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 AMERICAN FREE

ENTERPRISE CHAMBER OF COMMERCE

IN SUPPORT OF PETITIONERS

WILLIAM P. BARR

TORRIDON LAW

PLLC

1750 Tysons Blvd.

Suite 1800

Tysons, VA 22102

BRIAN A. KULP

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

STEVEN A. ENGEL

Counsel of Record

MICHAEL H. MCGINLEY

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

Counsel for Amicus Curiae

July 24, 2023

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT .............................................................. 2

ARGUMENT .............................................................. 6

I.

The Court Should Abandon Chevron

Deference Because It Is Egregiously Wrong

And Deeply Damaging To The Rule Of Law. ..... 6

A. Chevron Deference Defies The Separation

of Powers. ...................................................... 7

B. Chevron Deference Violates Due Process. ... 12

C. Chevron Deference Flouts The APA’s Text. 14

II. The Traditional Stare Decisis Factors Cannot

Save Chevron Deference. .................................. 19

A. Chevron Deference Undermines Reliance

Interests. ..................................................... 20

B. Chevron

Deference

Has

Proven

Unworkable And Has Produced Absurd

Results......................................................... 22

C. The Experience In States That Have

Repudiated Similar Deference Doctrines

Confirms That There Is No Good Reason

To Preserve Chevron’s Unlawful Regime. . 27

CONCLUSION ........................................................ 32

ii

TABLE OF AUTHORITIES

Cases

Agostini v. Felton,

521 U.S. 203 (1997)................................................ 21

Allen v. Milligan,

143 S. Ct. 1487 (2023).............................................. 5

Am. Hosp. Ass’n v. Azar,

967 F.3d 818 (D.C. Cir. 2020) ................................ 23

Am. Hosp. Ass’n v. Becerra,

142 S. Ct. 1896 (2022).................................. 4, 23, 24

Aposhian v. Wilkinson,

989 F.3d 890 (10th Cir. 2021)................................ 24

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018).................................. 19

Baldwin v. United States,

140 S. Ct. 690 (2020)........................................ 15, 19

Becerra v. Empire Health Found.,

142 S. Ct. 2354 (2022)........................................ 4, 23

Biden v. Nebraska,

143 S. Ct. 2355 (2023)............................................ 11

Buffington v. McDonough,

143 S. Ct. 14 (2022)................................................ 13

Burnet v. Chicago Portrait Co.,

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

Cargill v. Garland,

57 F.4th 447 (5th Cir. 2023) .................................. 24

iii

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York,

273 F.3d 481 (2d Cir. 2001) ................................... 26

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. EPA,

846 F.3d 492 (2d Cir. 2017) ................................... 26

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

467 U.S. 837 (1984)................ 2, 9, 10, 11, 16, 18, 19

Chicago, Milwaukee & St. Paul Rwy. Co. v.

McCaull-Dinsmore Co.,

253 U.S. 97 (1920).................................................... 8

City of Arlington v. FCC,

569 U.S. 290 (2013)................................................ 18

In re Complaint of Rovas Against SBC Mich.,

754 N.W.2d 259 (Mich. 2008) ................................ 30

Concrete Pipe & Prods. v. Constr. Laborers

Pension Tr.,

508 U.S. 602 (1993)................................................ 14

Connally v. Gen. Constr. Co.,

269 U.S. 385 (1926)................................................ 13

Decatur v. Paulding,

39 U.S. (14 Pet.) 497 (1840) ..................................... 8

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

575 U.S. 43 (2015)............................................ 17, 18

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022).................................... 5, 6, 19

Douglas v. Ad Astra Info. Sys., L.L.C.,

293 P.3d 723 (Kan. 2013) ...................................... 30

iv

E. Shore Nat. Gas Co. v. Del. Pub. Serv. Comm’n,

637 A.2d 10 (Del. 1994) ......................................... 29

Empire Health Found. for Valley Hosp. Med. Ctr.

v. Becerra,

958 F.3d 873 (9th Cir. 2020).................................. 23

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018)............................................ 16

Fletcher v. Peck,

10 U.S. (6 Cranch) 87 (1810) ................................. 11

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

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

Guedes v. Bureau of Alcohol, Tobacco, Firearms

& Explosives,

140 S. Ct. 789 (2020)........................................ 13, 20

Gundy v. United States,

139 S. Ct. 2116 (2019)...................................... 17, 18

Gutierrez-Brizuela v. Lynch,

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

.............................................. 4, 10, 12, 13, 16, 19, 21

Harnischfeger Corp. v. Lab. & Indus. Rev.

Comm’n,

539 N.W.2d 98 (Wis. 1995) .................................... 28

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017).................................................. 17

Hughes Gen. Contractors, Inc. v. Utah Labor

Comm’n,

322 P.3d 712 (Utah 2014) ...................................... 31

v

INS v. Chadha,

462 U.S. 919 (1983)................................................ 11

King v. Burwell,

576 U.S. 473 (2015)................................................ 25

King v. Miss. Military Dep’t,

245 So. 3d 404 (Miss. 2018) ................................... 29

Kisor v. Wilkie,

139 S. Ct. 2400 (2019).................................. 8, 12, 17

Mallory v. Norfolk S. Rwy. Co.,

143 S. Ct. 2028 (2023)........................................ 4, 27

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ......................... 2, 7, 31

Mexican Gulf Fishing Co. v. U.S. Dep’t of

Commerce,

60 F.4th 956 (5th Cir. 2023) .................................. 24

Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss.

Div. of Medicaid,

21 So.3d 600 (Miss. 2009) ...................................... 29

In re Murchison,

349 U.S. 133 (1955)................................................ 14

Myers v. Yamato Kogyo Co.,

597 S.W.3d 613 (Ark. 2020) ................................... 31

Nat’l Bank v. Whitney,

103 U.S. 99 (1880).................................................. 21

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

Internet Servs.,

545 U.S. 967 (2005)................................................ 20

Nieto v. Clark’s Market, Inc.,

488 P.3d 1140 (Colo. 2021) .................................... 30

vi

Payne v. Tennessee,

501 U.S. 808 (1991).......................................... 20, 21

Pearson v. Callahan,

555 U.S. 223 (2009).............................................. 4, 5

Pereira v. Sessions,

138 S. Ct. 2105 (2018)............................................ 22

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015).......................................... 7, 8, 10

Plaut v. Spendthrift Farm,

514 U.S. 211 (1995).................................................. 8

Pub. Water Supply Co. v. DiPasquale,

735 A.2d 378 (Del. 1999) ....................................... 29

Ex parte Randolph,

20 F. Cas. 242 (C.C. Va. 1833)................................. 9

Rodriguez de Quijas v. Shearson/Am. Express,

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

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020)............................................ 12

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018)............................................ 22

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

914 N.W.2d 21 (Wis. 2018) .................................... 28

TWISM Enters., L.L.C. v. State Bd. of

Registration for Prof. Eng’rs and Surveyors, ___

N.E.3d ___, 2022 WL 17981386 (Ohio Dec. 29,

2022) ....................................................................... 30

United States v. Davis,

139 S. Ct. 2319 (2019)............................................ 13

vii

United States v. Dickson,

40 U.S. (15 Pet.) 141 (1840) ............................. 2, 8, 9

United States v. Hatter,

532 U.S. 557 (2001).................................................. 8

United States v. Havis,

907 F.3d 439 (6th Cir. 2018).................................. 14

United States v. Mead Corp.,

533 U.S. 218 (2001)............................................ 6, 25

United States v. Nixon,

418 U.S. 683 (1974).................................................. 9

United States v. Turkette,

452 U.S. 576 (1981)................................................ 22

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001)................................................ 11

Williams v. Pennsylvania,

579 U.S. 1 (2016).................................................... 14

Constitution and Statutes

U.S. Const. art. I, § 1 ............................................ 7, 11

U.S. Const. art. I, § 7, cl. 2 ....................................... 11

U.S. Const. art. II, § 3 ................................................ 7

U.S. Const. art. III, § 1 ........................................... 7, 9

U.S. Const. art. III, § 2 ............................................. 10

5 U.S.C. § 706 ........................................... 3, 14, 17, 19

5 U.S.C. § 706(2)(A) .................................................. 15

5 U.S.C. § 706(2)(C) .................................................. 15

5 U.S.C. § 706(2)(E) .............................................. 3, 15

viii

16 U.S.C. § 1853 ....................................................... 25

Other Authorities

Aditya Bamzai, The Origins of Judicial Deference

to Executive Interpretation, 126 Yale L.J. 908

(2017) ................................................................ 10, 15

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts, 116 Mich. L.

