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

Supreme Court briefJul 24, 2023

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No. 22-451

In the Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, ET AL.

Petitioners,

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 AMICI CURIAE STATE OF

WEST VIRGINIA AND 26 OTHER STATES

IN SUPPORT OF PETITIONERS

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Principal Deputy

Solicitor General

GRANT A. NEWMAN

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTION PRESENTED

Should the Court overrule Chevron—or at least clarify

that statutory silence on controversial powers expressly

but narrowly granted elsewhere in the statute does not

constitute an ambiguity requiring deference to the agency

on the scope of those powers?

TABLE OF CONTENTS

Question Presented .............................................................. I

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 4

Argument .............................................................................. 4

Chevron Causes Real Damage..................................... 4

A. Chevron Makes Rulemaking Boundless And

Unaccountable ........................................................ 5

B. Chevron Makes Rulemaking Too Damaging .... 11

II. Experience Shows That The Sky Will Not Fall

Without Chevron ......................................................... 24

Conclusion ........................................................................... 31

III

TABLE OF AUTHORITIES

Page(s)

Cases

Aqua Prod., Inc. v. Matal,

872 F.3d 1290 (Fed. Cir. 2017) ....................................... 29

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018) ............................................. 9

Bais Yaakov of Spring Valley v. FCC,

852 F.3d 1078 (D.C. Cir. 2017) ......................................... 9

Baldwin v. United States,

140 S. Ct. 690 (2020) ........................................................ 23

Bethlehem Steel Corp. v. Gorsuch,

742 F.2d 1028 (7th Cir. 1984) ......................................... 20

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ...................................................... 28

Bond v. United States,

564 U.S. 211 (2011) .......................................................... 23

Buffington v. McDonough,

143 S. Ct. 14 (2022) ........................................ 11, 13, 24, 29

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

Council, Inc.,

467 U.S. 837 (1984) .................................................... 1, 4, 8

Christensen v. Harris Cnty.,

529 U.S. 576 (2000) ............................................................ 1

TABLE OF AUTHORITIES

(continued)

Page(s)

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) .......................................................... 16

City of Arlington v. FCC,

569 U.S. 290 (2013) .............................................. 3, 6, 7, 12

Cty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) ...................................................... 11

Dep’t of Homeland Sec. v. Regents of the

Univ. of Cal.,

140 S. Ct. 1891 (2020) ...................................................... 23

Dep’t of Transp. v. Ass’n of Am. R.R.s,

575 U.S. 43 (2015) .................................................. 4, 11, 24

Egan v. Del. River Port Auth.,

851 F.3d 263 (3d Cir. 2017)............................................. 29

Egelhoff v. Egelhoff,

532 U.S. 141 (2001) .......................................................... 19

Fed. Trade Comm’n v. Ruberoid Co.,

343 U.S. 470 (1952) ............................................................ 2

Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd.,

561 U.S. 477 (2010) .................................................... 17, 30

Gonzales v. Oregon,

546 U.S. 243 (2006) ............................................................ 3

TABLE OF AUTHORITIES

(continued)

Page(s)

Grayned v. City of Rockford,

408 U.S. 104 (1972) .......................................................... 16

Gulf Fishermens Assoc. v. Nat’l Marine

Fisheries Serv.,

968 F.3d 454 (5th Cir. 2020) ............................................. 9

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ................................. 15, 30

Hillsborough Cnty. v. Automated Med.

Lab’ys, Inc.,

471 U.S. 707 (1985) .......................................................... 22

In re Compl. of Rovas Against SBC Mich.,

754 N.W.2d 259 (Mich. 2008) ......................................... 26

King v. Miss. Mil. Dep’t,

245 So. 3d 404 (Miss. 2018) ............................................. 26

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................................... 1, 8

MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,

512 U.S. 218 (1994) ............................................................ 8

Michigan v. EPA,

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

Murray v. Utah Lab. Comm’n,

308 P.3d 461 (Utah 2013) ................................................ 26

TABLE OF AUTHORITIES

(continued)

Page(s)

Negusie v. Holder,

555 U.S. 511 (2009) ............................................................ 9

NFIB v. OSHA,

142 S. Ct. 661 (2022) ........................................................ 30

OPM v. Richmond,

496 U.S. 414 (1990) .......................................................... 12

Pa. Dep’t of Pub. Welfare v. United States,

781 F.2d 334 (3d Cir. 1986)............................................. 20

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ........................................................ 8

Permann v. S.D. Dep’t of Lab.,

Unemployment Ins. Div.,

411 N.W.2d 113 (S.D. 1987) ............................................ 25

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2018) ........................................... 16

POM Wonderful LLC v. Coca-Cola Co.,

573 U.S. 102 (2014) ............................................................ 3

Pub. Water Supply Co. v. DiPasquale,

735 A.2d 378 (Del. 1999) ................................................. 25

Sackett v. EPA,

143 S. Ct. 1322 (2023) ...................................................... 13

Smiley v. Citibank (S.D.), N.A.,

517 U.S. 735 (1996) .......................................................... 20

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Solid Waste Agency of N. Cook Cnty. v. U.S.

Army Corps of Eng’rs,

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

Stark v. Wickard,

321 U.S. 288 (1944) ............................................................ 8

TWISM Enters., LLC v. State Bd. of

Registration for Pro. Eng’rs & Surveyors,

No. 21-1440, 2022 WL 17981386

(Ohio Dec. 29, 2022) ........................................................ 26

U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n,

140 S. Ct. 1837 (2020) ...................................................... 23

United States v. Lee Yen Tai,

185 U.S. 213 (1902) .................................................... 23, 28

United States v. Morrison,

529 U.S. 598 (2000) .......................................................... 22

Valent v. Comm’r of Soc. Sec.,

205 L. Ed. 2d 417 (6th Cir. 2019) ................................... 29

Vasquez v. Hillery,

474 U.S. 254 (1986) ............................................................ 3

Voices for Int’l Bus. & Educ., Inc. v. NLRB,

905 F.3d 770 (5th Cir. 2018) ........................................... 29

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Waterkeeper All. v. EPA,

853 F.3d 527 (D.C. Cir. 2017) ......................................... 29

Watters v. Wachovia Bank, N.A.,

550 U.S. 1 (2007) .............................................................. 22

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ............................................................ 23

Constitutional Provisions

FLA. CONST. art. V, § 21..................................................... 25

U.S. CONST. art. I, § 9, cl. 7 ............................................... 12

Statutes

ARIZ. REV. STAT. § 12-910(F) ............................................ 25

TENN. CODE § 4-5-326 ........................................................ 25

WIS. STAT. § 227.10(2g) ...................................................... 25

Other Authorities

Aaron Saiger, Chevron and Deference in State

Administrative Law,

83 FORDHAM L. REV. 555 (2014) .................................... 25

TABLE OF AUTHORITIES

(continued)

Page(s)

Abbe R. Gluck, What 30 Years of Chevron

Teach Us about the Rest of Statutory

Interpretation,

83 FORDHAM L. REV. 607, 612 (2014) .............................. 4

Ben Raker, Decentralization and Deference:

How Different Conceptions of Federalism

Matter for Deference and Why That Matters

for Renewable Energy,

47 ENV’T. L. REP. NEWS & ANALYSIS 10,963

(2017) ................................................................................ 21

Bradford R. Clark, Separation of Powers As A

Safeguard of Federalism,

79 TEX. L. REV. 1321 (2001) ..................................... 22, 23

Brett M. Kavanaugh, Fixing Statutory

Interpretation,

129 HARV. L. REV. 2118 (2016) .............................. 3, 9, 11

Brett M. Kavanaugh, Keynote Address: Two

Challenges for the Judge As Umpire:

Statutory Ambiguity and Constitutional

Exceptions,

92 NOTRE DAME L. REV. 1907 (2017) ............................. 8

Brian V. Payne, Wading Through the Murky

Waters of Chevron and Agency Jurisdiction,

53 WASHBURN L.J. 583 (2014) ......................................... 1

TABLE OF AUTHORITIES

(continued)

Page(s)

Cass R. Sunstein, On Overruling Chevron

(Nov. 2020) ....................................................................... 26

Cass R. Sunstein, Chevron As Law,

107 GEO. L.J. 1613 (2019) ............................................... 30

Cass R. Sunstein, Interpreting Statutes in the

Regulatory State,

103 HARV. L. REV. 405 (1989) .................................... 9, 12

Cass R. Sunstein, Law and Administration

After Chevron,

90 COLUM. L. REV. 2071 (1990)...................................... 11

Catherine M. Sharkey, Inside Agency

Preemption,

110 MICH. L. REV. 521 (2012) ........................................ 19

Chris Bennett, Chevron deference: Strangling

farmers one regulation at a time?,

FENCE POST (Oct. 24, 2017) ............................... 14, 15, 17

CLYDE WAYNE CREWS, JR., TEN THOUSAND

COMMANDMENTS: AN ANNUAL SNAPSHOT OF

THE FEDERAL REGULATORY STATE, 2022 ED.,

COMPETITIVE ENTERPRISE INSTITUTE 92-93

(2022) ........................................................................ 5, 6, 14

