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

Supreme Court briefSep 22, 2023

Ask Donna

What actually matters in this document.

Text

No. 22-451

In The

Supreme Court of the United States

Loper Bright Enterprises, et al.,

Petitioners,

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 THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

Harold C. Becker

(Counsel of Record)

Matthew Ginsburg

Andrew Lyubarsky

815 Black Lives Matter Plaza, N.W.

Washington, D.C. 20006

(202) 637-5310

cbecker@aflcio.org

September 22, 2023

Counsel for American Federation

of Labor and Congress of Industrial

Organizations (AFL-CIO)

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST............................

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

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

I. This Court Has Uniformly Applied the

Principles of Deference Systematized in

Chevron under the NLRA Both Before

and After that Decision..............................

II. Chevron Deference Under the NLRA

and Other Federal Statutes is Consistent

With And, Indeed, Required by the

Constitution................................................

A. Congress May Legislate in Broad

Terms and Designate an Agency to

Elaborate Those Terms.........................

B. “What the Law Is” Includes Congress’

Instruction that an Agency Has

Discretion to Define and Elaborate

the Broad Terms in a Statute...............

C. The Constitution Gives Congress the

Authority to Enact Legislation that

Can Be Effective in a Complex,

Dynamic, Modern Society.....................

D. Performing the Legislatively Assigned

Task of Further Specifying the Broad

Terms of a Law is Appropriate for

Agencies, But Not Courts.....................

III. Congress Vests the Task of Further

Specifying the Broad Terms of Laws in

Agencies for Sound Reasons......................

TABLE OF CONTENTS—Continued

Page

A. Elaboration by a Single Agency and

the Required, Accompanying

Deference Promotes the Uniform

Application of Federal Law...................

B. Administrative Agencies Have

Expertise that the Courts Lack............

IV. Chevron Deference Does Not Create a

Judicial Rubber Stamp...............................

V. Overturning Chevron Would Unsettle

Decades of Precedent Under the NLRA

and Numerous Other Statutes, Increase

the Workload of Federal Judges, and

Erode Public Confidence in the Courts.....

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

iii

TABLE OF AUTHORITIES

Page

Cases

ABF Freight Sys., Inc. v. NLRB,

510 U.S. 317 (1994)..........................................

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998)..........................................

Am. Ship Bldg. Co. v. NLRB,

380 U.S. 300 (1965)..........................................

Amalgamated Ass’n of St., Elec. Ry. & Motor

Coach Emps. of Am. v. Lockridge,

403 U.S. 274 (1971)..........................................

Auciello Iron Works Inc. v. NLRB,

517 U.S. 781 (1996).......................................... 4, 11

Auer v. Robbins,

519 U.S. 452 (1997)..........................................

Bayside Enters., Inc. v. NLRB,

429 U.S. 298 (1977)..........................................

Beth Israel Hosp. v. NLRB,

437 U.S. 483 (1978).......................................

13, 19

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945)..........................................

Charles D. Bonanno Linen Serv., Inc. v. NLRB,

454 U.S. 404 (1982)..........................................

Chevron v. Nat. Res. Defense Council, Inc.,

467 U.S. 837 (1984).......... 1, 3, 5, 14, 17, 23, 27, 29

Chi., Burlington & Quincy Ry. Co. v. Babcock,

204 U.S. 585 (1907)..........................................

City of Arlington v. FCC,

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

5, 9, 13, 28

Commc’ns Workers of Am. v. Beck,

487 U.S. 735 (1988)..........................................

TABLE OF AUTHORITIES—Continued

Page

Conkright v. Frommert,

559 U.S. 506 (2010).......................................

12, 22

Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council,

485 U.S. 568 (1988)..........................................

Epic Systems Corp. v. Lewis,

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

Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27 (1987)............................................

Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101 (1989)..........................................

Ford Motor Co. v. NLRB,

441 U.S. 488 (1979)..........................................

3, 4

Ford Motor Credit Co. v. Milhollin,

444 U.S. 555 (1980)..........................................

Garner v. Teamsters, Chauffeurs & Helpers

Loc. Union No. 776,

346 U.S. 485 (1953)..........................................

Gundy v. United States,

139 S. Ct. 2116 (2019)......................................

Hoffman Plastic Compounds, Inc. v. NLRB,

535 U.S. 137 (2002)..........................................

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928)..........................................