Rev. 1 (2017) .......................................................... 24

David J. Barron & Elena Kagan,

Chevron’s Nondelegation Doctrine, 2001 Sup.

Ct. Rev. 201 ...................................................... 16, 17

Jack M. Beermann, End the Failed Chevron

Experiment Now: How Chevron Has Failed

and Why it Can and Should Be Overruled, 42

Conn. L. Rev. 779 (2010) ......................................... 5

Stephen Breyer, Judicial Review of Questions of

Law and Policy, 38 Admin. L. Rev. 363 (1986)....... 9

Bureau of Economic Analysis, Gross Domestic

Product by State and Personal Income by State,

Year 2022, bit.ly/3D4Lujl ...................................... 28

Delaware Secretary of State Jeffrey W. Bullock,

Delaware Division of Corporations: 2022

Annual Report, bit.ly/3XYQEHr ........................... 27

John Dickinson, Administrative Procedure Act:

Scope and Grounds of Broadened Judicial

Review, 33 ABA J. 434 (1947) ............................... 15

Cynthia R. Farina, Statutory Interpretation and

the Balance of Power in the Administrative

State, 89 Colum. L. Rev. 452 (1989) ...................... 16

ix

Abbe R. Gluck & Lisa Schultz Bressman,

Statutory Interpretation from the Inside—An

Empirical Study of Congressional Drafting,

Delegation, and the Canons: Part I, 65 Stan. L.

Rev. 901 (2013) ...................................................... 16

Philip Hamburger, Chevron Bias, 84 Geo. Wash.

L. Rev. 1187 (2016) ................................................ 14

Philip Hamburger, Is Administrative Law

Unlawful? (2014) .................................................... 9

Elena Kagan, Presidential Administration, 114

Harv. L. Rev. 2245 (2001)...................................... 18

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118

(2016) .................................................. 4, 6, 18, 19, 22

Raymond M. Kethledge, Ambiguities and Agency

Cases: Reflections After (Almost) Ten Years

on the Bench, 70 Vand. L. Rev. En Banc 315

(2017) ...................................................................... 22

Leading Case: American Hospital Ass’n v.

Becerra, 136 Harv. L. Rev. 480 (2022) ............ 23, 24

Daniel Ortner, The End of Deference: How States

(and Territories and Tribes) Are Leading a

(Sometimes Quiet) Revolution Against

Administrative Deference Doctrines (2020),

https://bit.ly/3NgTaoB ........................................... 31

Richard J. Pierce, Jr., The Combination of

Chevron and Political Polarity Has Awful

Effects, 70 Duke L.J. Online 91 (2021) ................. 21

Antonin Scalia, A Matter of Interpretation:

Federal Courts and the Federal System (1997) .... 17

x

Jeffrey S. Sutton, Who Decides?: States as

Laboratories of Constitutional Experimentation

(2022) ...................................................................... 27

The Federalist No. 10 (James Madison) .................. 14

The Federalist No. 22 (Alexander Hamilton) .......... 10

The Federalist No. 37 (James Madison) .................. 10

The Federalist No. 47 (James Madison) .............. 2, 12

The Federalist No. 51 (James Madison) .................... 7

The Federalist No. 62 (James Madison) .................. 12

The Federalist No. 75 (Alexander Hamilton) .......... 11

The Federalist No. 78 (Alexander Hamilton) .... 3, 7, 8

The Federalist No. 81 (Alexander Hamilton) ............ 8

Tr. of Oral Arg., Jones v. Hendrix, 599 U.S. ___

(2023) (No. 21-857) (Gorsuch, J.) .......................... 21

United States Census Bureau, 2020 Census:

Percent Change in Resident Population for the

50 States, the District of Columbia, and Puerto

Rico: 2010 to 2020, bit.ly/3Dph9wo ....................... 27

1

INTEREST OF AMICUS CURIAE 1

Formed in 2022, the American Free Enterprise

Chamber of Commerce (“AmFree”) is a 501(c)(6)

organization

that

represents

hard-working

entrepreneurs and businesses across all sectors to

serve as the voice for pro-business and free market

values. AmFree conducts research and develops policy

initiatives designed to support free, fair, and open

markets that spur economic growth.

For decades, AmFree’s members have been saddled

with overly burdensome regulations and harmed by

the insatiable expansion of the federal bureaucracy.

In response, AmFree recently launched the Center for

Legal Action (“CLA”) to address these issues in court.

Spearheaded by two-time former U.S. Attorney

General Bill Barr, the CLA’s mission is to return

power to the people and their elected representatives.

To that end, the CLA challenges the barrage of

federal regulations that raise energy costs, reduce

employment, restrict basic freedoms, and erode the

constitutional rights of individuals and businesses.

The CLA also files amicus briefs in important

regulatory and constitutional cases to support reining

in the administrative state.

Curtailing such

bureaucratic overreach is imperative for the growth,

prosperity, and competitiveness of the American

economy.

1 No counsel for any party authored this brief in whole or in part

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

and its counsel, made any monetary contribution toward the

preparation or submission of this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Two hundred twenty years ago, this Court affirmed

its power and its duty to “say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803). The judges “who apply the rule to particular

cases must, of necessity expound and interpret the

rule.” Id. (emphasis added). The judgment of “other

high functionaries” may be entitled to “great respect,”

but in “a government of laws, and not of men,” the

Constitution imposes upon the judicial department

“the solemn duty to interpret the laws in the last

resort,” and “it is not at liberty to surrender, or to

waive” that judgment. United States v. Dickson, 40

U.S. (15 Pet.) 141, 161–62 (1840) (Story, J.).

Forty years ago, however, this Court did just that.

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

Council, 467 U.S. 837 (1984), the Court adopted a

regime of mandatory judicial deference to agencies on

questions of statutory interpretation. And it did so

without any discussion of its constitutional or

statutory duties. Because Chevron deference violates

the Constitution and the Administrative Procedure

Act (“APA”), this Court should abandon it and make

clear that courts, not functionaries, have conclusive

authority to interpret the law in the cases before them.

Our Constitution separates powers.

The

commingling of executive, legislative, and judicial

power threatens “this essential precaution in favor of

liberty.” The Federalist No. 47, at 297 (James

Madison) (Clinton Rossiter ed., 1961).

But, as

reflected in the decision below, Chevron deference has

invited federal agencies to read statutory silence as a

3

blank check to rewrite the law in the guise of

interpretation. And the people have no recourse to

check that arrogation of power in court. The judiciary

stands idly by, refusing to ascertain “the meaning of

[the] act proceeding from the legislative body” while

granting the bureaucratic revision the force of law.