Cynthia R. Farina, Statutory Interpretation

and the Balance of Power in the

Administrative State,

89 COLUM. L. REV. 452 (1989) ....................................... 10

TABLE OF AUTHORITIES

(continued)

Page(s)

D. Chambers, C.A. Collins, A. Krause, How Do

Federal Regulations Affect Consumer

Prices? Analysis of the Regressive

Effects of Regulation,

180 PUB. CHOICE 57, 59 (2019) ...................................... 14

Damien J. Marshall, The Application of

Chevron Deference in Regulatory

Preemption Cases,

87 GEO. L.J. 263 (1998) ................................................... 18

Dan Bosch, The Biden WOTUS: Breadth and

Uncertainty, AMERICAN ACTION FORUM:

INSIGHT (Nov. 19, 2021) ................................................. 15

Daniel Ortner, The End of Deference: The

States Have Rejected Deference,

YALE J. ON REG.: NOTICE & COMMENT

(Mar. 24, 2020) ................................................................. 27

E. Donald Elliott, Chevron Matters: How the

Chevron Doctrine Redefined the Roles of

Congress, Courts and Agencies in

Environmental Law,

16 VILL. ENV’T. L.J. 1 (2005) ........................................... 2

Elena Kagan, Presidential Administration,

114 HARV. L. REV. 2245 (2001) ........................................ 6

Ernest A. Young, Executive Preemption,

102 NW. U. L. REV. 869 (2008) ....................................... 23

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

Erwin Chemerinsky, A Paradox Without A

Principle: A Comment on the Burger

Court’s Jurisprudence in Separation

of Powers Cases,

60 S. CAL. L. REV. 1083 (1987) ......................................... 7

Executive Order No. 12866, Regulatory

Planning and Review,

58 Fed. Reg. 51,735 (Sept. 30, 1993) .............................. 5

Gary Lawson, The Ghosts of Chevron Present

and Future,

103 BOSTON UNIV. L. REV. (forthcoming 2023) ............. 3

James L. Huffman, The Impact of Regulation

on Small and Emerging Businesses,

4 J. SMALL & EMERGING BUS. L. 307 (2000) ................ 18

Jason Bailey, Clean Water Act, Section 404

Applicants: May the Odds Be Ever in

Your Favor,

3 AM. U. BUS. L. REV. 457 (2014)................................... 16

Jeffrey S. Sutton & John L. Rockenbach,

Respect and Deference in American

Administrative Law,

102 B.U. L. REV. 1937 (2022) ......................................... 27

Jon D. Michaels, An Enduring, Evolving

Separation of Powers,

115 COLUM. L. REV. 515 (2015)........................................ 7

XIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Jonathan Masur, Judicial Deference and the

Credibility of Agency Commitments,

60 VAND. L. REV. 1021 (2007) ........................................ 15

Jonathan Turley, Recess Appointments in the

Age of Regulation,

93 B.U. L. REV. 1523 (2013) ......................................... 6, 7

Kate Sheppard, EPA Chief Says She’s Not

Worried About Supreme Court

Mercury Ruling,

HUFFINGTON POST (July 7, 2015).................................. 16

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts,

116 MICH. L. REV. 1 (2017) ............................................ 10

Kent Barnett, Improving Agencies’ Preemption

Expertise with Chevmore Codification,

83 FORDHAM L. REV. 587 (2014) .................................... 19

Linda Jellum, Chevron’s Demise: A Survey of

Chevron from Infancy to Senescence,

59 ADMIN. L. REV. 725 (2007) ........................................ 29

Luke Phillips, Chevron in the States?

Not So Much,

89 MISS. L.J. 313 (2020) ............................................ 26, 27

XIV

TABLE OF AUTHORITIES

(continued)

Page(s)

Michael Pappas, No Two-Stepping in the

Laboratories: State Deference Standards and

Their Implications for Improving the

Chevron Doctrine,

39 MCGEORGE L. REV. 977 (2008) ................................. 26

Nathan Alexander Sales & Jonathan H. Adler,

The Rest Is Silence: Chevron Deference,

Agency Jurisdiction, and Statutory Silences,

2009 U. ILL. L. REV. 1497 (2009) ................................... 12

Nina A. Mendelson, A Presumption Against

Agency Preemption,

102 NW. U. L. REV. 695 (2008) ................................. 19, 20

Paul R. Noe, Smarter Regulation for the

American Manufacturing Economy, in IND.

UNIV. SCH. OF POL’Y AND ENV’T. AFFS.,

WHAT THE NEXT PRESIDENT SHOULD DO

ABOUT U.S. MANUFACTURING: AN AGENDA

FOR THE FIRST 100 DAYS 29 (2016)................................ 14

PETER J. WALLISON,

JUDICIAL FORTITUDE: THE LAST CHANCE TO

REIN IN THE ADMINISTRATIVE STATE

(1st ed. 2018) ...................................................................... 7

TABLE OF AUTHORITIES

(continued)

Page(s)

Philip Hamburger, Chevron Bias,

84 GEO. WASH. L. REV. 1187 (2016) ................................ 8

Randall S. Guttery, et al., Federal Wetlands

Regulation: Restrictions on the Nationwide

Permit Program and the Implications for

Residential Property Owners,

37 AM. BUS. L.J. 299 (2000) ............................................ 14

Richard J. Pierce, Jr., Chevron and Its

Aftermath: Judicial Review of Agency

Interpretations of Statutory Provisions,

41 VAND. L. REV. 301 (1988) .......................................... 10

Richard J. Pierce, Jr., Is Chevron Deference

Still Alive?,

REGUL. REV. (July 14, 2022) .......................................... 29

Richard J. Pierce, Jr., The Combination of

Chevron and Political Polarity Has

Awful Effects,

70 DUKE L.J. ONLINE 91 (2021) .............................. 11, 15

Robert A. Mikos, Can the States Keep Secrets

from the Federal Government?,

161 U. PA. L. REV. 103 (2012) ........................................ 20

Robert W. Hahn, Achieving Real

Regulatory Reform,

1997 U. CHI. LEGAL F. 143 (1997) ................................. 14

XVI

TABLE OF AUTHORITIES

(continued)

Page(s)

Scott A. Keller, How Courts Can Protect State

Autonomy from Federal Administrative

Encroachment,

82 S. CAL. L. REV. 45 (2008) ..................................... 18, 22

Sierra B. Weaver, Local Management of

Natural Resources: Should Local

Governments Be Able to Keep Oil Out?,

26 HARV. ENV’T. L. REV. 231 (2002).............................. 21

Stephen Breyer, Judicial Review of Questions

of Law and Policy,

38 ADMIN. L. REV. 363 (1986) ........................................ 10

Stephen M. Johnson, The Brand X Effect:

Declining Chevron Deference for EPA and

Increased Success for Environmental Groups

in the 21st Century,

69 CASE W. RES. L. REV. 65 (2018) ............................... 10

THE FEDERALIST NO. 51 ................................................... 13

THOMAS SOWELL,

A CONFLICT OF VISIONS: IDEOLOGICAL

ORIGINS OF POLITICAL STRUGGLES (2007) ............ 12, 13

Thomas W. Merrill & Kristin E. Hickman,

Chevron’s Domain,

89 GEO. L.J. 833 (2001) ..................................................... 1

XVII

TABLE OF AUTHORITIES

(continued)

Page(s)

Thomas W. Merrill, The Story of Chevron: The

Making of an Accidental Landmark,

66 ADMIN. L. REV. 253 (2014) ...................................... 1, 9

Todd E. Pettys, Competing for the People’s

Affection: Federalism’s Forgotten

Marketplace,

56 VAND. L. REV. 329 (2003) .......................................... 22

U.S. CHAMBER OF COM. FOUND.,

THE REGULATORY IMPACT ON SMALL

BUSINESS: COMPLEX. CUMBERSOME. COSTLY.