Kisor v. Wilkie,

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

9, 26, 27

Marbury v. Madison,

5 U.S. 137 (1803).............................................. 9, 10

Metro. Life Ins. Co. v. Glenn,

554 U.S. 105 (2008)..........................................

TABLE OF AUTHORITIES—Continued

Page

Mistretta v. United States,

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

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

Internet Servs.,

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

Nixon v. United States,

506 U.S. 224 (1993)..........................................

NLRB v. A.J. Tower Co.,

329 U.S. 324 (1946)..........................................

NLRB v. Bell Aerospace Co.,

416 U.S. 267 (1974)..........................................

NLRB v. Curtin Matheson Scientific, Inc.,

494 U.S. 775 (1990)..........................................

NLRB v. Erie Resistor Corp.,

373 U.S. 221 (1963).......................................... 4, 13

NLRB v. Health Care & Ret.

Corp. of Am.,

511 U.S. 571 (1994)..........................................

NLRB v. Hearst Publications, Inc.,

322 U.S. 111 (1944).......................................... 3, 24

NLRB v. Ins. Agents’ Int’l Union,

361 U.S. 477 (1960).......................................... 6, 18

NLRB v. J. Weingarten, Inc.,

420 U.S. 251 (1975).................................

16, 25, 28

NLRB v. Ky. River Cmty. Care, Inc.,

532 U.S. 706 (2001)..........................................

NLRB v. Seven-Up Bottling Co.,

344 U.S. 344 (1953).............................. 3, 23, 24, 28

NLRB v. Steelworkers,

357 U.S. 357 (1958).......................................... 4, 24

TABLE OF AUTHORITIES—Continued

Page

NLRB v. Truck Drivers Loc. Union No. 449,

353 U.S. 87 (1957).........................................

18, 19

NLRB v. Waterman S.S. Corp.,

309 U.S. 206 (1940)..........................................

NLRB v. Wyman-Gordon Co.,

394 U.S. 759 (1969)....................................

6, 7, 28

Pattern Makers League of N. Am. v. NLRB,

473 U.S. 95 (1985)............................................

Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941)...................................

Republic Aviation Corp. v. NLRB,

324 U.S. 793 (1945).......................

5, 13, 23

3, 15, 19, 23, 27

SEC v. Chenery Corp.,

318 U.S. 80 (1943)............................................

Southern S.S. Co. v. NLRB,

316 U.S. 31 (1942)............................................

Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568 (1985)..........................................

United States v. Haggar Apparel Co.,

526 U.S. 380 (1999)..........................................

United States v. Mead Corp.,

533 U.S. 218 (2001).......................................... 9, 16

United States v. Shimer,

367 U.S. 374 (1961)..........................................

United Steelworkers of Am. v. Am. Mfg. Co.,

363 U.S. 564 (1960)..........................................

West Virginia v. EPA,

142 S. Ct. 2587 (2022)......................................

vii

TABLE OF AUTHORITIES—Continued

Page

Yakus v. United States,

321 U.S. 414 (1944)..........................................

Administrative Decisions

Excelsior Underwear Inc.,

156 N.L.R.B. 1236 (1966).................................

6, 8

Constitutional Provisions

u.s. consT. art. I, § 3, cl. 6..................................

u.s. consT. art. III...........................................

11, 12

Statutes

5 U.S.C. § 701(a)(2)..............................................

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

7 U.S.C. § 136 et seq.............................................

9 U.S.C. § 2...........................................................

9 U.S.C. § 9...........................................................

9 U.S.C. § 10.........................................................

29 U.S.C. § 156..................................................... 6, 10

29 U.S.C. § 157.....................................................

29 U.S.C. § 158(a)(1)............................................

29 U.S.C. § 159(c)(1)............................................

29 U.S.C. § 160.....................................................

29 U.S.C. § 1001 et seq.........................................

Regulations

29 C.F.R. § 102.60 et seq......................................

29 C.F.R. § 102.62(d) (2019)................................

viii

TABLE OF AUTHORITIES—Continued

Legislative Materials

S. Rep. No. 74-573 (1935).................................

Page

10, 20

Other Authorities

Kent Barnett, Christina L. Boyd &

Christopher J. Walker,

Administrative Law’s Political Dynamics,

71 Vand. L. rev. 1463 (2018)..........................

Peter L. Strauss, One Hundred Fifty Cases

Per Year: Some Implications of the Supreme

Court’s Limited Resources for Judicial

Review of Agency Action,

87 colum. L. rev. 1093 (1987)............... 22, 25, 30

STATEMENT OF INTEREST

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO) is a federation of

60 national and international labor organizations

with a total membership of over 12.5 million working

people.1 The AFL-CIO has played a central role in

advocating for and enforcing federal laws that protect

American workers from before the enactment of the

National Labor Relations Act of 1935 (NLRA) until today. The AFL-CIO has frequently appeared before

federal agencies designated by Congress to elaborate,

administer and enforce those laws—the National Labor Relations Board (NLRB), the Occupational Safety

and Health Administration (OSHA), and others. Finally, the AFL-CIO has frequently appeared in court,

including in this Court, arguing for and against deference to such agency action under Chevron v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984),

and its precursors.