The Federalist No. 78, at 466 (Alexander Hamilton).

Such deference to executive agencies violates Article

I’s vesting of “[a]ll legislative Powers” in Congress and

undermines the judicial power.

It also offends

fundamental principles of due process, depriving

regulated parties of fair notice and defying the age-old

principle that no one shall be the judge in his own case.

Beyond these constitutional infirmities, Chevron

deference violates the APA’s unequivocal command

that reviewing courts “shall decide all relevant

questions of law” and “interpret constitutional and

statutory provisions.” 5 U.S.C. § 706 (emphasis

added). If Congress had intended a deferential

standard of review on certain legal questions, it would

have said so—just as it did elsewhere in the APA for

some agency findings of fact. See id. § 706(2)(E). Yet

nothing in the APA suggests that Congress wanted

statutory ambiguity to trigger deference; in fact, the

APA’s plain text refutes that idea.

Nor can Chevron deference be justified based on an

agency’s supposed political accountability. When it

comes to interpreting law, our Constitution demands

not accountability, but independence. And when it

comes to making law, our Constitution demands the

political accountability of a representative and

democratically elected legislature. The President’s

legislative role begins and ends with the presentment

4

requirement, and unelected bureaucrats have no

legislative power under that system.

In recent years, members of this Court have

recognized Chevron’s fundamental flaws. But rather

than abandon that approach, in recent cases, the

Court has simply ignored it. See, e.g., Becerra v.

Empire Health Found., 142 S. Ct. 2354 (2022); Am.

Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022). This

Court may now decide cases as though Chevron were

not precedent, but lower courts have no such luxury.

If one of this Court’s precedents “‘has direct

application in a case’ . . . a lower court ‘should follow

the case which directly controls, leaving to this Court

the prerogative of overruling its own decisions.’”

Mallory v. Norfolk S. Rwy. Co., 143 S. Ct. 2028, 2038

(2023) (quoting Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989)). Lower courts

thus remain forced to apply an erroneous deference

doctrine that has proven unworkable in practice.

“[T]he time has come to face the behemoth.”

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149

(10th Cir. 2016) (Gorsuch, J., concurring). Rather

than sidestep Chevron once again, this Court should

jettison the doctrine, direct lower courts to decide all

relevant questions of law, and free judges “to find the

best reading of the statute.” Brett M. Kavanaugh,

Fixing Statutory Interpretation, 129 Harv. L. Rev.

2118, 2144 (2016).

The Court’s traditional stare decisis factors support

this approach.

As a “judge-made rule,” it is

“particularly appropriate” that this Court revisit

Chevron in light of the Constitution and statutory text

that the decision ignored. Pearson v. Callahan, 555

5

U.S. 223, 233 (2009). “The Court’s precedents . . .

pronouncing the Court’s own interpretive methods

and principles typically do not fall within th[e]

category of stringent statutory stare decisis.” Allen v.

Milligan, 143 S. Ct. 1487, 1517 n.1 (2023) (Kavanaugh

J., concurring) (citation omitted). And there is no good

reason to retain Chevron.

The decision was

“egregiously wrong” from the start, and it has since

proven “deeply damaging” to both the people’s liberty

and the rule of law. Dobbs v. Jackson Women’s Health

Org., 142 S. Ct. 2228, 2265 (2022).

Abandoning

Chevron

“would

not

upset

expectations” either. Pearson, 555 U.S. at 233.

Members of this Court have repeatedly expressed

grave doubts about Chevron in recent years. And

given the unpredictability of Chevron deference, “[n]o

one rationally orders their affairs in reliance” upon it.

Jack M. Beermann, End the Failed Chevron

Experiment Now: How Chevron Has Failed and Why

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

785 (2010). Far from protecting reliance interests,

retaining Chevron deference would undermine them.

Fixed laws allow citizens to plan their conduct, to

invest in the future, and to rest knowing that they

have complied with the law. But Chevron leaves the

law in a state of perpetual uncertainty. It forces the

people to guess how agencies might expand or contract

Congress’s commands and hopelessly speculate

whether those interpretive shifts might carry the force

of law. A single misstep can spell commercial

disaster—or even criminal penalties.

Four decades of experience have also demonstrated

that the Chevron framework cannot “be understood

6

and applied in a consistent and predictable manner.”

Dobbs, 142 S. Ct. at 2272. It is simply unworkable.

Judges cannot agree what is “ambiguous” enough for

step one or “reasonable” enough for step two, see

Kavanaugh, supra, at 2136, let alone whether Chevron

applies at all at “step zero,” see United States v. Mead

Corp., 533 U.S. 218 (2001). And agencies have

capitalized upon those vagaries to push the legal

envelope and claim new powers beyond those

Congress has granted.

Chevron was an experiment whose time has come

and gone.

The Court’s intent to promote

accountability in statutory interpretation has had the

opposite effect, undermining the constitutional role of

Congress and the courts, and inviting regulatory

overreach. And recent experience in the states that

have abandoned Chevron-like deference regimes

confirms that ending Chevron deference is consistent

with sensible rulemaking, economic growth, and the

rule of law. Rather than prune around the edges, this

Court should repudiate Chevron’s unwarranted

delegation of the legislative and judicial powers once

and for all. The Constitution demands it. The APA

demands it. And this Court’s precedent on precedent

demands it.

ARGUMENT

I.

The Court Should Abandon Chevron

Deference Because It Is Egregiously Wrong

And Deeply Damaging To The Rule Of Law.

Chevron deference was a grievous mistake when

the Court adopted it. Experience has confirmed this,

and the Court need not perpetuate the error.

Chevron’s regime of administrative deference defies

7

the constitutional separation of powers and the due

process rights of regulated parties. And it cannot be

squared with the APA’s plain text.

A. Chevron Deference Defies The Separation

of Powers.

The Framers recognized that the “separate and

distinct exercise of the different powers of

government” is “essential to the preservation of

liberty.” The Federalist No. 51, at 318 (James

Madison). So they “separated the three main powers

of Government—legislative, executive, and judicial—

into the three branches created by Articles I, II, and

III.” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 118

(2015) (Thomas, J., concurring). The Constitution

vests Congress with “[a]ll legislative Powers” granted

therein. U.S. Const. art. I, § 1. It tasks the President

with “faithfully execut[ing]” the laws Congress enacts.

Id. art. II, § 3. And it vests “[t]he judicial Power of the

United States” in the federal courts alone. Id. art. III,

§ 1. Thus, since the Founding, it has been understood

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 137; accord The Federalist No. 78,

at 466 (Alexander Hamilton) (“The interpretation of

the laws is the proper and peculiar province of the

courts.”).

The Framers insisted that this interpretive duty

remain with the judiciary in cases before the courts.

“[O]ther branches of Government have the authority

and obligation to interpret the law, but only the

judicial

interpretation

would

be

considered

authoritative in a judicial proceeding.” Perez, 575

U.S. at 119–20 (Thomas, J., concurring). The Framers

8

“were painfully aware of the dangers of executive and

legislative intrusion on judicial decision-making.”

Kisor v. Wilkie, 139 S. Ct. 2400, 2437 (2019) (Gorsuch,

J., concurring). And experience had shown that the

political branches “may be swayed by popular

sentiment to abandon the strictures of the . . . rules of

law.” Perez, 575 U.S. at 122 (Thomas, J., concurring);

see Plaut v. Spendthrift Farm, 514 U.S. 211, 219–23

(1995); The Federalist No. 81, at 482–83 (Alexander

Hamilton). Judges, by contrast, are insulated from

such pressures by life tenure and salary protections.