(Mar. 2017) ................................................................. 17, 18

W. MARK CRAIN & NICOLE V. CRAIN,

THE COST OF FEDERAL REGULATION TO THE

U.S. ECONOMY, MANUFACTURING, AND

SMALL BUSINESS (2014) ................................................. 17

William N. Eskridge, Jr. & Lauren E. Baer, The

Continuum of Deference: Supreme Court

Treatment of Agency Statutory

Interpretations from Chevron to Hamdan,

96 GEO. L.J. 1083 (2008) ................................................. 29

INTRODUCTION AND

INTERESTS OF AMICI CURIAE

In a quiet footnote some 40 years ago, the Court

unanimously reminded everyone that courts are “the final

authority on issues of statutory construction.” Chevron,

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

843 n.9 (1984). And it instructed judges to “discern”

Congress’s “intention” when reviewing an agency’s

interpretation by “employing traditional tools of statutory

construction.” Id. Many might be surprised to learn that

statements like these come from Chevron. The language

sounds too much like the “claim to judicial supremacy over

agency interpretations of the law” that “pre-Chevron

courts” had asserted for decades before. Brian V. Payne,

Wading Through the Murky Waters of Chevron and

Agency Jurisdiction, 53 WASHBURN L.J. 583, 587 (2014).

Yet Justice Stevens—who wrote Chevron—regarded the

decision as “nothing more or less” than “simply a

restatement of existing law.” Thomas W. Merrill, The

Story of Chevron: The Making of an Accidental

Landmark, 66 ADMIN. L. REV. 253, 275 & n.77 (2014); see

also, e.g., Christensen v. Harris Cnty., 529 U.S. 576, 596

(2000) (Breyer, J., dissenting) (“Chevron made no relevant

change.”).

If only. Rather than continuing to offer their “best

independent judgment of [each] law’s meaning,” courts

began using Chevron as an “excuse[] … to abdicate their

job of interpreting the law.” Kisor v. Wilkie, 139 S. Ct.

2400, 2426 (2019) (Gorsuch, J., concurring in the

judgment). Courts and scholars alike came to believe that

Chevron had “effected a fundamental transformation in

the relationship between courts and agencies.” Thomas

W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89

GEO. L.J. 833, 834 (2001). By giving “more policy

discretion and law-making authority to administrative

agencies,” the decision changed “the nature of American

government without the benefit of a constitutional

amendment.” E. Donald Elliott, Chevron Matters: How

the Chevron Doctrine Redefined the Roles of Congress,

Courts and Agencies in Environmental Law, 16 VILL.

ENV’T. L.J. 1, 5 (2005). Whatever limited reach the Court

might have originally intended for it, Chevron quickly

stretched to its furthest bounds.

That’s not overstatement. In ignoring Chevron’s

words of caution about the judicial role, courts have done

more than dent a little constitutional doctrine. Even

before Chevron hit the books, federal agencies had formed

“a veritable fourth branch of the Government.” Fed.

Trade Comm’n v. Ruberoid Co., 343 U.S. 470, 487 (1952)

(Jackson, J., dissenting). “[M]ore values” were “affected

by their decisions than by those of all the courts.” Id. And

that shift generated more “important consequences on

personal rights” than most could have predicted. Id.

Chevron made things worse—exchanging meaningful

judicial review for reflexive agency deference. It also gave

this growing “fourth branch” an incentive to grow bigger

and quicker than before. And sure enough, agencies

expanded fast. They abused their power, and real people

suffered real harm.

Petitioners’ case puts these realities front and center.

A cash-strapped federal agency, relying on statutory

silence, asserted power to force the family-owned and

-operated fisheries it regulates to fund the agency’s

invasive inspection program or else stop fishing. Seeing

nothing like this tax-and-spend scheme in the statute the

agency said it was enforcing, the families sought relief in

federal court. Yet leaning on Chevron, two courts sided

with the agency. Only one judge out of four recognized

that “[a]n agency may not reorder federal statutory rights

without congressional authorization.” POM Wonderful

LLC v. Coca-Cola Co., 573 U.S. 102, 120 (2014); see

Pet.App.21-37 (Walker, J., dissenting). The fishers were

out of luck.

This sort of regulatory abuse happens too often, so the

Amici States implore the Court to set things right. The

only way to recover from Chevron is to scrap Chevron—

all of it. Until that’s done, “the danger posed by the

growing power of the administrative state,” City of

Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J.,

dissenting), will loom larger, and Chevron’s failure to

provide the “stability [and] predictability” needed to save

it will grow starker, Vasquez v. Hillery, 474 U.S. 254, 26566 (1986). These dangers “cannot be dismissed” because

it is easier for courts to punt if a law “is ambiguous and an

administrative official is involved.” Gonzales v. Oregon,

546 U.S. 243, 258 (2006) (cleaned up); see also Gary

Lawson, The Ghosts of Chevron Present and Future, 103

BOSTON UNIV. L. REV. (forthcoming 2023) (explaining

that Chevron’s expanded scope came from lower courts

who “thought it would make their lives easier”). Whatever

the motive, a “judicially orchestrated shift of power from

Congress to the Executive Branch” only “invites” more

agency “aggressi[on].” Brett M. Kavanaugh, Fixing

Statutory Interpretation, 129 HARV. L. REV. 2118, 215051 (2016).

Our constitutional structure is durable enough to move

forward without Chevron. And the States have been using

workable approaches to de novo agency review for

decades, to great effect. It’s time for the Court to pull at

Chevron’s quiet footnote again—and leave the rest

behind.

SUMMARY OF ARGUMENT

I. Chevron has inflicted real and lasting damage on

the States, on our citizens and businesses, on our

“separation of powers,” and, ultimately, on “our

Constitution and the individual liberty it protects.” Dep’t

of Transp. v. Ass’n of Am. R.R.s, 575 U.S. 43, 91 (2015)

(Thomas, J., concurring in the judgment). An accurate

accounting of this harm leads to only one conclusion:

Chevron must go.

II. If it does, the sky will not fall. Courts can reassume

their place as experts and “the final authority on issues of

statutory construction.” Chevron, 467 U.S. at 843 n.9.

And the other branches will have reset incentives to better

work to solve our most pressing problems. This return to

the way it should have been can be done. It already has

been—by this Court effectively in the past few years and

in many States in the few decades before.

The harms from keeping Chevron are far worse than

any risk we assume abandoning it. The Court should act.

ARGUMENT

Chevron Causes Real Damage.

Chevron has spelled trouble from the moment it hit the

U.S. Reports. Climbing administrative costs, warped

regulatory incentives, a power asymmetry between

regulated citizens and their regulators—these features

have defined the four decades we’ve spent with “the most

cited administrative law case in history.” Abbe R. Gluck,

What 30 Years of Chevron Teach Us about the Rest of

Statutory Interpretation, 83 FORDHAM L. REV. 607, 612

(2014). The citations need to stop. Chevron’s harms are

as real as they are widespread. This case presents an

opportunity to stop them from spilling forward, and the

Court should take it.

A. Chevron Makes Rulemaking Boundless And

Unaccountable.

1. Federal regulations’ numbers are at an all-time

high. In Chevron’s forty years, federal agencies have

promulgated over 156,000 final rules spanning 2.5 million

pages in the Federal Register. CLYDE WAYNE CREWS,

JR., TEN THOUSAND COMMANDMENTS: AN ANNUAL

SNAPSHOT OF THE FEDERAL REGULATORY STATE, 2022

ED., COMPETITIVE ENTERPRISE INSTITUTE 92-93 (2022),

https://bit.ly/43WCKaS. The rules agencies published

over the last decade—40,000—have outpaced the laws

that Congress enacted at a rate of 26-to-1. Id. at 7, 45.

And about 10% of those regulations were “significant

rules.”

Id. at 45.

That designation means they

substantially affected the economy or key government

programs, interfered with another agency’s ambit, or

“raise[d] novel legal or policy issues.” Executive Order

No. 12866, Regulatory Planning and Review, 58 Fed.

Reg. 51,735 (Sept. 30, 1993).

This flurry of activity—even where well-intentioned—

imposes some serious costs. Agencies spent an estimated

$78 billion to administer rules in 2020. Crews, supra, at 7.

And that figure is a sliver of the $1.9 trillion in overall costs

that some estimate run with federal regulations each year.

Id. at 6, 33 (“recogniz[ing] that significant figures in

mathematical terms are indeterminate,” this estimate is

an “amalgam of GDP losses and compliance costs derived

from available official data and other accessible sources,”

including congressional cost analyses, cost-benefit

reports, and social expense estimates). In perspective:

that number “rivals individual corporate federal income

tax receipts,” tops the GDP of all but the seven biggest

economies in the world, id. at 6, 37, and matches the size

of the massive American Rescue Plan Act of 2021 each

year.

This state of play was unimaginable to the Framers.

