federalist No. 51 (James Madison)

(Clinton Rossiter ed., 2003) .................................... 7

The Federalist No. 78 (Alexander Hamilton)

(Clinton Rossiter ed., 2003) .................................... 7

Philip Hamburger, Chevron Bias, 84 GEO. WASH. L.

REV. 1187 (2016) ................................................... 16

Thomas W. Merrill, THE CHEVRON DOCTRINE: ITS

RISE AND FALL, AND THE FUTURE OF THE

ADMINISTRATIVE STATE

(Harvard Univ. Press 2002).................................. 13

Thomas W. Merrill, The Story of Chevron: The

Making of an Accidental Landmark, 66 ADMIN. L.

REV. 253 (2014) ................................................... 8, 9

1

INTEREST OF AMICUS CURIAE 1

Founded in 1893, the Ohio Chamber of Commerce

(the “Ohio Chamber”) is Ohio’s largest and most

diverse statewide business advocacy organization,

representing businesses ranging from small sole

proprietorships to some of the nation’s largest

companies. The Ohio Chamber works to promote and

protect the interests of its more than 8,000 business

members, while building a more favorable business

climate in Ohio by advocating for the interests of

Ohio’s business community on matters of statewide

importance.

The Ohio Chamber promotes a pro-growth agenda

with policymakers and in courts across Ohio. It seeks

a stable and predictable legal system which fosters a

business climate where enterprise and Ohioans can

prosper. The Ohio Chamber regularly files amicus

briefs in cases that are important to its members’

interests.

The Ohio Chamber supports a regulatory

environment that is conducive to economic growth.

As this Court has recognized, the administrative state

“wields vast power and touches almost every aspect of

daily life.” Free Enterprise Fund v. Public Company

Accounting Oversight Bd., 561 U.S. 477, 499 (2010).

1 Pursuant to Sup. Ct. R. 37.6, amicus curiae states that no

counsel for any party authored this brief in whole or in part, nor

did any person or entity, other than amicus, its members, or its

counsel make a monetary contribution to the preparation or

submission of this brief.

2

Amicus curiae therefore has a strong interest in

ensuring that statutes and regulations are properly

construed, and that administrative agency actions are

not unnecessarily burdensome on businesses and

other job creators.

SUMMARY OF ARGUMENT

Administrative agencies exercise a significant

amount of authority when implementing and

enforcing our nation’s laws. This Court’s decision in

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

Council, Inc., 467 U.S. 837 (1984), augmented that

authority by requiring courts to show deference to an

agency’s interpretation of an ambiguous statute so

long as the agency’s interpretation “is based on a

permissible construction of the statute.” Id. at 843.

Despite this reasonable beginning, four decades later

it has become clear that the Chevron doctrine must be

reined in.

Amicus curiae the Ohio Chamber of Commerce

agrees with Petitioners that the Court of Appeals

erred in its application of Chevron deference. See Pet.

at 16-27. As Judge Walker explained in his dissent,

“Congress unambiguously did not” “authorize the

National Marine Fisheries Service to make herring

fishermen in the Atlantic pay the wages of federal

monitors who inspect them at sea.” Pet. App. 21. The

usual tools of statutory interpretation, including

canons such as expressio unius est exclusio alterius,

are sufficient to resolve this issue. “[I]f the law gives

an answer” in its text, “then a court has no business

3

deferring to any other reading.” Kisor v. Wilkie, 139

S. Ct. 2400, 2415 (2019).

Amicus curiae writes separately to emphasize the

constitutional problems posed by the Court of

Appeals’ decision, and to offer a potential solution.

The strong form of deference applied below is

inconsistent with the separation of powers. The

panel’s majority conceded that there is no clear

statutory authority for the challenged rules. See Pet.

App. 13 (acknowledging “the text does not compel the

Service’s interpretation of the Act”). The court

nonetheless held that statutory “silence” on the issue

“leaves room for agency discretion” in designing such

programs. Pet. App. 12. Amicus curiae respectfully

submits that this reasoning intrudes on the

prerogatives of both the legislative and judicial

branches. First, it allows executive agencies to engage

in the legislative function of policymaking. Second, it

cedes to those agencies the courts’ responsibility to

“say what the law is.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803).