The AFL-CIO believes that Chevron is both a constitutionally permissible and practically necessary

part of a functional system of government in the 21st

century. We file this brief so that the federal government can continue effectively to protect American employees and employers, elaborate their respective

rights, and improve their well-being.

SUMMARY OF ARGUMENT

We use this Court’s precedent under the NLRA as

an example to demonstrate the following:

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

and no person or entity, other than the amicus curiae, made a monetary contribution to the preparation or submission of this brief.

First, this Court has uniformly applied the principles systematized in Chevron both before and after

that decision.

Second, Chevron deference is consistent with and,

indeed, required by the Constitution. Congress may

and often must legislate in broad terms and designate

an agency to elaborate those terms in order to effectively exercise its authority under Article I. Congress’

instruction that an agency has discretion to elaborate

the broad terms of a statute is part of what “the law

is,” and thus part of what the judicial branch has a

duty to articulate and apply. This Court has recognized that the Constitution permits Congress to do its

job in an increasingly complex society via this necessary degree of delegation to agencies. Congress properly designates agencies to elaborate the broad terms

of statutes, as such elaboration often involves a balancing of interests that is appropriate for the political

branches, but not the judiciary.

Third, Congress has sound reasons for designating

an agency to elaborate the broad terms of a statute,

including the promotion of uniform application of federal law and the development and utilization of subject matter expertise.

Fourth, Chevron has not created a judicial rubber

stamp. Courts have overturned agency actions under

both prongs of Chevron and this Court has developed

a set of adjacent doctrines that further constrain

agency action.

Finally, overturning Chevron would unsettle decades of precedent, increase the workload of the federal courts, and dramatically increase partisan division in judicial decisions, thus further eroding public

confidence in the courts.

ARGUMENT

I. This Court Has Uniformly Applied the

Principles of Deference Systematized in

Chevron under the NLRA Both Before and

After that Decision

Chevron was not a novel holding but instead restated long-standing principles of deference to administrative agencies. See Chevron, 467 U.S. at 845-46.

The Court cited three labor cases as precedents for its

holding, NLRB v. Hearst Publications, Inc., 322 U.S.

111 (1944); Republic Aviation Corp. v. NLRB, 324 U.S.

793 (1945); and NLRB v. Seven-Up Bottling Co., 344

U.S. 344 (1953). Hearst Publications, decided four decades prior to Chevron, states a virtually identical

standard:

where the question is one of specific application of a

broad statutory term in a proceeding in which the

agency administering the statute must determine it

initially, the reviewing court’s function is limited.

. . . [T]he Board’s determination . . . is to be accepted

if it has . . . a reasonable basis in law.

322 U.S. at 131. This Court reiterated that standard

numerous times under the NLRA in the following decades. See, e.g., Ford Motor Co. v. NLRB, 441 U.S.

488, 497 (1979) (“Of course, the judgment of the Board

is subject to judicial review; but if its construction of

the statute is reasonably defensible, it should not be

rejected merely because the courts might prefer another view of the statute.”). Indeed, the principles

rearticulated in Chevron are so well-established under the NLRA that this Court has repeatedly applied

them post-Chevron without citing Chevron but rather

only pre-Chevron NLRA cases.2 For example, in Pattern Makers League of North America v. NLRB, 473

U.S. 95, 114 (1985):

The Board has the primary responsibility for applying “ ‘the general provisions of the Act to the complexities of industrial life.’ ” Ford Motor Co. v.

NLRB, 441 U.S. 488, 496 (1979), quoting NLRB v.

Erie Resistor Corp., 373 U.S. 221, 236 (1963), in

turn citing NLRB v. Steelworkers, 357 U.S. 357,

362–363 (1958). Where the Board’s construction of

the Act is reasonable, it should not be rejected

“merely because the courts might prefer another

view of the statute.” Ford Motor Co. v. NLRB, supra, 441 U.S., at 497.

See also, e.g., Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27, 42 (1987); Auciello Iron Works

Inc. v. NLRB, 517 U.S. 781, 787-88 (1996).