They “could hardly have envisioned today’s vast and

varied federal bureaucracy and the authority

administrative agencies now hold over our economic,

social, and political activities.” City of Arlington, 569 U.S.

at 313 (Roberts, C.J., dissenting) (cleaned up). Perhaps

for that reason, the Constitution says nothing about the

existence of administrative agencies. See also Jonathan

Turley, Recess Appointments in the Age of Regulation, 93

B.U. L. REV. 1523, 1555 (2013) (“While the Framers were

familiar with British ministries’ and colonies’ charter

governments, the writings on government that Framers

like Madison were familiar with did not discuss anything

that even approximates the administrative state we have

today.”).

Unlike today’s freewheeling administrative state, the

first of our “nation’s regulatory statutes … contain[ed]

detailed and limited grants of authority to administrative

bodies.” Elena Kagan, Presidential Administration, 114

HARV. L. REV. 2245, 2255 (2001) (emphasis added). Early

Congresses also “fought regularly with departments on

domestic and international matters” that involved the

President’s policy directives “being carried out by his

immediate cabinet subordinates.” Turley, supra, at 1556.

But over time, “the rise of the regulatory state and the

need for administrative discretion” undermined the “strict

limits on congressional delegation of power” the Framers

had contemplated. Erwin Chemerinsky, A Paradox

Without A Principle: A Comment on the Burger Court’s

Jurisprudence in Separation of Powers Cases, 60 S. CAL.

L. REV. 1083, 1107 (1987).

Today, “the administrative state has … grow[n] out of

control.” PETER J. WALLISON, JUDICIAL FORTITUDE:

THE LAST CHANCE TO REIN IN THE ADMINISTRATIVE

STATE 134 (1st ed. 2018). The Framers may have

“considered Congress the most dangerous branch,” but

modern agencies “answerable to the President” now make

the Executive “the constitutional institution to reckon

with.”

Jon D. Michaels, An Enduring, Evolving

Separation of Powers, 115 COLUM. L. REV. 515, 528-29

(2015). In truth, neither the President nor Congress can

“truly monitor the millions of agency decisions made each

year.” Turley, supra, at 1556-57. And the functional

agency autonomy that results “creates questions of

accountability in a system of checks and balances.” Id.;

see City of Arlington, 569 U.S. at 315 (Roberts, C.J.,

dissenting) (“[T]he danger posed by the growing power of

the administrative state cannot be dismissed.”).

2. Let’s be clear: The States are not asking the Court

to fix where we’ve ended up by doing away with

regulations or agencies. An unfounded ban like that would

be neither practical nor rational. We do, though, question

the oft-unstated notion that more regulation is necessarily

better. The space between these poles is important; it’s

the ground on which courts should referee regulatory

disputes. But Chevron feeds regulatory growth because

it all-but leave agencies to their own devices to decide how

far they can go—in other words, the courts have left the

field.

The judiciary’s role in this space should have always

stayed the same: Having the final say on what the law is,

even when an agency is involved. It has always been true

that “interpreting statutes and determining agency

jurisdiction and substantive agency powers should accord

with constitutional separation-of-powers principles and

the function and province of the Judiciary.” Pereira v.

Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J.,

concurring); see also generally Philip Hamburger,

Chevron Bias, 84 GEO. WASH. L. REV. 1187 (2016)

(explaining how constitutional requirements of due

process and independent judgment conflict with Chevron);

cf. Kisor, 139 S. Ct. at 2423 (“[A]dministrative law

doctrines must take account of the far-reaching influence

of agencies and the opportunities such power carries for

abuse.”). Those principles and function contemplate

active courts. For decades, “determining the limits of

statutory grants of authority” to agencies has remained “a

judicial function.” Stark v. Wickard, 321 U.S. 288, 310

(1944). And courts have a responsibility, too, to make sure

that agencies “not only [respect] the ultimate purposes

Congress has selected, but … the means it has deemed

appropriate, and prescribed, for the pursuit of those

purposes.” MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,

512 U.S. 218, 231 n.4 (1994).

Of course, Congress might leave “gap[s] for the agency

to fill,” Chevron, 467 U.S. at 843, with rules that track

Congress’s “policy decision[s],” Statutory Interpretation,

supra, at 2152. When Congress “assign[s] an agency”

policy choices in this way, then “courts should be hesitant

to second-guess.” Brett M. Kavanaugh, Keynote Address:

Two Challenges for the Judge As Umpire: Statutory

Ambiguity and Constitutional Exceptions, 92 NOTRE

DAME L. REV. 1907, 1912-13 (2017). But it’s a risky

proposition to assume an actionable gap whenever an

agency spots a possible statutory ambiguity. Chevron, 467

U.S. 843-44 (noting the distinction between express and

implied agency delegations); see also Keynote Address,

supra, at 1912 (because of “the limits of language,”

eliminating ambiguity altogether “is an impossible goal to

achieve”).

Chevron’s footnote nine says little more than all that.

So reading this footnote robustly—and applying the

principles it espouses—might have kept our separation of

powers on an even keel. Instead, four decades on we have

a collective misapprehension of Chevron’s “restatement of

existing law” to deal with. Accidental Landmark, supra,

at 275 & n.77.

Although courts started by deferring “to the agency’s

reasonable gap-filling decisions,” many have ended up

“ceas[ing] to mark the bounds of delegated agency

choice.” Negusie v. Holder, 555 U.S. 511, 531 (2009)

(Stevens, J., concurring in part and dissenting in part).

Now courts approach agency-interpreted statutes

“backwards.” Bais Yaakov of Spring Valley v. FCC, 852

F.3d 1078, 1082 (D.C. Cir. 2017). How? By largely

forgetting that “Congress does not delegate authority

merely by not withholding it.” Gulf Fishermens Assoc. v.

Nat’l Marine Fisheries Serv., 968 F.3d 454, 456 (5th Cir.

2020). And by treating agency choices as de facto “good

policy,” courts move from “interpreting” statutes to

“creating federal common law.” Cass R. Sunstein,

Interpreting Statutes in the Regulatory State, 103 HARV.

L. REV. 405, 422 (1989). After all, discerning “what is

reasonable or appropriate” is “less a matter of pure

interpretation than of common law-like judging.”

Statutory Interpretation, supra, at 2120 n.12.

All told, Chevron has changed the way courts work.

Courts now “rush[] to find statutes ambiguous” instead of

performing the heavy lift of “a full interpretive analysis”

with its large suite of canons, tools, and presumptions.

Arangure v. Whitaker, 911 F.3d 333, 336, 339 (6th Cir.

2018). And they find statutes ambiguous in the “vast

majority” of cases—about 7 of every 10—and then uphold

the agency’s view 93% of the time. Kent Barnett &

Christopher J. Walker, Chevron in the Circuit Courts, 116

MICH. L. REV. 1, 33 (2017). Even when matched against

co-equal sovereign States, Chevron delivers wins for the

federal government most of the time. See Stephen M.

Johnson, The Brand X Effect: Declining Chevron

Deference for EPA and Increased Success for

Environmental Groups in the 21st Century, 69 CASE W.

RES. L. REV. 65, 116 n.42 (2018) (analyzing challenges to

EPA actions over a 16-year period and finding that EPA

prevailed 66% of the time when States sued alone).

With the deck stacked this way, a long-term shift of

interpretive power from courts to the Executive is no

surprise. See Michigan v. EPA, 576 U.S. 743, 761 (2015)

(Thomas, J., concurring). Literally: Chevron’s supporters

welcomed the decision as a “dramatic improvement”

because it “transformed” the way courts approach

“agency interpretations of statutory provisions.” Richard

J. Pierce, Jr., Chevron and Its Aftermath: Judicial

Review of Agency Interpretations of Statutory

Provisions, 41 VAND. L. REV. 301, 302 (1988). Critics too

(admittedly even less surprisingly) called it a “siren’s

song” that “fundamental[ly] alter[ed]” “our constitutional

conception of the administrative state.” Cynthia R.

Farina, Statutory Interpretation and the Balance of

Power in the Administrative State, 89 COLUM. L. REV.

452, 456 (1989). Skeptics also worried that it could create

a “seriously overbroad, counterproductive and sometimes

senseless” “blanket rule.” Stephen Breyer, Judicial

Review of Questions of Law and Policy, 38 ADMIN. L.

REV. 363, 373 (1986).

Forty years later, it turns out all of them were right.

Chevron has “morph[ed] into something truly

revolutionary.” Buffington v. McDonough, 143 S. Ct. 14,

16-18 (2022) (Gorsuch, J., dissenting from denial of

certiorari). But unfortunately, it’s the critics and skeptics

who predicted better what consequences that change

would bring. Even some of the “strongest supporters of

Chevron deference” in the early years have come to

recognize that it is “a source of extreme instability in our

legal system.” Richard J. Pierce, Jr., The Combination of

Chevron and Political Polarity Has Awful Effects, 70

DUKE L.J. ONLINE 91, 92 (2021). And for “a pillar in

administrative law” as strong as Chevron, Cass R.