See United States v. Hatter, 532 U.S. 557, 567–69

(2001). And those counter-majoritarian safeguards

grant judges a unique capacity to “secure a steady,

upright, and impartial administration of the laws.”

The Federalist No. 78, at 464 (Alexander Hamilton).

The Constitution thus created a system to keep the

judiciary “truly distinct from both the legislature and

the executive.” Id. at 465. And, for nearly two

centuries, that division of authority governed in the

federal courts. This Court confirmed early on that “it

is not at liberty to surrender” its “solemn duty to

interpret the laws.” Dickson, 40 U.S. at 162. And,

“certainly,” this Court explained, it “would not be

bound to adopt [a statutory] construction given by the

head of a department” charged with enforcing the law.

Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 515 (1840).

Courts instead had to “decide for themselves” what is

“the meaning of a statute.” Chicago, Milwaukee & St.

Paul Rwy. Co. v. McCaull-Dinsmore Co., 253 U.S. 97,

99 (1920). That principle was “well established.”

Burnet v. Chicago Portrait Co., 285 U.S. 1, 16 (1932).

9

Then Chevron came along. There, a bare quorum

of this Court fashioned a two-step framework for

“review[ing] an agency’s construction of the statute

which it administers.” 467 U.S. at 842. Under that

framework, a court first asks “whether Congress has

directly spoken to the precise question at issue.” Id.

If it has, “the unambiguously expressed intent of

Congress” must be respected. Id. at 843. But, “if the

statute is silent or ambiguous with respect to the

specific issue,” then the reviewing court need only

determine “whether the agency’s answer is based on a

permissible construction of the statute.” Id. So long

as the agency’s construction is a “reasonable one,” the

court must defer to it—even when that interpretation

is not the best one. Id. at 843–44 & n.11.

Such deference to agencies on questions of law

violates the Constitution. As Justice Breyer once

observed, Chevron allows for “a greater abdication of

judicial responsibility to interpret the law than seems

wise.” Stephen Breyer, Judicial Review of Questions

of Law and Policy, 38 Admin. L. Rev. 363, 381 (1986).

The Framers would agree. Through Article III, they

“establishe[d] a structure for providing parties with

the independent judgment of the judges” that would

decide their cases.

Philip Hamburger, Is

Administrative Law Unlawful? 316 (2014). Chevron

deference’s abdication of that responsibility amounts

to “an abandonment of judicial office.” Id. It grants to

executive agencies the “judicial Power of the United

States,” U.S. Const. art. III, § 1, even though that

power cannot be “shared with the Executive Branch,”

United States v. Nixon, 418 U.S. 683, 704 (1974); see

Dickson, 40 U.S. (14 Pet.) at 162; Ex parte Randolph,

20 F. Cas. 242, 254 (C.C. Va. 1833) (Marshall, C.J.).

10

Statutory ambiguities do not justify this

unconstitutional shift of power. After all, “[t]hose who

ratified the Constitution knew that legal texts would

often contain ambiguities.” Perez, 575 U.S. at 119

(Thomas, J., concurring); see, e.g., The Federalist No.

37, at 225 (James Madison). But the Framers

extended the judicial Power to “all Cases” arising

under the Laws of the United States. See U.S. Const.

art. III, § 2. They thus understood Article III to vest

judges with the authority to “resolve these ambiguities

over time” in the cases or controversies that came

before the courts. Perez, 575 U.S. at 119 (Thomas, J.,

concurring); see also The Federalist No. 22, at 146

(Alexander Hamilton) (explaining that the “true

import” of “all” this Nation’s laws “must . . . be

ascertained by judicial determinations”). In ceding

the “judicial Power” to the Executive, Chevron

deference violates that original understanding.

The Chevron Court did not even try to reconcile its

shift of judicial responsibility with Article III. Instead,

it mistakenly articulated its deference regime as

though it were well-settled, see Aditya Bamzai, The

Origins of Judicial Deference to Executive

Interpretation, 126 Yale L.J. 908, 1000 (2017), and

defended it by citing our Constitution’s vesting of

policymaking “in the political branches,” Chevron, 467

U.S. at 866 (citation omitted). But it does not follow

that courts must defer to agencies on questions of law.

Once a policy choice has been made through a duly

enacted law, courts must always “fulfill[] their duty to

interpret the law and declare invalid agency actions

inconsistent with those interpretations.” GutierrezBrizuela, 834 F.3d at 1153 (Gorsuch, J., concurring).

11

Moreover, Chevron blurred the critical question of

which political branch’s policy choices matter.

“[W]hen it comes to the Nation’s policy, the

Constitution gives Congress the reins.” Biden v.

Nebraska, 143 S. Ct. 2355, 2381 (2023) (Barrett, J.,

concurring). That body possesses “[a]ll legislative

Powers” under the Constitution. U.S. Const. art. I,

§ 1. And Article I’s text “permits no delegation of those

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

457, 472 (2001). Accordingly, only Congress may

exercise the legislative power “to prescribe rules for

the regulation of the society.” The Federalist No. 75,

at 449 (Alexander Hamilton); see Fletcher v. Peck, 10

U.S. (6 Cranch) 87, 136 (1810) (Marshall, C.J.). And

to carry the force of law, those rules must survive the

gauntlet of bicameralism and presentment. See U.S.

Const. art. I, § 7, cl. 2. Executive agencies have no

place in that “single, finely wrought and exhaustively

considered, procedure.” INS v. Chadha, 462 U.S. 919,

951 (1983).

But Chevron deference inverts these principles by

transferring the lawmaking power to agencies. When

“Congress [does] not actually have an intent,” Chevron

allows the agency to moonlight as legislator with any

“reasonable policy choice” it wishes to advance. 467

U.S. at 845. That is true not only when Congress “did

not consider the question,” but also when “Congress

was unable to forge a coalition on either side.” Id. at

865. Congressional elections are the place to resolve

that deadlock and to decide whether, for instance, the

Clean Air Act should be amended. The confirmation

hearing for a new Administrator for the

Environmental Protection Agency is not. Yet, under

Chevron, new agency heads have carried with them

12

effective authority to make “reasonable policy choices”

that change the law under the pretense of

interpretation.

By allowing Members of Congress to punt hard

questions to agencies, Chevron deference shortcircuits the difficult and deliberative process for

legislation that the Framers thought necessary for the

preservation of liberty. See Seila Law LLC v. CFPB,

140 S. Ct. 2183, 2202–03 (2020). And the inevitable

result is that the people must endure the “excess of

lawmaking” that has plagued our government. The

Federalist No. 62, at 376 (James Madison); see Kisor,

139 S. Ct. at 2446–47 (Gorsuch, J., concurring)

(detailing the “explosive growth of the administrative

state over the last half-century”).

In short, Chevron deference is “more than a little

difficult to square with the Constitution of the

[F]ramers’ design.” Gutierrez-Brizuela, 834 F.3d at

1149 (Gorsuch, J, concurring). It “permit[s] executive

bureaucracies to swallow huge amounts of core

judicial and legislative power.”

Id.

And that

“accumulation of all powers, legislative, executive, and

judiciary, in the same hands,” is precisely what the

Framers set out to prevent when they carefully

separated those powers. The Federalist No. 47, at 301

(James Madison). This Court should restore that wellestablished division of authority and put Chevron

deference to rest.

B. Chevron Deference Violates Due Process.

The constitutional problems with Chevron

deference do not stop with the separation of powers.