II. Chevron Deference Under the NLRA and

Other Federal Statutes is Consistent With

And, Indeed, Required by the Constitution

A. Congress May Legislate in Broad Terms

and Designate an Agency to Elaborate

Those Terms

The NLRA cases decided both before and after Chevron make clear that deference is required when (1)

Congress speaks in broad terms that require further

elaboration for the law to be administered and enforced and (2) Congress vests authority in a specific

agency to elaborate the law’s broad terms through

For this reason, Petitioners’ suggestion that the Court has

“voted with its feet” by not citing Chevron in recent decisions is

misguided. Pet. Br. 35.

rulemaking or adjudication. Chevron states that deference is required when “the statute is silent or ambiguous with respect to the specific issue.” 467 U.S. at

843. The paradigmatic instance of when deference is

required is when a statute speaks in broad terms that

do not themselves provide an answer to the specific

question at issue and Congress delegates interpretive

authority to an agency. As Justice Scalia explained,

“Congress knows to speak in plain terms when it

wishes to circumscribe, and in capacious terms when

it wishes to enlarge, agency discretion.” City of Arlington v. FCC, 569 U.S. 290, 296 (2013).

Even before Hearst, this Court made that rationale

for deference under the NLRA clear:

A statute expressive of such large public policy as

that on which the [NLRB] is based must be broadly

phrased and necessarily carries with it the task of

administrative application. There is an area plainly

covered by the language of the Act and an area no

less plainly without it. But in the nature of things

Congress could not catalogue all the devices and

stratagems for circumventing the policies of the

Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to

the empiric process of administration. The exercise

of the process was committed to the Board, subject

to limited judicial review. . . . [C]ourts must not enter the allowable area of the Board’s discretion and

must guard against the danger of sliding unconsciously from the narrow confines of law into the

more spacious domain of policy.

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).

Two decades later, this Court reiterated that point,

quoting Phelps Dodge’s admonition concerning the

“broadly phrased” nature of the NLRA and adding,

“[w]here Congress has in the statute given the Board

a question to answer, the courts will give respect to

that answer.” NLRB v. Ins. Agents’ Int’l Union, 361

U.S. 477, 499-500 (1960) (cleaned up). And, in the decade before Chevron, this Court continued repeatedly

to defer to the Board’s construction of the broad terms

of the NLRA. In 1977, for example, this Court stated,

“regardless of how we might have resolved the question as an initial matter, the appropriate weight which

must be given to the judgment of the agency whose

special duty is to apply this broad statutory language

to varying fact patterns requires enforcement of the

Board’s order.” Bayside Enters., Inc. v. NLRB, 429

U.S. 298, 304 (1977).

The NLRB’s statutory authority to conduct elections to determine if employees wish to be represented

for the purpose of collective bargaining with their employer is a clear example of the type of broad congressional directive, the implementation of which unavoidably and necessarily involves the exercise of discretion

in the further elaboration of the statutory terms. The

NLRA provides only that, under appropriate circumstances, the NLRB “shall direct an election by secret

ballot and shall certify the results thereof.” 29 U.S.C.

§ 159(c)(1). Congress said nothing further about how

the Board should conduct such elections. Rather,

Congress delegated authority to the Board to interpret those broad terms by rulemaking or adjudication.

See 29 U.S.C. § 156; NLRB v. Wyman-Gordon Co., 394

U.S. 759, 765-66 (1969). And the Board has elaborated what it means to conduct “an election by secret ballot” through both means. See, e.g., 29 C.F.R. § 102.60

et seq. (2019) (general rules governing elections); Excelsior Underwear Inc., 156 NLRB 1236 (1966) (hold-

ing employer must provide union a list of eligible voters prior to an election).

Based on the broad language of the Act and the specific charge given the Board, this Court has long recognized that “Congress has entrusted the Board with

a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and

free choice of bargaining representatives by employees.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330

(1946). This Court summarized this jurisprudence in

upholding the Board’s requirement that an employer

provide a list of employees eligible to vote in an election to the union:

We have held in a number of cases that Congress

granted the Board a wide discretion to ensure the

fair and free choice of bargaining representatives. . . . The disclosure requirement furthers this

objective by encouraging an informed employee

electorate and by allowing unions the right of access to employees that management already possesses. It is for the Board, and not for this Court, to

weigh against this interest the asserted interest of

employees in avoiding the problems that union solicitation may present.

Wyman-Gordon, 394 U.S. at 767.

This Court has held that judges may not interfere

with the Board’s exercise of the discretion granted by

Congress, which legislated in broad terms respecting

the conduct of elections (and other subjects) and vested in the Board authority to elaborate those terms.

“The control of the election proceedings, and the determination of the steps necessary to conduct that

election fairly were matters which Congress entrusted

to the Board alone. Interference in those matters con-

stituted error on the part of the court below.” NLRB

v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940)

(footnotes omitted).