Sunstein, Law and Administration After Chevron, 90

COLUM. L. REV. 2071, 2075 (1990), “extreme” may be an

understatement.

B. Chevron Makes Rulemaking Too Damaging.

The consequences from this judicial swing and

government-always-wins arrangement are serious.

1. For starters, by making agencies near-invincible,

broad deference motivates them to wield vast “power to

make” and “enforce” laws. Ass’n of Am. R.R.s, 575 U.S.

at 91 (Thomas, J., concurring in the judgment). They push

expansive constructions of their governing statutes that

bind our citizens with “crushing” “criminal penalties and

steep civil fines” for even inadvertent regulatory

violations. Cty. of Maui v. Haw. Wildlife Fund, 140 S. Ct.

1462, 1489 (2020) (Alito, J., dissenting). Indeed, Chevron

“invites an extremely aggressive executive branch

philosophy of pushing the legal envelope” by “seeking to

squeeze its policy goals into ill-fitting statutory

authorizations and restraints.” Statutory Interpretation,

supra, at 2150-51. And it encourages agencies to try

power grabs that affect larger classes of people or greater

segments of an industry, not just “a few discrete players.”

Nathan Alexander Sales & Jonathan H. Adler, The Rest

Is Silence: Chevron Deference, Agency Jurisdiction, and

Statutory Silences, 2009 U. ILL. L. REV. 1497, 1559-60

(2009).

Chevron encourages aggressive agency policymaking

like this more than on the front end. Agencies also count

on its judicial shield on the back end. Petitioners’ case

illustrates this concept in neon lights: An agency

arrogated power to itself by imposing levies on the entities

it regulates in contravention of its authorizing statute and,

at least arguably, the Constitution. See U.S. CONST. art.

I, § 9, cl. 7 (Appropriations Clause). Yet the lower courts

found not one but two ways to approve that power play

under Chevron. See Pet.App.61-62 (district court siding

with the agency at Step One), 13-16 (divided D.C. Circuit

panel siding with the agency at Step Two). Rulings like

these speak loud. Federal agency “[f]oxes” can build and

then “guard henhouses” they forced the hens to buy,

Interpreting Statutes in the Regulatory State, supra, at

446—no “straightforward and explicit command” from

Congress needed, OPM v. Richmond, 496 U.S. 414, 424

(1990). By condoning these tactics, Chevron has become

“a powerful weapon in an agency’s regulatory arsenal.”

City of Arlington, 569 U.S. at 314 (Roberts, C.J.,

dissenting).

Beyond all this, the Executive Branch’s policy goals

change every four to eight years, compounding the effects

of agency overreach. A new administration’s changes are

rarely fractional.

They often reflect “not merely

differences of visions,” but “conflicts of visions.” THOMAS

SOWELL, A CONFLICT OF VISIONS: IDEOLOGICAL ORIGINS

OF POLITICAL STRUGGLES 35 (2007) (emphasis added).

Each new guard sees the world differently and thus

reaches “sharply divergent, often diametrically opposed,

conclusions” on a wide range of issues. Id. Straight away,

it seems, they start to “undo the ambitious work of their

predecessors” by “proceed[ing] in the opposite direction

with equal zeal.” Buffington, 143 S. Ct. at 20 (Gorsuch, J.,

dissenting from denial of certiorari).

In just the past 15 years, for example, EPA and the

Army Corps of Engineers have redrawn the boundary

lines for the “waters of the United States” that are subject

to Clean Water Act regulation at least four times. The

latest iteration is set to change again considering this

Court’s recent ruling in Sackett v. EPA, 143 S. Ct. 1322

(2023). By creating a judicial ecosystem that could

plausibly defer to all these iterations, Chevron

“encourage[s] executive agents not to aspire to fidelity to

the statutes Congress has adopted, but to do what they

might while they can.” Buffington, 143 S. Ct. at 20

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

In other words, each wave of bureaucrats sprints to the

fringe of what they think the courts will allow—making

new law instead of implementing different policies within

an agreed-upon statutory range. Resetting that power

balance requires a judiciary that can step in. And that’s

how the Framers designed the separation of powers to

work: to prevent “abuses of government” by ensuring that

one branch’s “[a]mbition” is “made to counteract” the

others’. THE FEDERALIST NO. 51 (J. Madison). Yet

Chevron practically guarantees that ever-more-ambitious

agency ploys—and the whipsaw effect that comes with

them—will continue and probably get worse.

2. Our States’ residents pay the price for this

dysfunction. A multi-trillion-dollar annual regulatory

burden might be of less concern if regulation had only

upside. But “[p]oorly designed regulations may cause

more harm than good; stifle innovation, growth, and job

creation; waste limited resources; undermine sustainable

development; and erode the public’s confidence in our

government.” Paul R. Noe, Smarter Regulation for the

American Manufacturing Economy, in IND. UNIV. SCH.

OF POL’Y AND ENV’T. AFFS., WHAT THE NEXT PRESIDENT

SHOULD DO ABOUT U.S. MANUFACTURING: AN AGENDA

FOR

THE

FIRST 100 DAYS 29, 29 (2016),

https://bit.ly/3JC756n. By “distort[ing] the marketplace

or pick[ing] winners and losers among companies or

technologies,”

even

“well-intended”

rulemaking

“invariably cause[s] unintended harms.” Id.

More specifically, the annual per-household cost of

federal regulation exceeds everything but housing in the

average American budget. Crews, supra, at 6, 37. On

average, consumers face nearly 1% price increases for

every 10% increase in overall federal regulation. D.

Chambers, C.A. Collins, A. Krause, How Do Federal

Regulations Affect Consumer Prices? Analysis of the

Regressive Effects of Regulation, 180 PUB. CHOICE 57, 59

(2019), https://bit.ly/3rxlH0Q. These “costs tend to be

hidden from view,” Robert W. Hahn, Achieving Real

Regulatory Reform, 1997 U. CHI. LEGAL F. 143 (1997)—

making it harder for the public to respond.

Property values often take a particular hit when

federal regulation touches land or buildings in even small

ways. Here again the Clean Water Act provides a good

example, as wetlands regulation can substantially devalue

bare land and improved properties alike. See Randall S.

Guttery, et al., Federal Wetlands Regulation:

Restrictions on the Nationwide Permit Program and the

Implications for Residential Property Owners, 37 AM.

BUS. L.J. 299, 325 (2000); see also Chris Bennett, Chevron

deference: Strangling farmers one regulation at a time?,

FENCE POST (Oct. 24, 2017), https://bit.ly/3NIcDhg (citing

Chevron’s “tremendous influence on producer activity and

private land ownership”). And landowners must either

mount expensive—and usually losing, see above—legal

challenges, or pony up for pricey water permits or

penalties. See, e.g., Dan Bosch, The Biden WOTUS:

Breadth and Uncertainty, AMERICAN ACTION FORUM:

INSIGHT (Nov. 19, 2021), https://bit.ly/3E4RgkT

(describing how proposed rule would “cost between $113

and $276 million for increased permit and mitigation costs

on an annualized basis”); Bennett, supra (describing

enormous fines and penalties resulting from permitless

farming in an area with a small, temporary vernal pool).

Multiply these harms across the thousands of statutes

that agencies administer, and the full sense of the problem

comes into sharper focus.

3. The States’ businesses pay, too. For them, the

specter of regulatory swings can loom over investment

decisions until the whipsaw puts them in outright

jeopardy. A risk-heavy status quo scares investors away

with the possibility of “reduce[d] or eliminate[d] …

return[s]” due to “[r]adical and vacillating changes in [the]

law.” Awful Effects, supra, at 92, 99; see also Jonathan

Masur, Judicial Deference and the Credibility of Agency

Commitments, 60 VAND. L. REV. 1021, 1041 (2007)

(“[P]re-existing programs become unworkable and new

projects become necessary.”). Then, when someone

challenges those regulations, businesses must guess

whether the agency’s action will be upheld. And at all

times, they must “remain alert to the possibility that the

agency will reverse its current view 180 degrees” and

“still prevail.” Gutierrez-Brizuela v. Lynch, 834 F.3d

1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring).

At best, the continuous state of flux means that shortand long-term plans, projects, and investments are put on

hold until a seemingly stable framework emerges. At

worst, businesses are not able to “steer between”

changing definitions of what is “lawful and unlawful

conduct.” Grayned v. City of Rockford, 408 U.S. 104, 10809 (1972). So they risk ending up on the receiving end of

future penalties for actions that were once fine under a

prior administration’s interpretation of the same law. See

Christopher v. SmithKline Beecham Corp., 567 U.S. 142,

159 (2012) (explaining that it is too much “to require

regulated parties to divine the agency’s interpretations in

advance or else be held liable”).