Chevron deference also “invites the very sort of due

13

process” concerns that “the [F]ramers knew would

arise if the political branches intruded on judicial

functions.” Gutierrez-Brizuela, 834 F.3d at 1152

(Gorsuch, J., concurring).

The “‘first essential of due process of law’ [is] that

statutes must give people ‘of common intelligence’ fair

notice of what the law demands of them.” United

States v. Davis, 139 S. Ct. 2319, 2325 (2019) (quoting

Connally v. Gen. Constr. Co., 269 U.S. 385, 391

(1926)). But, under Chevron, “[f]air notice gives way

to vast uncertainty.” Buffington v. McDonough, 143

S. Ct. 14, 20 (2022) (Gorsuch, J., dissenting from the

denial of certiorari). Agencies flip-flop their statutory

interpretations “almost as often as elections change

administrations.”

Guedes v. Bureau of Alcohol,

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

(2020) (Gorsuch, J., statement respecting denial of

certiorari).

And the effect of that interpretive ping-pong is that

the people have trouble keeping up. Not only must

they “conform their conduct to the fairest reading of

the law they might expect from a neutral judge,” they

must also “guess whether the statute will be declared

ambiguous;” “guess again whether the agency’s initial

interpretation of the law will be declared ‘reasonable’;”

and then “guess again whether a later and opposing

agency interpretation will also be held ‘reasonable.’”

Id. (emphasis omitted). Those fair notice problems are

bad enough for sophisticated parties with teams of

lawyers. But they only get worse for ordinary

Americans who are subject to the administrative

state’s ever-expanding grasp over “almost every

14

aspect of daily life.” Free Enter. Fund v. Pub. Co.

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

Chevron is troubling in another respect. “Due

process guarantees ‘an absence of actual bias’ on the

part of a judge.” Williams v. Pennsylvania, 579 U.S.

1, 8 (2016) (quoting In re Murchison, 349 U.S. 133, 136

(1955)). But Chevron deference requires judges to

forsake their “duty of independent judgment” and

embrace “a form of systematic bias” toward that “most

powerful of parties”—the federal government. Philip

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

1187, 1203–04, 1212 (2016). It is simply not “fair in a

court of justice for judges to defer to one of the

litigants,” much less the government, on questions of

law. United States v. Havis, 907 F.3d 439, 451 (6th

Cir. 2018) (Thapar, J., concurring), rev’d en banc, 927

F.3d 382 (per curiam). That ceding of the judicial

power allows the agency “to be a judge in [its] own

cause.” The Federalist No. 10, at 74 (James Madison).

And it deprives regulated parties of their due process

right to a “neutral and detached adjudicator.”

Concrete Pipe & Prods. v. Constr. Laborers Pension

Tr., 508 U.S. 602, 618 (1993).

C. Chevron Deference Flouts The APA’s Text.

Just as Chevron deference runs afoul of the

Constitution, it also violates the APA. The statute

provides that the “reviewing court,” not the agency,

“shall decide all relevant questions of law.” 5 U.S.C.

§ 706. And it buttresses that command by tasking the

“reviewing court,” not the agency, with “interpret[ing]

constitutional and statutory provisions.” Id. The

“clear mandate” of this language is that questions of

law “shall be decided by the reviewing Court for itself,

15

and in the exercise of its own independent judgment.”

John Dickinson, Administrative Procedure Act: Scope

and Grounds of Broadened Judicial Review, 33 ABA

J. 434, 516 (1947).

And, after exercising that

judgment, the court must “hold unlawful and set

aside” any agency action “not in accordance with law.”

5 U.S.C. § 706(2)(A); see also id. § 706(2)(C) (directing

the same, for agency action “in excess of statutory

jurisdiction, authority, or limitations”). There is no

place for Chevron deference in that statutory scheme.

This is only reinforced by the fact that “section 706

established deferential standards of review for issues

other than ‘relevant questions of law.’” Bamzai, supra,

at 985 (emphasis added); see 5 U.S.C. § 706(2)(A)

(“arbitrary, capricious, [or] an abuse of discretion”); id.

§ 706(2)(E) (“substantial evidence”). Thus, “Congress

knew how to write a deferential standard into [the]

statute when it wanted to do so.” Bamzai, supra, at

985. That it did not for questions of statutory

interpretation is telling. Congress instead chose to

“place the court’s duty to interpret statutes on an

equal footing with its duty to interpret the

Constitution, and courts never defer to agencies in

reading the Constitution.” Baldwin v. United States,

140 S. Ct. 690, 692 (2020) (Thomas, J., dissenting from

the denial of certiorari) (citation omitted).

Rather than heed the unmistakable command of

§ 706, Chevron ignored it. The Court “did not even

bother to cite” the APA anywhere in its analysis. Id.

(citation omitted). It instead justified deference to

administrative constructions on two grounds: first,

that “statutory ambiguity represents an ‘implicit’

delegation to an agency to ‘interpret a statute which it

16

administers’”; and, second, that “‘policy choices’ should

be left to Executive Branch officials” who have

expertise and are “‘directly accountable to the people.’”

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1629–30

(2018) (quoting Chevron, 467 U.S. at 841, 844, 865).

Neither justification is persuasive.

Take the implicit delegation rationale. “[W]here

exactly has Congress expressed this intent” that a

statutory ambiguity constitutes a delegation to the

agency?

Gutierrez-Brizuela, 834 F.3d at 1153

(Gorsuch, J., concurring). The answer is nowhere.

“Congress so rarely discloses (or, perhaps, even has) a

view on” the proper amount of judicial deference in

this context “as to make a search for legislative intent

chimerical and a conclusion regarding that intent

fraudulent in the mine run of cases.” David J. Barron

& Elena Kagan, Chevron’s Nondelegation Doctrine,

2001 Sup. Ct. Rev. 201, 203.

The Chevron Court cited no empirical basis for its

“casual equation of ambiguity with a deliberate

delegation.”

Cynthia R. Farina, Statutory

Interpretation and the Balance of Power in the

Administrative State, 89 Colum. L. Rev. 452, 475

(1989). And none has materialized in the decades

since. While some congressional staffers acknowledge

an awareness of Chevron deference, they have also

made clear that “their knowledge of Chevron does not

mean that they intend to delegate whenever

ambiguity remains in finalized statutory language.”

Abbe R. Gluck & Lisa Schultz Bressman, Statutory

Interpretation from the Inside—An Empirical Study of

Congressional Drafting, Delegation, and the Canons:

Part I, 65 Stan. L. Rev. 901, 996 (2013).

17

At any rate, even if there were an empirical basis

for Chevron’s “fictionalized statement of legislative

desire,” Barron & Kagan, supra, at 212, there is no

lawful reason to elevate such amorphous intent into

the legal rule that Chevron adopted. After all, “[t]he

text is the law, and it is the text that must be

observed.” Antonin Scalia, A Matter of Interpretation:

Federal Courts and the Federal System 22 (1997). If

legislators do not translate their desires into statutory

text, those desires are not law. Far from adopting

Chevron deference, Congress has enacted the contrary

and “unqualified command” of § 706, which “instructs

reviewing courts to ‘decide all relevant questions of

law’”—“by [their] own lights.” Kisor, 139 S. Ct. at 2432

(Gorsuch, J., concurring) (emphasis added) (quoting 5

U.S.C. § 706). This Court “cannot replace th[at] actual

text with speculation as to Congress’ intent.” Henson

v. Santander Consumer USA Inc., 582 U.S. 79, 89

(2017) (citation omitted).

Nor should the Court stand by Chevron’s claim that

it increases accountability.