Imagining that courts had to review the decisions of

the NLRB in this area without Chevron-like deference

makes clear why that would be untenable. As explained above, the Board has held (and now codified in

a regulation) that an employer must provide a union a

list of eligible voters and specified when the list must

be provided and its contents. See Excelsior, 156 NLRB

at 1239-40; 29 C.F.R. § 102.62(d) (2019). Using all the

traditional tools of statutory construction, a court simply cannot determine if that agency elaboration of the

broad statutory terms, “direct an election by secret

ballot,” is correct or incorrect. Judges could only make

such a determination based on their own view of wise

labor-relations policy. That is precisely why Congress

vested the authority to elaborate the broad statutory

terms in the NLRB and why this Court has properly

deferred to the agency’s construction.3

Although it was a constitutional and not a statutory case, the

logic of Nixon v. United States, 506 U.S. 224 (1993), applies equally here. In that case, Judge Nixon argued that the procedures accorded him by the Senate did not comply with the Constitution’s

vesting of authority in the Senate to “try all Impeachments.” u.s.

consT. art. I, § 3, cl. 6. This Court rejected Nixon’s argument,

reasoning, “courts possess power to review . . . executive action

that transgresses identifiable textual limits,” but when a broad

statutory term “does not provide an identifiable textual limit on

the authority which is committed to” another branch, courts must

not intervene. 506 U.S. at 238. The term “try,” this Court concluded, “lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s actions.” Id. at 230. The

Board’s broad charge to “direct an election by secret ballot” is parallel to the Senate’s to “try all Impeachments.” In both instances

courts may not second guess reasonable constructions by the coordinate branch charged with implementing the broad textual term.

Thus, in the context of the NLRA, it has been established since 1935 that (1) Congress necessarily legislated in broad terms in order to address the pressing

labor relations issues it faced in the middle of the

Great Depression, (2) Congress delegated the authority to construe, elaborate, and apply those broad terms

and conduct the balancing of interests inherent therein to the NLRB, and (3) the NLRB’s construction of

the broad terms of the NLRA is subject to only limited

judicial review.

B. “What the Law Is” Includes Congress’

Instruction that an Agency Has

Discretion to Define and Elaborate the

Broad Terms in a Statute

Petitioners’ central argument is based on language

from Marbury v. Madison, 5 U.S. 137, 177 (1803):

“ ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Pet. Br. 24.

But “the law,” in all cases in which Chevron applies,

includes Congress’ instruction that an agency has discretion to define and elaborate the broad terms in a

statute. As Chief Justice Roberts explained in City of

Arlington:

We do not ignore that command [from Marbury]

when we afford an agency’s statutory interpretation Chevron deference; we respect it. We give binding deference to permissible agency interpretations

of statutory ambiguities because Congress has delegated to the agency the authority to interpret those

ambiguities “with the force of law.”

569 U.S. at 317 (Roberts, C.J., dissenting) (quoting

United States v. Mead Corp., 533 U.S. 218, 229 (2001)).

And the majority in Kisor v. Wilkie, 139 S. Ct. 2400,

2413 (2019), reiterated, “Congress, when first enact-

ing a statute, assigns rulemaking power to an agency

and thus authorizes it to fill out the statutory scheme.”

Indeed, in Marbury itself, the Court made clear,

“[q]uestions . . . which are, by the . . . laws, submitted

to the executive, can never be made in this court.” 5

U.S. at 170. This Court cannot expand the province of

the judiciary in the name of fidelity to the Constitution by simply reading this form of congressional instruction out of “the law.”4

The NLRA clearly vests this form of interpretive authority in the NLRB. The law gives the NLRB both

adjudicatory and rulemaking authority. See 29 U.S.C.

§§ 156, 160. And the Senate Report on what became

the NLRA clearly states:

Section 10(a) gives the [NLRB] exclusive jurisdiction to prevent and redress unfair labor practices.

. . . Thus it is intended to dispel the confusion resulting from dispersion of authority and to establish a single paramount administrative or quasijudicial authority in connection with the

development of the Federal American law regarding collective bargaining.

S. Rep. No. 74-573, at 15 (1935). Congress gave the

NLRB authority not simply to apply the law, but to

“develop” the law. As this Court has long recognized,

Congress “charge[d the Board] to develop national labor policy . . . through interstitial rulemaking that is

For the same reason, Chevron is not inconsistent with the

instruction in the Administrative Procedure Act that, “[t]o the

extent necessary to decision and when presented, the reviewing

court shall decide all relevant questions of law,” 5 U.S.C. § 706,

when the “law” instructs the reviewing court to defer to the agency’s answer to the question of law. Moreover, the APA does not

apply “to the extent that . . . agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).