High volatility like this puts businesses in an almost

impossible situation—even more because “[m]uch of what

an agency does … occurs in the twilight of discretion.”

PHH Corp. v. CFPB, 881 F.3d 75, 198 (D.C. Cir. 2018)

(Kavanaugh, J., dissenting). Agencies “determin[e] …

when, how, and against whom to bring enforcement

actions to enforce” their rules. Id. And with all the

uncertainty businesses already face today, “an

unpredictable regulatory framework is an unnecessary,

additional burden.” Jason Bailey, Clean Water Act,

Section 404 Applicants: May the Odds Be Ever in Your

Favor, 3 AM. U. BUS. L. REV. 457, 477 (2014). Yet this is

the playing field Chevron built. So to assuage investor

fears and avoid future setbacks, businesses often plan for

the harshest potential regulatory environment as a matter

of prudence. See, e.g., Kate Sheppard, EPA Chief Says

She’s Not Worried About Supreme Court Mercury

Ruling,

HUFFINGTON

POST

(July

2015),

https://bit.ly/3IRFtqY (EPA head dismissing a decision

from this Court as irrelevant because most of the

regulated parties had “already invested in technology” to

comply with the unlawful rule).

Especially for small, family-owned and -operated

outfits like Petitioners’, the burdens of shifting, expanding

regulations are crushing. One analysis found that small

businesses pay on average $11,700 in regulatory costs per

employee, per year—totaling “more than $40 billion” in

direct spending before adding additional costs for “lost

productivity” and “higher prices.” U.S. CHAMBER OF

COM. FOUND., THE REGULATORY IMPACT ON SMALL

BUSINESS: COMPLEX. CUMBERSOME. COSTLY. 4, 6, 8 (Mar.

2017), https://bit.ly/2MaFaOC.

Here, the agency

estimated that compliance would cost herring fishers $710

a day, “which in the aggregate could reduce annual

returns by approximately 20 percent.” Pet.App.4 (cleaned

up). Other analyses have documented even higher figures

for some sectors. See, e.g., W. MARK CRAIN & NICOLE V.

CRAIN, THE COST OF FEDERAL REGULATION TO THE U.S.

ECONOMY, MANUFACTURING, AND SMALL BUSINESS 2

(2014), https://bit.ly/3pFeGdS (finding federal regulations

saddled small manufacturers with about $35,000 in costs

per employee in 2012).

Challenging regulations in court imposes even more

expenses that many small businesses cannot afford.

“Most farmers,” for example, “don’t have the money to go

through an administrative process that is already tilted

against their favor, just to get to a court of law” where

they’ll face Chevron’s tough standard. Bennett, supra.

High margins and deep pockets help companies get

through extended legal fights. Business owners without

either are the ones who feel most acutely the denied

freedom to “function[] without being ruled by

functionaries.” Free Enter. Fund v. Pub. Co. Acct.

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

And the regulatory problem for small businesses isn’t

just the price tag, but the disproportionate burden they

shoulder.

The situation is ripe for rent-seeking.

“[C]ompliance, reporting, and record keeping” costs

burden smaller companies 36% more than larger outfits

due to “smaller staffs and more limited access” to

“specialized legal knowledge” and expensive consulting

services. REGULATORY IMPACT ON SMALL BUSINESS,

supra, at 5. Some rules, for example, would hit smaller

companies 65 times harder “than their largest

competitors.” Id. at 6 (EPA’s 2013 greenhouse gas

regulations). The reason is that regulatory compliance

“involves economies of scale.” James L. Huffman, The

Impact of Regulation on Small and Emerging

Businesses, 4 J. SMALL & EMERGING BUS. L. 307, 313-15

(2000). Larger competitors are better able to fund

initiatives to advance their bottom lines while also

“cop[ing] with the costs and delays associated with the

existing [regulatory] system.” Id. at 314. So they often

need only wait and watch as compliance costs “discourage

the startup of new businesses,” run down competition

from existing competitors, and put pressure on smaller

outfits to merge with them “before an economic downturn

or a significant regulatory violation leads to failure.” Id.

A brawny Chevron doctrine bears much of the blame for

these anticompetitive results.

4. Finally, the States themselves feel Chevron’s sting.

As things stand right now, “unelected officials in federal

agencies have the significant power to encroach on state

autonomy.” Scott A. Keller, How Courts Can Protect

State Autonomy from Federal Administrative

Encroachment, 82 S. CAL. L. REV. 45, 94 (2008). Yet they

wield that power having “no special expertise” in “the

proper balance between state and federal power.”

Damien J. Marshall, The Application of Chevron

Deference in Regulatory Preemption Cases, 87 GEO. L.J.

263, 280 (1998).

When agencies lack institutional

incentives to protect federalism and courts let them erode

the States’ spheres through uncertain text, it’s no surprise

that States become Chevron’s victims, too.

Consider how agencies treat States in the regulatory

process. Unfortunately, “[f]ederalism criteria ... do not

have a natural home in [federal] agencies.” Catherine M.

Sharkey, Inside Agency Preemption, 110 MICH. L. REV.

521, 571 (2012).

Agencies often miss or discount

“federalism values” because “they are unlikely to confront

them routinely.” Kent Barnett, Improving Agencies’

Preemption Expertise with Chevmore Codification, 83

FORDHAM L. REV. 587, 594 (2014). Agencies’ “institutional

focus” makes them “particularly ill-suited to consider

state autonomy to regulate”—much less “federalism

concerns” more generally.

Nina A. Mendelson, A

Presumption Against Agency Preemption, 102 NW. U. L.

REV. 695, 699 (2008). So each time agency power ratchets

up, the agency’s “stake in validating [its] own policy

decisions” grows at the same rate its “willing[ness] to

consider the validity of a different balance struck by state

regulators” shrinks. Id.

Chevron makes the courts accomplices to these blind

spots. As Justice Breyer put it, “the true test of federalist

principle may lie … in those many statutory cases where

courts interpret the mass of technical detail that is the

ordinary diet of the law.” Egelhoff v. Egelhoff, 532 U.S.

141, 160-61 (2001) (Breyer, J., dissenting) (cleaned up).

But Chevron let agencies downgrade the States’ interests

in exactly those cases; it says that when an agency

enforces the statute, courts should assume Congress

passed off a much wider array of these details than in an

ordinary “statutory case[].” Put differently, when courts

see the “absence of adequate guidance from Congress” in

a statute (not unusual; again, see above), Chevron treats

that ambiguity as a green light to “excessive[ly] interfere[]

with state regulatory autonomy.” Mendelson, supra, at

699.

And agency preferences triumph over federalist values

in all sorts of contexts. Federal agencies lean on Chevron

to ignore state interests and preempt state law. See, e.g.,

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 744 (1996)

(applying Chevron to find a regulation preempted state

law despite an argument that the presumption against

preemption should have controlled). Knowing Chevron

will shepherd them through the courts, regulators

heighten the conditions States must satisfy to participate

in federal funding programs. See, e.g., Pa. Dep’t of Pub.

Welfare v. United States, 781 F.2d 334, 340 (3d Cir. 1986)

(upholding an agency-imposed spending condition as

sufficiently clear because “[S]tates are familiar with the

broad discretion” agencies get). And agencies wield

growing power to probe the States’ own conduct and even

pursue direct adverse actions against them. See, e.g.,

Robert A. Mikos, Can the States Keep Secrets from the

Federal Government?, 161 U. PA. L. REV. 103, 117 (2012)

(“[F]ederal agencies have increasingly exercised

[administrative] subpoena power to demand confidential

information from state governments.”). In all these ways,

Chevron feeds the drive for vertical control over the

States.

Another troubling—and recurring—example is federal

agencies’ habit of pushing States out of cooperative

federalism schemes. In Chevron’s early days, some courts

thought the doctrine made it “particularly important” for

agencies to “follow the correct statutory procedures”

when attempting to “mak[e] state regulation stricter.”

Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036 (7th

Cir. 1984) (addressing the Clean Air Act). But it didn’t

take long for the same courts to use Chevron in blessing

broad claims of agency authority that cast cooperative

federalism aside. E.g., Solid Waste Agency of N. Cook

Cnty. v. U.S. Army Corps of Eng’rs, 191 F.3d 845, 851 (7th

Cir. 1999) (relying on Chevron to allow expansive new

assertion of power under the Clean Water Act), rev’d, 531

U.S. 159 (2001). Chevron’s “mechanical application to [a]

system of ‘cooperative federalism’” ensures that “federal

agencies will retain almost absolute discretion to [decide]

whether to ‘cooperate’ with state and local governments

or not.” Sierra B. Weaver, Local Management of Natural

Resources: Should Local Governments Be Able to Keep

Oil Out?, 26 HARV. ENV’T. L. REV. 231, 242 (2002).