The Chevron doctrine springs from the proposition

that courts should afford consideration to executive

interpretations of the law. See Buffington v.

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

dissenting from denial of certiorari). Yet Chevron and

subsequent decisions “require[] a federal court to

accept the agency’s construction of the statute, even if

the agency’s reading differs from what the court

believes is the best statutory interpretation.” Nat’l

Cable & Telecommunications Ass’n v. Brand X

4

Internet Servs., 545 U.S. 967, 980 (2005) (citing

Chevron, 467 U.S. at 843-44 & n.11). Unsurprisingly,

in practice this has often led to agencies’

interpretations trumping those of the courts. See,

e.g., Serano Lab’ys v. Shalala, 158 F.3d 1313, 1321

(D.C. Cir. 1998) (holding that a court must follow an

agency’s “reasonable” interpretation even if the court

finds that there are other interpretations which are

“more reasonable”). This intrudes on the proper role

of the judiciary to interpret the law. This Court should

no longer allow agencies to wrest that responsibility

from the federal courts.

Several states have eliminated Chevron-style

deference through court decisions, by statute, or even

by constitutional amendment. For example, just last

year the Ohio Supreme Court rejected Chevron-style

deference for state agency interpretations of

statutes. In TWISM Enterprises LLC v. State Bd. of

Registration for Professional Engineers & Surveyors,

the Ohio Supreme Court held that such deference

violates separation of powers principles by “hand[ing]

to the executive branch the judicial authority ‘to say

what the law is.’” TWISM Enterprises, 2022-Ohio4677, ¶ 34 (Ohio 2022) (citation omitted).

The TWISM court struck a balance between

protecting the judiciary’s role and allowing courts to

rely on agency expertise. It rejected mandatory

deference, but held that Ohio courts may nonetheless

consider agency interpretations of ambiguous

statutes. Id. at ¶ 44. However, such consideration

must be based on the “persuasive power of the

5

agency’s interpretation and not on the mere fact that

it is being offered by an administrative agency.” Id. at

¶ 45. This approach shows the proper respect to the

executive branch while also protecting the role of the

courts.

This Court should consider the well-founded

reasoning of Ohio and other States that have rejected

mandatory deference to agency interpretations. This

Court should overrule Chevron or replace it with a

new test that better respects the courts’ primary role

in interpreting the law.

ARGUMENT

I.

The Court Of Appeals’ Holding Is

Inconsistent With The Separation of

Powers.

The Chevron doctrine, as applied by the Court of

Appeals in its decision below, is inconsistent with the

Constitution’s separation of powers. Administrative

agencies undoubtedly have some authority to shape

how statutes are interpreted and implemented. In

practice, however, the courts’ reliance on Chevron has

allowed agencies to promulgate regulations and

requirements beyond those found in enabling

statutes. Likewise, it has often substituted the will of

agencies for the judgment of the courts.

Here, Respondents imposed a rule on a segment of

the fishing industry—specifically, requiring certain

fishermen to “pay the wages of federal monitors who

6

inspect them at sea.” Pet. App. 21. This rule will have

significant financial and practical implications,

harming small businesses and historic fishing

communities. See, e.g., Pet. App. 12 (noting “the

substantial costs of industry-funded monitoring to

herring fishing companies”). There is no explicit

statutory authorization for the rule. See Pet. App. 13.

Applying Chevron, however, the Court of Appeals

concluded that the statute’s “silence” on the issue

“leaves room for agency discretion,” and that

Respondents are entitled to deference in exercising

that discretion. Pet. App. 12.

Such deference is inconsistent with the separation

of powers. The Court of Appeals’ decision would allow

agencies to usurp the policymaking authority of the

legislature by promulgating rules that are neither

found in, nor authorized by, the underlying statute.