‘rational and consistent with the Act.’” Auciello Iron

Works, 517 U.S. at 788 (1996) (quoting NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 (1990)).

Chevron deference is thus parallel to two other forms

of deference common in labor law—deference to arbitrators and trust plan administrators. Like Chevron

deference, both of those forms of deference are rooted

in an instruction in the legal document requiring construction. Thus, while courts ordinarily have authority to construe the provisions of contracts no less than

statutes, if the parties agree to “settle by arbitration a

controversy” arising out of the contract, the Federal

Arbitration Act requires courts to enforce the arbitrator’s judgment except in narrow circumstances. 9

U.S.C. §§ 2, 9, 10. And this Court has instructed that:

[t]he function of the court is very limited when the

parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined

to ascertaining whether the party seeking arbitration is making a claim which on its face is governed

by the contract. Whether the moving party is right

or wrong is a question of contract interpretation for

the arbitrator. In these circumstances the moving

party should not be deprived of the arbitrator’s

judgment, when it was his judgment and all that it

connotes that was bargained for.

United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S.

564, 567–68 (1960).5

Notably, this Court has upheld deference to arbitrators

against challenge under Article III even when Congress mandates arbitration of disputes, the disputes require application

of a statutory standard, and the statute limits judicial review.

In Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568

(1985), the Court rejected an Article III challenge to a provision

of the Federal Insecticide, Fungicide and Rodenticide Act, 7

Likewise, while courts ordinarily have authority to

construe the terms of trust instruments, this Court

has held, under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA), that, “[i]f

the trust documents give the trustee ‘power to construe disputed or doubtful terms, . . . the trustee’s interpretation will not be disturbed if reasonable.’ ”

Conkright v. Frommert, 559 U.S. 506, 512 (2010)

(quoting Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 111 (1989)). Notably, this Court has held

that the deferential standard of review should not be

abandoned even if the trustee has a material interest

in the construction of the instrument. Metro. Life Ins.

Co. v. Glenn, 554 U.S. 105, 115 (2008).6

As in a contract with an arbitration clause and a

trust document authorizing the trustee to construe its

terms, part of “the law,” as that phrase is used in Marbury, is Congress’ instruction that a specific agency

further elaborate the law’s broad terms. As Justice

Scalia explained:

Chevron thus provides a stable background rule

against which Congress can legislate: Statutory

ambiguities will be resolved, within the bounds of

U.S.C. § 136 et seq. that requires parties to submit certain disputes over compensation (for pesticide registrants’ use of proprietary data generated by earlier registrants) to arbitration.

Id. at 585. The Act limits judicial review of the arbitrator’s

decisions to correcting “fraud, misrepresentation, or other misconduct.” Id. at 574. Nevertheless, the Court rejected the argument that the limits on judicial review were inconsistent with

Article III, reasoning, “we do not think this system threatens

the independent role of the Judiciary in our constitutional

scheme.” Id. at 591.

Rather, a court must “take account of the conflict when determining whether the trustee, substantively or procedurally,

has abused his discretion.” Id.

reasonable interpretation, not by the courts but by

the administering agency. . . . Congress knows to

speak in plain terms when it wishes to circumscribe,

and in capacious terms when it wishes to enlarge,

agency discretion.

City of Arlington, 569 U.S. at 296.

In the NLRA, Congress both spoke in “capacious

terms” and, by expressly authorizing the NLRB to

construe and apply those terms, “enlarge[]d [the]

agency[’s] discretion.” As this Court has repeatedly

explained, “Congress met the[] difficulties” of drafting

a law that could not address every future eventuality

“by leaving the adaptation of means to end to the empiric process of administration.” Phelps Dodge, 313

U.S. at 194. “The exercise of the process was committed [by Congress] to the Board, subject to limited judicial review.” Id. In NLRB v. Erie Resistor Corp., this

Court recognized that the Board “was attempting to

deal with an issue which Congress had placed in its

hands.” 373 U.S. 221, 236 (1963). And in Beth Israel

Hosp. v. NLRB, 437 U.S. 483, 500-01 (1978), this

Court stated emphatically:

It is the Board on which Congress conferred the authority to develop and apply fundamental national

labor policy. Because it is to the Board that Congress entrusted the task of ‘applying the Act’s general prohibitory language in the light of the infinite

combinations of events which might be charged as

violative of its terms,’ . . . that body, if it is to accomplish the task which Congress set for it, necessarily

must have authority to formulate rules to fill the

interstices of the broad statutory provisions.