This shift from congressionally intended state input to

agency-directed control highlights how Chevron cannot

“adjust to situations in which the federal agency is not the

only ‘expert agency’ involved”—even when Congress

chose a “system of ‘cooperative federalism’” precisely to

reap those multiple-regulator benefits. Weaver, supra, at

242. So, worse than the usual problem of asking courts to

read too much into congressional silence, applying

Chevron in these cases also runs into the teeth of

Congress’s

decision to

rely

“cooperative

federalism[’s] … experimental benefits.” Ben Raker,

Decentralization and Deference: How Different

Conceptions of Federalism Matter for Deference and Why

That Matters for Renewable Energy, 47 ENV’T. L. REP.

NEWS & ANALYSIS 10,963, 10,975 (2017). Chevron, that is,

is indiscriminately pro-agency. Even where the best

reading of a statute would favor the States’ involvement

and voice, a merely permissible reading need not.

It was never supposed to be this way. The country

started from a premise that States “would have primary

responsibility for matters of greatest concern to citizens.”

Todd E. Pettys, Competing for the People’s Affection:

Federalism’s Forgotten Marketplace, 56 VAND. L. REV.

329, 340 (2003).

The Constitution enshrined that

“distinction between what is truly national and what is

truly local,” United States v. Morrison, 529 U.S. 598, 61718 (2000), including that regulating “health and safety

matters”—much of federal agencies’ current beat—“is

primarily, and historically, a matter of local concern,”

Hillsborough Cnty. v. Automated Med. Lab’ys, Inc., 471

U.S. 707, 719 (1985). So the Framers would be surprised

to find their prediction flipped: The “greatest risk” now is

not “that the states would encroach upon matters best left

to the federal government,” but that “the federal

government would intrude upon matters best left to the

states.” Pettys, supra, at 340. And moving regulatory

power from the States to less connected and

representative agencies means that rules are less able “to

respond to the divisive needs of a diverse citizenry.”

Keller, supra, at 94. Other harms aside, even Chevron’s

author saw that “a healthy respect for state sovereignty

calls for something less than Chevron deference” when the

federal-state balance is at stake. Watters v. Wachovia

Bank, N.A., 550 U.S. 1, 41 (2007) (Stevens, J., dissenting,

joined by Roberts, C.J., and Scalia, J.).

Yet here we are. A doctrine that says agencies

virtually always win siphons the States’ constitutional

powers in areas of particular concern and local expertise.

And it erases structural federalism defenses to do it.

The power Chevron gives the federal government to

“displace[] state law without adhering to the

constitutionally prescribed lawmaking procedures”

makes the whole gambit “suspect.” Bradford R. Clark,

Separation of Powers As A Safeguard of Federalism, 79

TEX. L. REV. 1321, 1433 (2001). “Separation-of-powers

principles” include protections from laws “enacted in

contravention of constitutional principles of federalism.”

Bond v. United States, 564 U.S. 211, 222-24 (2011).

Applied here, that means within (important) subjectmatter limits, Congress can preempt traditional state

powers under the Supremacy Clause. But it must do so

with “unmistakably” and “exceedingly clear language.”

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989);

U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S.

Ct. 1837, 1849-50 (2020). The idea that agencies can get to

the same place through ambiguous—by definition, not

clear—text gets this presumption backward. It sidelines

Congress’s role setting the “boundary between state and

national spheres” through the “limits of the regulatory

schemes” it puts into law. Ernest A. Young, Executive

Preemption, 102 NW. U. L. REV. 869, 874 (2008).

The upshot is that the States are losing not only our

authority to regulate in ways that matter most, but also

our right to have the people we send to Congress make

those calls if the federal government tries to take on these

issues instead. At least in Congress, members have front

of mind that voters can fire them for snubbing concerns

contrary to the “will of the people.” United States v. Lee

Yen Tai, 185 U.S. 213, 222 (1902). Agencies are inherently

“less accountable.” Clark, supra, at 1438. And though the

Administrative Procedure Act is meant to counteract that

reality by making them more “accountable to the public,”

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140

S. Ct. 1891, 1905 (2020), Chevron “is in serious tension

with” that goal. Baldwin v. United States, 140 S. Ct. 690,

691 (2020) (Thomas, J., dissenting from the denial of

certiorari). Chevron’s damage to federalism is another

reason it has to go.

* * * *

The lower courts’ “wildly different approaches” to

Chevron and its many “exceptions and caveats” leave the

doctrine beyond restoration to anything resembling a

“clear and stable rule.” Buffington, 143 S. Ct. at 20

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

after wreaking this much damage, it deserves a rebuke of

equal measure. The Court should overrule it now.

Anything less will deny the people of our States the relief

they need and that our separation of powers promises.

II.

Experience Shows That The Sky Will Not Fall

Without Chevron.

For all the reasons to leave Chevron behind, the

question still remains: “What’s next?” The States have an

answer: “We’ve already shown you.” Many of our

legislatures and courts have blazed a trail without

Chevron-like deference. The “trains [are still] run[ning]

on time” in the many States that have opted out—and our

constitutional integrity and “individual libert[ies]” are

better for it. Ass’n of Am. R.R.s, 575 U.S. at 91 (Thomas,

J., concurring in the judgment). Our residents are reaping

the gains from better accountability and responsible

regulation. These real-world experiences provide reason

for confidence that with Chevron out of the picture, the

same will be true on the federal side.

A. This Court does not have to guess what would

follow a reversal. One of the benefits of our co-sovereign,

laboratory-of-democracy system is that we have some

examples to go on. In this case, many.

Lots of States have been ahead of the curve by skipping

the Chevron experiment entirely. See Aaron Saiger,

Chevron and Deference in State Administrative Law, 83

FORDHAM L. REV. 555, 557 (2014) (collecting “high-quality

and recent surveys” that show a “mixed reception” for the

doctrine). Florida, for instance, put anti-Chevron right

into its constitution: “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 [it] de novo.” FLA. CONST. art. V, § 21.

Recent statutes mark an emerging trend to codify similar

principles, too. Wisconsin does not allow any agency to

“seek deference in any proceeding based on the agency’s

interpretation of any law.” WIS. STAT. § 227.10(2g).

Arizona emphasizes that courts “shall decide all questions

of law” and “all questions of fact” without deference to an

agency, “including the interpretation of a constitutional or

statutory provision or a rule adopted by an agency.” ARIZ.

REV. STAT. § 12-910(F). And Tennessee not only bars

courts in contested cases from “defer[ring] to a state

agency’s interpretation of [a state] statute or rule,” but it

also provides that de novo review in this context requires

resolving any ambiguity left after “applying all customary

tools of interpretation … against increased agency

authority.” TENN. CODE § 4-5-326 (emphasis added).

State courts have also not been shy about rejecting

Chevron’s reasoning since almost as soon as the decision

came down. Three years after Chevron, the South Dakota

Supreme Court found “no reason to give deference to

agency conclusions of law.” Permann v. S.D. Dep’t of

Lab., Unemployment Ins. Div., 411 N.W.2d 113, 117 (S.D.

1987). A decade later, Delaware’s high court “expressly

decline[d] to adopt [Chevron’s] standard” because

“[s]tatutory interpretation is ultimately the responsibility

of the courts.” Pub. Water Supply Co. v. DiPasquale, 735

A.2d 378, 382-83 (Del. 1999). A decade after that,

Michigan’s supreme court concluded that Chevron’s

“vagaries” “d[id] not provide a clear road map” to justify

“import[ing]” it to the Great Lakes State. In re Compl. of

Rovas Against SBC Mich., 754 N.W.2d 259, 271-72 (Mich.

2008). Another five years on, the Utah Supreme Court

held deference is inappropriate when interpreting

statutes. Murray v. Utah Lab. Comm’n, 308 P.3d 461, 472

(Utah 2013). Then, a few years ago, the Supreme Court of

Mississippi scrapped deference altogether, calling it

“confusing and vague” to defer to an agency “while

simultaneously claiming that the Court bears the ultimate

responsibility to interpret statutes.” King v. Miss. Mil.

Dep’t, 245 So. 3d 404, 407 (Miss. 2018). And this

progression is still continuing. Late last year, Ohio’s high

court held that “separation of powers” principles forbid

courts from giving their “interpretative authority to

administrative agencies.” TWISM Enters., LLC v. State

Bd. of Registration for Pro. Eng’rs & Surveyors, No. 211440, 2022 WL 17981386, at *7 (Ohio Dec. 29, 2022).