It also cedes to those agencies the courts’

responsibility to “say what the law is.” Marbury, 5

U.S. (1 Cranch) at 177.

For these reasons, the decision of the Court of

Appeals should be reversed. Additionally, if Chevron

actually supports such an outcome, it should be

overruled or its scope should be significantly limited.

A. The Chevron Doctrine Intrudes on the

Courts’ Responsibility to Interpret the

Law.

The Constitution “divides all power conferred

upon the Federal Government” between the

7

legislative, executive and judicial branches. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 559 (1992); see

generally The Federalist No. 51, at 317-322 (James

Madison) (Clinton Rossiter ed., 2003). Each branch

has a separate and distinct role. Article III vests

“[t]he judicial Power of the United States” in the

“[S]upreme Court, and in such inferior Courts as the

Congress may from time to time ordain and

establish.” U.S. CONST., art. III, § 1; see also The

Federalist No. 78, at 466 (Alexander Hamilton)

(Clinton Rossiter ed., 2003) (“The interpretation of

the laws is the proper and peculiar province of the

courts.”). The very purpose of the judiciary is to stand

as a check on the legislative and executive branches.

See id. (stating that it “cannot be the natural

presumption” that the political branches should serve

as “judges of their own powers”).

Modern administrative law—particularly the

federal courts’ application of the Chevron decision—

encroaches on the courts’ responsibility. Strong forms

of deference turn the constitutional structure on its

head by giving executive agencies, rather than the

courts, the primary responsibility to interpret the

law. This Court made clear more than two centuries

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

the judicial department to say what the law is.”

Marbury, 5 U.S. (1 Cranch) at 177 (emphasis added).

Yet Chevron and its progeny relegate courts to the

much more limited role of determining whether an

agency’s construction is “reasonable.” See Chevron,

467 U.S. at 844-45; Brand X, 545 U.S. at 980. This

8

deference, or at least the strong version of it applied

below, is inconsistent with the separation of powers.

The Chevron doctrine springs from the reasonable

proposition that courts should afford consideration to

executive interpretations of the law. See Buffington,

143 S. Ct. at 18 (Gorsuch, J., dissenting from denial

of certiorari). Chevron sets forth a two-step process

for reviewing agency interpretations. First, the court

should use the “traditional tools of statutory

construction” to determine if “Congress had an

intention on the precise question at issue.” Chevron,

467 U.S. at 843 n.9. If so, “that is the end of the

matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of

Congress.” Id. at 842-43. Only if the statute is silent

or ambiguous does the court proceed to step two—

determining whether the agency interpretation “is

based on a permissible construction of the statute.”

Id. at 843.

These principles were in line with the Court’s

traditional pattern of affording consideration to

executive

interpretations

without

necessarily

deferring to them. See, e.g., Burnet v. Chicago Portrait

Co., 285 U.S. 1, 16 (1932) (“The court is not bound by

an administrative construction … [and] it will be

taken into account only to the extent that it is

supported by valid reasons.”). There is little reason

to believe that the Court intended, at the time that

Chevron was decided, to make “fundamental changes

in the law of judicial review.” Thomas W. Merrill, The

Story of Chevron: The Making of an Accidental

9

Landmark, 66 ADMIN. L. REV. 253, 275 (2014). To the

contrary, Professor Thomas W. Merrill recounts that

Justice Stevens (who authored the opinion) regarded

Chevron as merely a restatement of existing law. See

id. at 275 & n.77.

Despite these seemingly innocuous beginnings,

over time Chevron’s two-part test has often resulted

in agency interpretations substituting for the

judgment of courts. To be sure, whether interpreting

statutes or regulations, the courts are supposed to

“exhaust all the ‘traditional tools’ of construction”

before finding ambiguity. Kisor, 139 S. Ct. at 2415

(quoting Chevron, 467 U.S. at 843 n.9). “[I]f the law

gives an answer … then a court has no business

deferring to any other reading, no matter how much

the agency insists it would make more sense.” Kisor,

139 S. Ct. at 2415. Yet this is not what occurs in

practice. It is relatively easy for agencies to claim

“ambiguity,” and relatively common for the courts to

agree. In fact, a sample of more than 1,000 cases

shows that courts applying Chevron find ambiguity

70% of the time. See Kent Barnett & Christopher J.