This long-standing reasoning was summed up in

ABF Freight Sys., Inc. v. NLRB:

When Congress expressly delegates to an administrative agency the authority to make specific policy

determinations, courts must give the agency’s decision controlling weight unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’ Because this case involves that kind of express

delegation, the Board’s views merit the greatest

deference. This has been our consistent appraisal of

the Board’s remedial authority throughout its long

history of administering the Act.

510 U.S. 317, 324 (1994) (quoting Chevron, 467 U.S.

at 844).

Chevron thus honors Marbury’s command.

C. The Constitution Gives Congress the

Authority to Enact Legislation that Can

Be Effective in a Complex, Dynamic,

Modern Society

The Founders did not intend the Constitution to be

a straight-jacket that would strangle the newly constituted federal government as the nation grew and

developed. While Petitioners quote the foundational

Chief Justice Marshall opinion in Marbury, equally

foundational is Marshall’s holding in McCulloch v.

Maryland:

[T]he sound construction of the constitution must

allow to the national legislature that discretion,

with respect to the means by which the powers it

confers are to be carried into execution, which will

enable that body to perform the high duties assigned to it, in the manner most beneficial to the

people.

17 U.S. 316, 421 (1819).

As this Court recently recognized in Gundy v. United States, “the Constitution does ‘not ‘deny[ ] to the

Congress the necessary resources of flexibility and

practicality [that enable it] to perform its function[s].’ ”

139 S. Ct. 2116, 2123 (2019) (quoting Yakus v. United

States, 321 U.S. 414, 425 (1944)). And, as specifically

relevant here, this Court stated, “ ‘[I]n our increasingly complex society, replete with ever changing and

more technical problems,’ . . . ‘Congress simply cannot

do its job absent an ability to delegate power.’ ” Id.

(quoting Mistretta v. United States., 488 U.S. 361, 372

(1989)). Congress may “ ‘obtain[ ] the assistance of its

coordinate Branches’—and in particular, may confer

substantial discretion on executive agencies to implement and enforce the laws.” Id. (quoting Mistretta,

488 U.S. at 372). “ ‘In determining what [Congress]

may do in seeking assistance from another branch,

the extent and character of that assistance must be

fixed according to common sense and the inherent necessities of the government co-ordination.’ ” Mistretta,

488 U.S. at 372 (quoting J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 406 (1928)).

Congress faced a daunting task in 1935—preventing industrial strife that was rocking the nation and

protecting the rights of both employees and employers. Moreover, Congress sought to adopt a law that

would continue to serve those purposes in a dynamic,

market economy where change in products and work

practices is constant. Thus, “[t]he Wagner Act did not

undertake the impossible task of specifying in precise

and unmistakable language each incident which

would constitute an unfair labor practice.” Republic

Aviation, 324 U.S. at 798. Rather, Congress in “that

Act left to the Board the work of applying the Act’s

general prohibitory language in the light of the infinite combinations of events which might be charged

as violative of its terms.” Id. Thus, Congress provided

for “administrative flexibility within appropriate statutory limitations . . . to accomplish the dominant purpose of the legislation.” Id.

When it enacts statutes, Congress cannot conceive

of all possible applications of the law and cannot write

the law with complete clarity. “Congress need not,

and likely cannot, anticipate all circumstances in

which a general policy must be given specific effect.”

United States v. Haggar Apparel Co., 526 U.S. 380,

392 (1999). Moreover, Congress cannot predict all future developments that may be relevant to application

of the law and the achievement of its ends. An agency,

with congressional authorization, can adapt its construction of the law to changing circumstances, but

courts cannot. An agency can discard a reasonable

construction that has proven ineffective in or counterproductive to furthering a statute’s aims on policy

grounds, but courts cannot.

For that reason, Justice Scalia predicted that even

a narrowing of the application of Chevron’s principles

would

lead to the ossification of large portions of our statutory law. [In contrast, w]here Chevron applies, statutory ambiguities remain ambiguities subject to

the agency’s ongoing clarification. They create a

space, so to speak, for the exercise of continuing

agency discretion.

Mead Corp., 533 U.S. at 247 (Scalia, J., dissenting).

In the dynamic context of labor relations, this Court

has long recognized that “[t]he responsibility to adapt

the Act to changing patterns of industrial life is entrusted [by Congress] to the Board.” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975). Chevron per-

mits that necessary adaptation. Overturning Chevron

would prevent it and thereby gradually render the

NLRA and many other statutes obsolete, contrary to

Congress’ intent.

Petitioners suggest Congress is neglecting its duty

and attempting to shift responsibility to make hard

decisions to the executive branch. Pet. Br. 36-37. But

this Court has long recognized Congress can only perform its duty via some degree of delegation of interpretive authority to agencies.