These examples—spanning several decades of

practice—are not aberrations. “[M]ost” of the state

courts, it turns out, “have not embraced the Chevron

approach.” Cass R. Sunstein, On Overruling Chevron 9

n.50 (Nov. 2020), available at https://bit.ly/46FKKPg. By

one count as of 2020, “pure Chevron-style review” States

were “outnumbered by states that apply less deferential

standards by more than a 2-to-1 ratio.” Luke Phillips,

Chevron in the States? Not So Much, 89 MISS. L.J. 313,

315 (2020); see also Michael Pappas, No Two-Stepping in

the Laboratories: State Deference Standards and Their

Implications for Improving the Chevron Doctrine, 39

MCGEORGE L. REV. 977, 984-87 (2008) (finding

comparable results).

True, the same survey found fourteen States deployed

Chevron-style deference. Phillips, supra, at 315-16. But

twenty-one had courts that review de novo. Id. at 315.

Another eleven applied less deferential “hybrids” that

exempt certain agency decisions from deference, consider

unique factors when assessing the appropriate type of

review, or mix Chevron with a bit of Skidmore for a

custom deference blend. Id. at 316. And four States apply

something akin to Skidmore alone. Id. at 315; see also

Daniel Ortner, The End of Deference: The States Have

Rejected Deference, YALE J. ON REG.: NOTICE &

COMMENT (Mar. 24, 2020), https://bit.ly/3JRvsNQ

(providing a map showing the diverse deference

approaches among the States). In short, “it’s the state

court judges” that “by and large did not fall under

Chevron’s spell”—and that makes them the ones “doing

the leading” now.

Jeffrey S. Sutton & John L.

Rockenbach, Respect and Deference in American

Administrative Law, 102 B.U. L. REV. 1937, 1944-45

(2022).

Lastly, the “no deference” and “deference lite” States

are doing just fine. Those hoping to save Chevron based

on fears of life without it ought to be able to point to fallout

in States like these. They cannot. As far as amici are

aware, no State that rejected Chevron-style deference has

reverted back. In fact, the States cannot find even one

decision or the like questioning the choice to abandon a

more deferential approach. State agencies themselves—

who would no doubt be quick to blame institutional failings

on a lack of deference if they could—are also not citing

absence of deference as a genuine policy constraint. In the

end, the Chevron-less States seem able to efficiently and

effectively tackle questions that are just as technically

complex as those the mix of federal agencies see.

B. So life without Chevron can move on easily. The

States’ experience also shows that it can do so without

missing out on agency expertise—long cited as the reason

Chevron deference should stay. That subject-matter

mastery would just operate in a narrower and more

accountable zone.

Most obviously, like the state legislatures, Congress

would still have power to delegate many issues to

agencies. It would simply have to use more “specific

words in the statute” and provide more clarity through

statutory context to articulate its intent. Biden v.

Nebraska, 143 S. Ct. 2355, 2380 (2023) (Barrett, J.,

concurring). It might have to work a little harder on

occasion. But there’s no reason it could not accept the task

again. After all, without the dodge Chevron gives our

representatives to pin policy change (or lack of it) on the

Executive, the incentives get reset for Congress to step up

and reflect the “will of the people of the United States.”

Lee Yen Tai, 185 U.S. at 222.

Congress is also unlikely to make too many major

policy swings like those agencies have become known for

with each incoming administration.

Institutional

roadblocks are features in the Legislature’s architecture,

designed to make sure that big changes come with

deliberation and input from all regions of the country. So

more congressional attention post-Chevron means

narrower net zones of change and reduced intensity for

the whipsaw. But at the same time, if Congress doesn’t

act to address critical issues, then the responsibility that

axing Chevron will help restore means that voters will

know who to blame.

The federal courts, too, will likely have no trouble

following so many of their state counterparts into a

deference-free world. Many are already halfway there.

Chevron’s prominence has been “fading” for a while,

Linda Jellum, Chevron’s Demise: A Survey of Chevron

from Infancy to Senescence, 59 ADMIN. L. REV. 725, 727

(2007), as the Court has declined to apply it “in nearly

three-quarters of the cases where it would appear

applicable,” William N. Eskridge, Jr. & Lauren E. Baer,

The Continuum of Deference: Supreme Court Treatment

of Agency Statutory Interpretations from Chevron to

Hamdan, 96 GEO. L.J. 1083, 1125 (2008). Just two Terms

back, two of the Court’s decisions confirmed that “[t]he

famous footnote nine … is alive and well.” Richard J.

Pierce, Jr., Is Chevron Deference Still Alive?, REGUL.

REV. (July 14, 2022), https://bit.ly/3XrHoex. It seems,

then, that “Chevron maximalism has died of its own weight

and is already effectively buried.” Buffington, 143 S. Ct.

at 22 (Gorsuch, J., dissenting from denial of certiorari).

No wonder that many judges in the lower courts seem

prepared to write the doctrine’s eulogy. They are eager

to stop aiding and abetting an “erode[d]” “role of the

judiciary” and “diminishe[d]” “role of Congress.” Egan v.

Del. River Port Auth., 851 F.3d 263, 279 (3d Cir. 2017)

(Jordan, J., concurring in the judgment). They are ready

for the “Article III renaissance [that] is emerging against

the judicial abdication performed in Chevron’s name.”

Waterkeeper All. v. EPA, 853 F.3d 527, 539 (D.C. Cir.

2017) (Brown, J., concurring). And along with so many

state courts, they are tired of seeing “our constitutional

separation of powers” “disordered.” Valent v. Comm’r of

Soc. Sec., 205 L. Ed. 2d 417, 524 (6th Cir. 2019) (Kethledge,

J., dissenting); see also, e.g., Voices for Int’l Bus. & Educ.,

Inc. v. NLRB, 905 F.3d 770, 781 (5th Cir. 2018) (Ho, J.,

concurring) (“Misuse of the Chevron doctrine means

collapsing the[] three separated government functions

into a single entity.”); Aqua Prod., Inc. v. Matal, 872 F.3d

1290, 1334 (Fed. Cir. 2017) (Moore, J.) (“Chevron has

effected a broad transfer of legislative and judicial

function to the executive.”).

So freeing federal courts from Chevron would let these

and other judges again “fulfill their duty to exercise their

independent judgment about what the law is.” GutierrezBrizuela, 834 F.3d at 1158 (Gorsuch, J., concurring)

(emphasis in original). That’s the kind of work they do

every day. And like in the majority of the States, making

that true again for agency review would let us keep the

“benefits from expertise without being ruled by experts.”

Free Enter. Fund, 561 U.S. at 499.

* * * *

At bottom, this case confronts the question: “Who

decides?” NFIB v. OSHA, 142 S. Ct. 661, 667 (2022)

(Gorsuch, J., concurring). The Amici States do not think

all agencies should be eliminated or ignored; agency

insight has a role to play. But for far too long, agencies

have enjoyed more influence than our constitutional

system should tolerate. Congress should call the shots,

and courts should hold agencies to those calls. Even forty

years ago, Chevron offered few good reasons to reshuffle

the nature of decisionmaking as it did. See Cass R.

Sunstein, Chevron As Law, 107 GEO. L.J. 1613, 1669

(2019) (“[T]he quality of the reasoning in Chevron was not

high.”). It has aged even worse—and our residents and

businesses, along with our sovereign interests, feel the

sting. The Court should end it.

CONCLUSION

The Court should reverse the decision below and, in

doing so, overturn Chevron.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Principal Deputy

Solicitor General

GRANT A. NEWMAN

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

KRIS KOBACH

Attorney General

State of Kansas

TREG TAYLOR

Attorney General

State of Alaska

DANIEL CAMERON

Attorney General

Commonwealth of

Kentucky

TIM GRIFFIN

Attorney General

State of Arkansas

ASHLEY MOODY

Attorney General

State of Florida

CHRIS CARR

Attorney General

State of Georgia

RAÚL LABRADOR

Attorney General

State of Idaho

THEODORE E. ROKITA

Attorney General

State of Indiana

BRENNA BIRD

Attorney General

State of Iowa

JEFF LANDRY

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

ANDREW BAILEY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

JOHN M. FORMELLA

Attorney General

State of New Hampshire

DREW WRIGLEY

Attorney General

State of North Dakota

DAVE YOST

Attorney General

State of Ohio

GENTNER DRUMMOND

Attorney General

State of Oklahoma

ALAN WILSON

Attorney General

State of South Carolina

MARTY JACKLEY

Attorney General

State of South Dakota

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

ANGELA COLMENERO

Provisional Attorney

General

State of Texas

SEAN D. REYES

Attorney General

State of Utah

JASON MIYARES

Attorney General

Commonwealth of

Virginia

BRIDGET HILL

Attorney General

State of Wyoming

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