Walker, Chevron in the Circuit Courts, 116 MICH. L.

REV. 1, 33-34 (2017).

The frequency with which courts find ambiguity is

troubling. What was designed as a process for

interpreting truly ambiguous statutes—the rare

circumstance where the other tools of construction do

not work—has instead become commonplace. What

was essentially a last resort has instead become the

go-to strategy for agencies and courts. Courts

10

deferring to federal agencies on matters of

interpretation has become the norm, rather than the

exception. As a practical matter, this trend has

substantially altered our constitutional framework by

“wrest[ing] from Courts the ultimate interpretative

authority to ‘say what the law is,’ … and hand[ing] it

over to the Executive.” Michigan v. EPA, 576 U.S.

743, 761 (2015) (Thomas, J., concurring) (quoting

Marbury, 5 U.S. (1 Cranch) at 177).

The second part of the Chevron inquiry is equally

problematic. Chevron instructs that where a statute

“is silent or ambiguous” with respect to an issue, “the

question for the court is whether the agency’s answer

is based on a permissible construction of the statute.”

Chevron, 467 U.S. at 843 (emphasis added). Chevron

further explains that a court should show deference

to a permissible agency interpretation even if the

court itself would have interpreted the statute

differently. See id. at 843 n.11.

This Court should reconsider these principles.

Over time, their application has led courts—including

this Court—to substitute agency interpretations for

their own. Strict adherence to Chevron leads to courts

applying agencies’ “reasonable” interpretations even

if the courts themselves believe there are better

alternatives. See, e.g., Serano Lab’ys, 158 F.3d at

1321 (“[U]nder Chevron, courts are bound to uphold

an agency interpretation as long as it is reasonable—

regardless whether there may be other reasonable, or

even more reasonable, views.”) (emphasis added).

11

A particularly stark example is Nat’l Cable &

Telecommunications Ass’n v. Brand X Internet Servs.,

545 U.S. 967. In that case, this Court gave deference

to a Federal Communications Commission (FCC)

determination that cable broadband providers do not

provide “telecommunications service” as defined by

the Communications Act, 47 U.S.C. § 151 et seq. See

Brand X, 545 U.S. at 973-74. The Court showed

deference even though the FCC’s interpretation was

inconsistent with its own past practice. See id. at

981. 2 This Court also held that the Ninth Circuit had

erred by applying its own prior interpretation of the

statute, rather than the agency’s new interpretation.

The Court reasoned that “allowing a judicial

precedent to foreclose an agency from interpreting an

ambiguous statute” would impermissibly “allow a

court’s interpretation to override an agency’s.” Id. at

982. Thus, this Court found that the Court of Appeals

had erred because under Chevron “it is for agencies,

not courts, to fill statutory gaps.” Id. (citing Chevron,

467 U.S. at 843-44 & n.11).

Amicus curiae respectfully submits that such

extraordinary levels of deference are incongruent

with the separation of powers. “[T]he judicial power,

as originally understood, requires a court to exercise

its independent judgment in interpreting and

expounding upon the laws.” Perez v. Mortgage

Bankers Assn., 135 S. Ct. 1199, 1217 (2015) (Thomas,

J., concurring); see also Gutierrez-Brizuela v. Lynch,

2 This Court concluded that “[a]gency inconsistency is not a basis

for declining to analyze the agency’s interpretation under the

Chevron framework.” See Brand X, 545 U.S. at 981.

12

834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J.,

concurring) (expressing the concern that Chevron is a

“doctrine for the abdication of the judicial duty”).

Chevron addresses a legitimate concern by guarding

against the judiciary giving itself policymaking

powers properly left to the executive branch.

However, it “is the obligation of the Judiciary not only

to confine itself to its proper role, but to ensure that

the other branches do so as well.” City of Arlington,

Texas v. F.C.C., 569 U.S. 290, 327 (2013) (Roberts,

C.J., dissenting).