In reality, Chevron

deference undermines the political accountability of

our constitutional structure. “[B]y careful design,” the

Framers prescribed a deliberative legislative process

with “many accountability checkpoints.” Dep’t of

Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 61 (2015)

(Alito, J., concurring).

They “insisted that any

proposed law must win the approval of two Houses of

Congress—elected at different times, by different

constituencies, and for different terms in office—and

either secure the President’s approval or obtain

enough support to override his veto.” Gundy v. United

States, 139 S. Ct. 2116, 2134 (2019) (Gorsuch, J.,

dissenting). In that way, the Framers ensured that

18

“[t]he sovereign people would know, without

ambiguity, whom to hold accountable for the laws”

they must follow. Id.

“It would dash th[at] whole scheme if Congress

could give its power away to an entity that is not

constrained by those checkpoints.” Ass’n of Am. R.Rs.,

575 U.S. at 61 (Alito, J., concurring). But Chevron

deference does precisely that. It invites Congress to

pass the buck on hard policy choices. See Chevron, 467

U.S. at 865. And it incentivizes agencies “to be

extremely aggressive in seeking to squeeze [their]

policy goals into ill-fitting statutory authorizations

and restraints.” Kavanaugh, supra, at 2150. With

more interpretive leeway, and thus more authority to

fill alleged statutory gaps, those agencies assume

more lawmaking power—contrary to the structure of

our Constitution.

Indeed, the Chevron Court acknowledged that

“agencies are not directly accountable to the people.”

467 U.S. at 865. Agency heads are not themselves

elected, and although Article II “empowers the

President to keep federal officers accountable,

administrative agencies enjoy in practice a significant

degree of independence.” City of Arlington v. FCC, 569

U.S. 290, 313 (2013) (Roberts, C.J., dissenting); see

also Elena Kagan, Presidential Administration, 114

Harv. L. Rev. 2245, 2250 (2001) (“[N]o President (or

his executive office staff) could, and presumably none

would wish to, supervise so broad a swath of

regulatory activity.”).

As such, agencies may not usurp the legislature’s

power to make the laws that restrict the people’s

liberty. Nor can they usurp the judiciary’s power to

19

interpret the law on the basis of “expertise.” Chevron,

467 U.S. at 865. “[C]ourts, not agencies, are the true

experts” in matters of statutory interpretation.

Arangure v. Whitaker, 911 F.3d 333, 342 (6th Cir.

2018) (Thapar, J.). And that is why Congress, through

the APA, confirmed the judicial department’s power to

“interpret . . . statutory provisions” and “decide all

relevant questions of law.” 5 U.S.C. § 706.

* * *

In sum, Chevron deference “has no basis in the

Administrative Procedure Act.” Kavanaugh, supra, at

2150. It is “an atextual invention by courts,” id., and

it represents “a judge-made doctrine for the abdication

of the judicial duty,” Gutierrez-Brizuela, 834 F.3d at

1152 (Gorsuch, J., concurring). Chevron deference is

unconstitutional through and through, and even on its

own terms, its reasoning is “exceedingly weak.”

Dobbs, 142 S. Ct. at 2270. The time has come to

correct this error and restore the balance of powers

under our Constitution.

II. The Traditional Stare Decisis Factors Cannot

Save Chevron Deference.

In addition to being egregiously wrong, Chevron

deference undermines reliance interests, has proven

unworkable, and has led to absurd results. It is no

wonder that eight state supreme courts within the last

quarter-century have discarded precedents that once

enshrined Chevron-like deference regimes. This Court

should also repudiate Chevron deference as

inconsistent “with the Constitution, the APA, and over

100 years of judicial decisions.” Baldwin, 140 S. Ct. at

20

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

certiorari).

A. Chevron Deference Undermines Reliance

Interests.

Chevron deference upends predictability and

undermines reliance interests by forcing the citizenry

to play a make-or-break guessing game. It requires a

person to guess first the meaning of a statute; guess

second whether the statute is “ambiguous”; guess

third whether an agency’s interpretation of the

ambiguity is “reasonable”; and guess fourth whether

the agency might alter course and change its prior

interpretation. Guess wrong at any turn and a person

may find themselves subject to civil or even criminal

liability. See Guedes, 140 S. Ct. at 790–91 (Gorsuch,

J., statement respecting denial of certiorari).

Try as it might, the judiciary offers the public little

repose from this considerable fair notice problem.

Even after a court has offered its best reading of the

statutory text, this Court has held that it “follows from

Chevron itself” that an agency may switch interpretive

gears and reverse the court’s construction. Nat’l Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545

U.S. 967, 982 (2005). Chevron therefore impairs

“reliance on judicial decisions” and “the evenhanded,

predictable, and consistent development” of the law—

the very interests stare decisis is meant to protect.

Payne v. Tennessee, 501 U.S. 808, 827 (1991). An

agency shifting from one “reasonable” interpretation

to another leaves citizens unsure whether today’s

lawful conduct will become next week’s lawbreaking.

The citizenry has no assurance that an agency will not

pull the rug out “from under them tomorrow, the next

21

day, or after the next election.” Gutierrez-Brizuela,

834 F.3d at 1158 (Gorsuch, J., concurring). And this

concern is hardly theoretical:

The government

changes its mind all the time. See, e.g., Tr. of Oral Arg.

35, Jones v. Hendrix, 599 U.S. ___ (2023) (No. 21-857)

(Gorsuch, J.) (noting that the government had, in the

past, taken diametrically opposed positions on the

meaning of a statute and then sought to offer a

different one entirely).

Chevron deference also undermines regulatory

predictability and fosters commercial instability.

Financial markets thrive when the law does not

change along with agency heads. See Nat’l Bank v.

Whitney, 103 U.S. 99, 102 (1880) (“The prosperity of a

commercial community depends, in a great degree,

upon the stability of the rules by which its

transactions are governed.”). But the interpretive

shapeshifting that Chevron permits “makes it

impossible for individuals, corporations, and

prospective investors to make wise decisions.”

Richard J. Pierce, Jr., The Combination of Chevron

and Political Polarity Has Awful Effects, 70 Duke L.J.

Online 91, 103 (2021). Whether it be “more important

that the applicable rule of law be settled than that it

be settled right,” Agostini v. Felton, 521 U.S. 203, 235

(1997) (citation omitted)), Chevron deference ensures

that some questions will never be settled at all.

Reliance considerations thus tip decidedly against

Chevron. The Court has long recognized that reliance

interests are at their zenith for stare decisis purposes

when property and contractual rights are at stake.

See Payne, 501 U.S. at 828. Those, however, are

precisely the sorts of interests that Chevron upsets.

22

And while agencies might have promulgated rules

assuming they would receive Chevron deference in the

courts, stare decisis hardly exists to ensure that

government agencies can retain unlawful power.

Simply put, there are no “legitimate reliance

interests” here that might justify retention of the

doctrine—particularly because Chevron does not

provide “a clear or easily applicable standard” upon

which anyone can rely. South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080, 2086 (2018) (alteration adopted;

citation omitted).

B. Chevron

Deference

Has

Proven

Unworkable And Has Produced Absurd

Results.

Determining whether a statutory phrase is

“ambiguous” for Chevron purposes has proven

anything but predictable.

As this Court has

recognized, “there is no errorless test for identifying or

recognizing ‘plain’ or ‘unambiguous’ language.”

United States v. Turkette, 452 U.S. 576, 580 (1981).

“One judge’s clarity is another judge’s ambiguity.”

Kavanaugh, supra, at 2137. As a result, Chevron’s

application varies wildly across the bench, fostering

uncertainty, yielding absurd results, and creating an

all-around unworkable doctrine. Compare Pereira v.

Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J.,

concurring) (criticizing the “cursory analysis” and

“reflexive deference” of lowers courts too ready to find

ambiguity), with Raymond M. Kethledge, Ambiguities

and Agency Cases: Reflections After (Almost) Ten

Years on the Bench, 70 Vand. L. Rev. En Banc 315, 323

(2017) (noting that, in almost a decade of service, he

has never reached step two of Chevron).

23

Two recent decisions from this Court illustrate the

point. In American Hospital Association, 142 S. Ct.

1896, the D.C. Circuit applied Chevron deference to

the question whether the Department of Health and

Human Services could, under the Medicare Act, adjust

the reimbursement rate of certain outpatient drugs.

See Am. Hosp. Ass’n v. Azar, 967 F.3d 818, 828 (D.C.

Cir. 2020). The D.C. Circuit deemed the statute

ambiguous

and

the

agency’s

interpretation

reasonable. Id. This Court reversed, concluding that

the statute foreclosed the agency’s interpretation. See

Am. Hosp. Ass’n, 142 S. Ct. at 1903–06. Yet, in doing

so, this Court declined to even mention the deference

framework that had provided the basis for the decision

below, “disinfecting the question presented of any

direct reference to Chevron” and sterilizing its opinion

altogether of “a host of Chevronian buzzwords.”

Leading Case: American Hospital Ass’n v. Becerra,

136 Harv. L. Rev. 480, 480, 483 (2022).

Empire Health Foundation unfolded in a similar

manner. 142 S. Ct. 2354. There, the Ninth Circuit

split from its sister circuits, which had deferred to the

agency at Chevron step two, in concluding that the

relevant statute was unambiguous. See Empire

Health Found. for Valley Hosp. Med. Ctr. v. Becerra,

958 F.3d 873, 884–86 (9th Cir. 2020). This Court

reversed, holding that the relevant statute disclosed a

“surprisingly clear meaning”—not the one chosen by

the Ninth Circuit, but “the one chosen by HHS.”

Empire Health Found., 142 S. Ct. at 2362. Again, this

Court provided no further explanation about how the

lower courts should assess Chevron’s elusive contours.

It simply ignored the doctrine altogether. Thus, in

addition to being unworkable, the Chevron framework

24

has done no work at all in this Court’s recent

decisions.

But “Schrödinger’s Chevron” continues to foster

uncertainty in the lower courts. Leading Case, supra,

at 486. It remains good law even as this Court has all

but stopped applying it. The Fifth Circuit’s decision

in Mexican Gulf Fishing Co. v. United States

Department of Commerce, 60 F.4th 956 (5th Cir. 2023),

illustrates this confusion. There, a Fifth Circuit panel

disagreed about how to interpret this Court’s

disregard of Chevron in American Hospital

Association and Empire Health Foundation. The

majority explained that “Chevron has become

something of the-precedent-who-must-not-be-named,”

left “unmentioned by the Supreme Court in two recent

decisions addressing the reasonableness of agency

action,” but it felt duty-bound to apply it “until and

unless it is overruled by our highest Court.” Id. at 963

n.3. Meanwhile, Judge Oldham wrote separately to

contend that the Supreme Court had “directed us to

use ‘the traditional tools of statutory interpretation’ in

lieu of Chevron.” Id. at 976 (Oldham, J., concurring)

(quoting Am. Hosp. Ass’n, 142 S. Ct. at 1906).

The dispute over whether and how to apply “the

Lord Voldemort of Administrative Law,” Aposhian v.

Wilkinson, 989 F.3d 890, 896 (10th Cir. 2021)

(Tymkovich, C.J., dissenting), is compounded by the

government’s increased reluctance in recent years to

invoke Chevron in the first place, see Cargill v.

Garland, 57 F.4th 447, 465–69 (5th Cir. 2023) (en

banc) (cataloguing cases in which the government has

declined to invoke Chevron); see also Kent Barnett &

Christopher J. Walker, Chevron in the Circuit Courts,

25

116 Mich. L. Rev. 1 (2017) (compiling evidence of

Chevron’s inconsistent application in the lower

courts). And that uncertainty is only heightened by

the threshold need for lower courts to determine at socalled “step zero” whether Chevron even applies. See

Mead, 533 U.S. at 241 (Scalia, J., dissenting)

(castigating the majority’s “totality of the

circumstances” approach for deciding whether

Chevron applies); see also King v. Burwell, 576 U.S.

473, 485–86 (2015) (carving out “question[s] of deep

economic and political significance” from Chevron’s

reach (quotation marks omitted)).

Indeed, the facts of this case illustrate the absurd

results that flow from Chevron. All agree that the

Magnuson-Stevens Act requires vessel owners to

make room onboard for federal observers so that they

may ensure compliance with a slew of federal

regulations. See 16 U.S.C. § 1853. But without any

express statutory authorization, the National Marine

Fisheries Service (“NMFS”) has required Petitioners

to fund the government’s inspection regime. See

Pet.App.13 (conceding that no provision of the Act

“explicitly allows the Service to pass on to industry the

costs of monitoring requirements included in fishery

management plans”); see also Pet.App.29. The court

below nevertheless endorsed the agency’s position,

concluding that Chevron deference allowed the agency

to seize power that Congress had not granted it. See

Pet.App.16.

The D.C. Circuit not only reached the wrong result

on the statute, but the opinions below encapsulate

Chevron’s incoherence. Purporting to apply Chevron

faithfully, the four judges who considered this case

26

reached three different positions. The district court

found the statute unambiguous in granting NMFS

authority. Pet.App.62. The D.C. Circuit majority

found it ambiguous and so deferred to the agency.

Pet.App.5. And Judge Walker in dissent viewed the

statute as unambiguous in favor of petitioners.

Pet.App.21.

The decision below is hardly anomalous in

exposing the absurdities that Chevron has created. In

Catskill Mountains Chapter of Trout Unlimited, Inc.

v. City of New York, 273 F.3d 481 (2d Cir. 2001), the

Second Circuit concluded that the “ordinary meaning

of the [Clean Water Act’s] text” required persons to

obtain a permit to transfer water from one body of

water to another when pollutants would be added

along the way. Id. at 493. The court noted, however,

that had the EPA’s contrary position “been adopted in

a rulemaking or other formal proceeding,” the case

may have come out the other way. Id. at 490. Fast

forward to 2017. By then, the EPA had issued a rule

adopting the agency’s preferred interpretation that

conflicted with the Second Circuit’s prior

interpretation. See Catskill Mountains Chapter of

Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 503 (2d

Cir. 2017). The Second Circuit acquiesced, deferring

under Chevron even though it had previously “rejected

the [EPA’s interpretation] based on the plain language

of the Act.” Id. at 545 (Chin, J., dissenting).

These cases illustrate how Chevron deference

ossifies uncertainty. It invites absurd outcomes

unsupported by the actual text of the relevant

statutes. And it engenders inconsistency in the lower

courts. Abandoning Chevron is the only way to correct

27

course. Even though this Court may have departed

from Chevron deference sub silentio, lower courts

possess no latitude to do the same. See Mallory, 143

S. Ct. at 2038.

C. The Experience In States That Have

Repudiated Similar Deference Doctrines

Confirms That There Is No Good Reason

To Preserve Chevron’s Unlawful Regime.

If the Court required any more reasons to jettison

Chevron deference, then it might rely on the

experience of the many states that have recently

rejected similar deference regimes under state law.