Significantly, showing strong deference to

administrative agencies is also inconsistent with

longstanding federal law. The Administrative

Procedure Act (“APA”) allows agencies to issue

binding regulations and requires courts to defer to

agency fact-finding. See 5 U.S.C. §§ 553, 556, 557,

706(2)(E); see also Buffington, 143 S. Ct. at 16

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

contrast, however, the APA specifically provides that

courts “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 (emphasis added).

The APA also instructs courts to set aside agency

actions, findings, or conclusions that are “in excess of

statutory jurisdiction, authority, or limitations,” 5

U.S.C. § 706(2)(C), or are “otherwise not in accordance

with law,” 5 U.S.C. § 706(2)(A). “On its face [the APA]

seems unequivocally to instruct courts to apply

independent judgment on all questions of law.”

13

Thomas W. Merrill, THE CHEVRON DOCTRINE: ITS RISE

AND FALL, AND THE FUTURE OF THE ADMINISTRATIVE

STATE 47 (Harvard Univ. Press 2002).

Whether one looks to the Constitution or the APA,

the outcome is the same. The separation of powers

requires a careful balancing act between the three

branches of government. Under Chevron and its

progeny, however, the scales tip to the executive

branch, to the detriment of the judiciary. This Court

should restore the proper balance and make clear that

it remains the job of the courts to “say what the law

is.” Marbury, 5 U.S. (1 Cranch) at 177.

II.

This Court Should Overrule Chevron Or

Scale Back Chevron-style Deference To

Respect The Courts’ Primary Role In

Interpreting Statutes.

This Court should overrule Chevron or, at the very

least, scale back the level of consideration given by

courts to agency interpretations of statutes.

Numerous States have already done this with respect

to state agency construction of statutes. These States

have often adopted or returned to a form of deference

similar to that set forth by this Court in Skidmore v.

Swift & Co., 323 U.S. 134 (1944). Under that

standard, the weight of an agency’s interpretation

depends upon its thoroughness, the validity of its

reasoning, and its consistency with prior and

subsequent agency behavior. See id. at 140. This

approach recognizes the executive branch’s proper

role while also respecting the separation of powers.

14

Amicus curiae respectfully submits that the Court

should consider the approach of these States when

determining whether to overrule Chevron. In

particular, amicus points this Court to the Ohio

Supreme Court’s well-reasoned decision in TWISM

Enterprises LLC v. State Bd. of Registration for

Professional Engineers & Surveyors, 2022-Ohio-4677.

A. The Ohio Supreme Court Has Adopted an

Approach to Deference That Properly

Respects the Separation of Powers.

Numerous States have already eliminated

Chevron-style deference. Amicus curiae respectfully

submits that these cases, and in particular the Ohio

Supreme Court’s decision in TWISM, should be given

consideration by this Court as it determines the

future of administrative deference.

In TWISM, the Ohio Supreme Court heard an

appeal of a state agency adjudication regarding the

requirements that a firm must meet in order to

provide engineering services in Ohio. See 2022-Ohio4677, at ¶ 1. The case turned on the construction of

Ohio Rev. Code § 4733.16(D), which sets forth those

requirements. Id. The intermediate court of appeals

looked to Chevron and applied its two-part test. See

id. at ¶¶ 15-16. The appellate court concluded that

the statute was ambiguous, and that the court

therefore “must defer” to the agency’s interpretation.

Id. at ¶ 16 (quoting TWISM Enterprises LLC v. State

Bd. of Registration for Professional Engineers &

15

Surveyors, 2021-Ohio-3665, ¶ 29 (Ohio App. 1st Dist.

2021)).

With this backdrop, the Ohio Supreme Court

determined to answer the “predicate question” of

“[w]hat deference, if any, should a court give to an

administrative agency’s interpretation of a statute?”

TWISM, 2022-Ohio-4677, at ¶ 2. The court discussed

Chevron and related state court precedents at length.

See id. at ¶¶ 18-28. It also took a “step back” in order

to “examine the matter in light of first principles.” Id.

at ¶ 29. These included the separation of powers and,

more specifically, protecting the courts’ authority to

render definitive interpretations of the law. See id. at

¶ 33.

The Ohio Supreme Court rejected all forms of

mandatory deference. Id. at ¶ 42. It reasoned that

when a court defers to an agency’s interpretation of

the law, “it hands to the executive branch the judicial

authority to say what the law is.” Id. ¶ 34 (quotations

omitted). The court held that such deference is “not

appropriate” in light of the separation of powers. Id.

at ¶ 42.

The Ohio Supreme Court also rejected Chevronstyle deference for a separate reason: showing

deference to an agency “would fly in the face of the

foundational principle that no man ought to be a

judge in his own cause.” Id. at ¶ 35 (quotations

omitted); see also The Federalist No. 10, at 74 (James

Madison) (Clinton Rossiter ed., 2003) (“No man is

allowed to be a judge in his own cause because his

16

interest would certainly bias his judgment ….”). 3

Over time, deference to agencies creates a systematic

bias in cases where administrative agencies are also

parties. TWISM, 2022-Ohio-4677, at ¶ 35 (citing

Philip Hamburger, Chevron Bias, 84 GEO. WASH. L.

REV. 1187, 1211 (2016)).

Significantly, the TWISM decision recognizes that

agency interpretations can be helpful to the courts.

The Ohio Supreme Court held that a court “may”

consider an agency interpretation when the statute is

truly ambiguous. TWISM, 2022-Ohio-4677, at ¶ 44

(emphasis in original). However, the weight a court

assigns to an agency’s interpretation must depend on

the persuasiveness of its reasoning, and not merely

the fact that it is offered by an administrative agency.

Id. at ¶ 45. The weight of an agency’s position may be

judged by its thoroughness, the validity of its

reasoning, and its consistency with earlier and later

pronouncements. Id. at ¶ 46 (citing Skidmore, 323

U.S. at 140).

Amicus curiae respectfully submits that the Ohio

Supreme Court’s reasoning applies equally here. The

court’s approach respects the informed judgment of

executive agencies, while protecting the proper role of

the courts. This approach is consistent with the

separation of powers and provides a workable

3 This Court has likewise long recognized the principle that “no

man can be a judge in his own case.” In re Murchison, 349 U.S.

133, 136 (1955); see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 388

(1798) (“[A] law that makes a man a Judge in his own cause …

is against all reason and justice ….”).

17

alternative to Chevron. It allows the government, and

regulated parties, to “benefit[] from expertise without

being ruled by experts.” Free Enterprise Fund, 561

U.S. at 499.

B. Numerous Other States Are Stepping

Back From Chevron-style Deference.

Ohio is not alone in its approach. A number of

other state supreme courts have adopted similar

standards in recent years. In 2020, for example, the

Arkansas Supreme Court addressed separation of

powers concerns stemming from Chevron-style

deference. See Myers v. Yamato Kogyo Co., Ltd., 2020

Ark. 135, 5-6 (Ark. 2020). The court held that it

“cannot” give “deference to agencies’ interpretations

of statutes” because doing so would “effectively

transfer[] the job of interpreting the law from the

judiciary to the executive.” Id. at 5. Accordingly,

Arkansas courts now review agency interpretations of

statutes de novo. Id. Where a statute is ambiguous,

those courts will consider an agency’s interpretation

as one of many available tools used to provide

guidance. Id. at 6.

The Wisconsin Supreme Court has likewise

“return[ed]” the “judicial power ceded by [its]

deference doctrine” to the state’s courts. Tetra Tech

EC, Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75,

¶ 84 (Wis. 2018). Wisconsin courts now review

administrative agencies’ conclusions of law de novo.

A court may consider an agency’s analysis, giving

“respectful, appropriate consideration to the agency’s

18

views” while the court exercises its independent

judgment. Id. ¶ 78 (discussing Wis. Stat. § 227.57(10),

which requires that “due weight” be accorded to an

agency’s experience and specialized knowledge).