See Jeffrey S. Sutton, Who Decides?: States as

Laboratories of Constitutional Experimentation 224–

25 (2022). In fact, in the last twenty-five years, the

highest courts of at least eight states have either

overruled or walked back precedent allowing for

administrative deference akin to Chevron. And no

other state has moved in the opposite direction.

The states that have eschewed Chevron-like

deference regimes range from the small to the large,

from the agricultural to the industrial, and from the

conservative to the progressive. They include the

jurisdiction of choice for businesses across the country

(Delaware), see Delaware Secretary of State Jeffrey W.

Bullock, Delaware Division of Corporations: 2022

Annual Report, bit.ly/3XYQEHr, the state with the

greatest percentage population increase under the

2020 census (Utah), see United States Census Bureau,

2020 Census: Percent Change in Resident Population

for the 50 States, the District of Columbia, and Puerto

Rico: 2010 to 2020, bit.ly/3Dph9wo, and some of the

fastest growing state economies in the country

28

(including Wisconsin, Michigan, Colorado, and

Arkansas), see Bureau of Economic Analysis, Gross

Domestic Product by State and Personal Income by

State, Year 2022, bit.ly/3D4Lujl.

Consider, as one example, the State of Wisconsin.

Over the course of decades, Wisconsin courts had

created a legal framework in which the judiciary

would, depending on the circumstances, afford an

agency’s statutory interpretation either “great weight”

or “due weight.” Harnischfeger Corp. v. Lab. & Indus.

Rev. Comm’n, 539 N.W.2d 98, 102 (Wis. 1995). That

changed with the Wisconsin Supreme Court’s decision

in Tetra Tech EC, Inc. v. Wisconsin Department of

Revenue, 914 N.W.2d 21 (Wis. 2018). After declaring

that “[t]he principle of stare decisis counsels that we

depart from our precedents only when circumstances

unavoidably superannuate our commitment to them,”

the Wisconsin court evaluated numerous stare decisis

factors to decide whether to reconsider its deference

decisions.

Id. at 54.

Based largely on the

consideration that the precedent was “unsound in

principle,” the court scuttled its deference regime

because it “[did] not respect the separation of powers,

[gave] insufficient consideration to the parties’ due

process interest in a neutral and independent

judiciary, and risk[ed] perpetuating erroneous

declarations of the law.” Id. (citation omitted). The

court also declared that upholding erroneous

precedents often does “more damage to the rule of law”

and “perpetuat[es] injustice,” which cautioned in favor

of returning the “judicial power ceded by [the]

deference doctrine . . . to its constitutionally-assigned

residence.” Id. (citation omitted).

29

Other state supreme courts have also rejected

precedent and returned judicial power to the judiciary.

Take the State of Delaware. In Public Water Supply

Co. v. DiPasquale, 735 A.2d 378 (Del. 1999), the

Delaware Supreme Court confronted a line of

decisions that promised “substantial weight to the

[agency’s] interpretation of a statute it is empowered

to enforce, provided that construction is not clearly

erroneous.” E. Shore Nat. Gas Co. v. Del. Pub. Serv.

Comm’n, 637 A.2d 10, 15 (Del. 1994). The Delaware

Supreme Court “overruled” those cases, because

“[s]tatutory interpretation is ultimately the

responsibility of the courts.” DiPasquale, 735 A.2d at

382. And it went further still by declining to embrace

Chevron “with respect to review of an agency’s

interpretation of statutory law.” Id. at 383. The court

instead doubled down on the proper role of the

judiciary: “plenary” review of statutory questions. Id.

Mississippi adds to the noteworthy pattern. The

State’s precedent once called for granting “great

deference to [an] agency’s interpretation” of a statute.

Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div.

of Medicaid, 21 So.3d 600, 606 (Miss. 2009). But

Mississippi’s supreme court changed gears just a few

years ago. In King v. Mississippi Military Department,

the court took the opportunity to “step fully into the

role the [Mississippi] Constitution of 1890 provides for

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

245 So. 3d 404, 408 (Miss. 2018). A contrary

conclusion would turn “the role of the judicial branch,”

which is to interpret duly enacted statutes, on its

head. Id.

30

The Michigan Supreme Court has sung a similar

tune, declining to import “the vagaries of Chevron

jurisprudence” into its own. In re Complaint of Rovas

Against SBC Mich., 754 N.W.2d 259, 271 (Mich. 2008).

As that court explained, Chevron conflicts with

“separation of powers principles” because it delegates

“the judiciary’s constitutional authority to construe

statutes to another branch of government.” Id. at 272.

Although Ohio seldom likes to come in second to

Michigan, the Buckeye State has added its voice to

this chorus. The Ohio Supreme Court recently

rejected all forms of mandatory deference and cited,

among other state supreme courts, that of Michigan.

See TWISM Enters., L.L.C. v. State Bd. of Registration

for Prof. Eng’rs and Surveyors, ___ N.E.3d ___, 2022

WL 17981386, at *8 (Ohio Dec. 29, 2022). Thus, the

Ohio court concluded that while judges may consider

an agency’s view, “[w]hat a court may not do is

outsource the interpretive project to a coordinate

branch of government.” Id.

Those are not the only state courts that have

abandoned prior Chevron-like deference regimes;

Kansas, Colorado, and Arkansas have too. See

Douglas v. Ad Astra Info. Sys., L.L.C., 293 P.3d 723,

728 (Kan. 2013) (declining to follow earlier precedent

that called for granting deference to state agency’s

interpretations because the Kansas Supreme Court

has “abandoned, abrogated, disallowed, disapproved,

ousted, overruled, and permanently relegated [that

approach] to the history books”); Nieto v. Clark’s

Market, Inc., 488 P.3d 1140, 1149 (Colo. 2021)

(holding, despite prior precedent that “appeared to

embrace Chevron-style deference,” that Colorado

31

courts need not “defer to a reasonable agency

interpretation of an ambiguous statute . . . if a better

interpretation is available”); Myers v. Yamato Kogyo

Co., 597 S.W.3d 613, 617 (Ark. 2020) (declaring that

“[b]y giving deference to agencies’ interpretations of

statutes, the court effectively transfers the job of

interpreting the law from the judiciary to the

executive,” and abrogating prior precedent that

granted deference to state agencies). And Utah has

“openly repudiated” Chevron’s misguided approach

from the start. Hughes Gen. Contractors, Inc. v. Utah

Labor Comm’n, 322 P.3d 712, 717 (Utah 2014) (Lee,

J.).

Indeed, the past quarter century reflects a

remarkable trend among the state courts in rejecting

Chevron deference and restoring the judiciary’s

primacy in statutory interpretation. Notably, no state

high court has grown meaningfully more deferential

to agencies during the period. See Daniel Ortner, The

End of Deference: How States (and Territories and

Tribes) Are Leading a (Sometimes Quiet) Revolution

Against Administrative Deference Doctrines, at 3 n.3

(2020), https://bit.ly/3NgTaoB. But many state courts,

when confronted with contrary precedent, have

honored their duty to “say what the law is.” Marbury,

5 U.S. (1 Cranch) at 177. This Court should remove

any doubt that federal courts must do the same.

32

CONCLUSION

Amicus respectfully urges this Court to repudiate

Chevron deference, vacate the judgment below, and

remand for the lower courts to do what the

Constitution and APA both demand of them—to

discern and expound the best interpretation of the

statute.

Respectfully submitted,

WILLIAM P. BARR

TORRIDON LAW

PLLC

1750 Tysons Blvd.

Suite 1800

Tysons, VA 22102

BRIAN A. KULP

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

STEVEN A. ENGEL

Counsel of Record

MICHAEL H. MCGINLEY

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

Counsel for Amicus Curiae

July 24, 2023