Similarly, the Mississippi Supreme Court recently

announced that it has “abandon[ed] the old standard

of review giving deference to agency interpretations

of statutes.” King v. Mississippi Mil. Dep’t, 245 So. 3d

404, 408 (Miss. 2018). The court based its decision on

separation of powers concerns, and held that it was

time for state courts to “step fully into the role”

because the state constitution “provides for the courts

and the courts alone, to interpret statutes.” Id.

Numerous other States are in accord, and have

either moved away from Chevron-style deference or

declined to adopt it in the first instance. 4 Nor is this

4 See, e.g., North Carolina Acupuncture Licensing Bd. v. North

Carolina Bd. of Physical Therapy Examiners, 371 N.C. 697, 70001 (N.C. 2018) (holding that agency interpretations are not

binding and should be given weight according to their

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

2016 UT 34, ¶ 27 (Utah 2016) (holding that “agency decisions

premised on pure questions of law are subject to non-deferential

review”); Pickard v. Tennessee Water Quality Control Bd., 424

S.W.3d 511, 523 (Tenn. 2013) (“Notwithstanding the courts’

respect for administrative expertise, an agency’s interpretation

of its controlling statutes remains a question of law subject to de

novo review.”); Cochran v. State, Dep’t of Agr., Div. of Water Res.,

291 Kan. 898, 904 (Kan. 2011) (holding that Kansas courts “no

longer give[] deference to an agency’s interpretation of a

statute”); In re Complaint of Rovas Against SBC Michigan, 482

Mich. 90, 103, 754 N.W.2d 259, 267 (Mich. 2008) (declining to

adopt Chevron-style deference and instead holding that an

agency’s interpretation may be used as “an aid for discerning the

Legislature’s intent” but “is not binding on the courts”); Pub.

19

movement limited to the courts. The Arizona

legislature has eliminated Chevron-style deference by

statute. Under Ariz. Rev. Stat. § 12-910(F), in any

proceedings brought by or against a regulated party,

the courts must interpret statutory provisions or

rules adopted by an agency “without deference” to

agency determinations. Id. Likewise, under a

Tennessee law enacted in 2022, state courts

interpreting a state statute or rule “in a contested

case shall not defer to a state agency’s interpretation

of the statute or rule and shall interpret the statute

or rule de novo.” Tenn. Code Ann. § 4-5-326. In 2018,

Florida voters adopted a state constitutional

amendment imposing a similar policy. See FLA.

CONST. art. V, § 21 (“In interpreting a state statute or

rule, a state court … may not defer to an

administrative agency’s interpretation of such statute

or rule, and must instead interpret such statute or

rule de novo.”).

The level of deference used by the Court of Appeals

in this case is inconsistent with the separation of

powers. It intrudes on the courts’ responsibility as

primary interpreters of statutory text. Amicus curiae

respectfully requests that this Court join the Ohio

Supreme Court, and the courts of numerous other

States discussed supra, in rejecting mandatory

deference to agency interpretations. These States

have demonstrated that agency interpretations can

be given respectful and appropriate consideration

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

(“A reviewing court may accord due weight, but not defer, to an

agency interpretation of a statute administered by it.”).

20

without yielding the courts’ “ultimate interpretive

authority” to the executive branch. See Michigan, 576

U.S. at 761 (Thomas, J., concurring).

CONCLUSION

For the reasons set forth above, the decision of the

Court of Appeals should be reversed.

Respectfully submitted,

TONY LONG

OHIO CHAMBER OF

COMMERCE

34 South Third Street

Suite 100

Columbus, OH 43215

(614) 228-4201

tlong@ohiochamber.com

LARRY J. OBHOF, JR.

Counsel of Record

SHUMAKER, LOOP &

KENDRICK, LLP

41 South High Street

Suite 2400

Columbus, OH 43215

(614) 463-9441

lobhof@shumaker.com

Counsel for Amicus Curiae