D. Performing the Legislatively Assigned

Task of Further Specifying the Broad

Terms of a Law is Appropriate for

Agencies, But Not Courts

Congress cannot anticipate all the circumstances

under which a statute may apply nor can it legislate

with complete clarity. In short, “what the law is” is

not always determinable even using all the traditional

tools of statutory construction. Construction of statutes in some instances unavoidably involves the exercise of discretion. The exercise of that discretion is

appropriately located in the executive, not the judicial

branch. That is exactly what Chevron held and it has

long been recognized under the NLRA.

In Chevron, the Court reasoned:

Judges are not . . . part of either political branch of

the Government. . . . In contrast, an agency to

which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.

While agencies are not directly accountable to the

people, the Chief Executive is, and it is entirely ap-

propriate for this political branch of the Government to make such policy choices—resolving the

competing interests which Congress itself either

inadvertently did not resolve, or intentionally left

to be resolved by the agency charged with the administration of the statute in light of everyday realities.

467 U.S. at 865-66.

A quarter century earlier, this Court similarly observed under the NLRA:

The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy

is often a difficult and delicate responsibility, which

the Congress committed primarily to the [NLRB],

subject to limited judicial review.

NLRB v. Truck Drivers Loc. Union No. 449, 353 U.S.

87, 96 (1957). Three years later, even while reversing

the Board, this Court again stated:

We recognize without hesitation the primary function and responsibility of the Board to resolve the

conflicting interests that Congress has recognized

in its labor legislation. Clearly, where the ‘ultimate

problem is the balancing of the conflicting legitimate interests’ it must be remembered that ‘The

function of striking that balance to effectuate national labor policy is often a difficult and delicate

responsibility, which the Congress committed primarily to the [NLRB], subject to limited judicial review.’

Ins. Agents, 361 U.S. at 499 (quoting Truck Drivers,

353 U.S. at 96).

Exercising the discretion delegated by Congress to

further elaborate the broad terms in statutes unavoidably involves some degree of “policy-making,” “balancing,” and “resol[ution of] . . . conflicting interests.” The

exercise of that form of discretion is appropriate for

executive branch agencies, but not for courts.

The example of employees’ long-standing, limited

right to engage in union organizing on their employer’s premises is illustrative. The NLRA says nothing

specifically about such a right. Rather, Congress stated in broad terms that it is an unfair labor practice for

employers to “interfere with . . . employees in the exercise of the rights guaranteed in section [7 of the

Act]”, including “the right . . . to form . . . labor organizations.” 29 U.S.C. §§ 158(a)(1), 157. Deferring to the

NLRB, this Court held in Republic Aviation that, absent “unusual circumstances,” employers interfere

with employees’ rights if they prevent employees from

soliciting support for a union during nonwork time in

nonwork areas of their workplace even if the prohibition is pursuant to a nondiscriminatory no-solicitation

policy. 324 U.S. at 804. This Court recognized that

the cases before it “bring here for review the action of

the [NLRB] in working out an adjustment between

the undisputed right of self-organization assured to

employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in

their establishments.” Id. at 797-98. In other words,

elaboration of the broad term “interfere” in order to

answer the question of whether employees have a

right to solicit support for a union on their employer’s

premises and, if so, at what times and in what places,

requires the “balancing of the conflicting legitimate

interests,” a balancing of interests appropriately conducted by an executive branch agency, but not a court.

Beth Israel Hosp., 437 U.S. at 501 (quoting Truck

Drivers, 353 U.S. at 96) (deferring to Board’s modification of the Republic Aviation rule as applied in hospitals). “[I]t is the Board upon whom the duty falls in

the first instance to determine the relative strength of

the conflicting interests and to balance their weight.”

Id. at 504.

Congress vested this constrained policy-making role

in the NLRB and it would be inconsistent with the

judicial function to usurp that role.

III. Congress Vests the Task of Further

Specifying the Broad Terms of Laws in

Agencies for Sound Reasons

A. Elaboration by a Single Agency and the

Required, Accompanying Deference

Promotes the Uniform Application of

Federal Law

Congress created a single National Labor Relations

Board for a reason—to elaborate the broad terms of

the NLRA in a uniform manner throughout the nation. The Senate Report on what became the law

makes that clear:

[T]his bill is . . . intended to dispel the confusion

resulting from dispersion of authority and to establish a single paramount administrative or quasijudicial authority in connection with the development of the Federal American law regarding

collective bargaining.

S. Rep. No. 74-573, at 15. Congress did not create regional labor boards or a board for each judicial circuit.

But overruling Chevron would lead to a similar result,

contrary to Congress’ intent.

This Court has repeatedly recognized Congress’ intent to preserve a uniform construction of the NLRA

in the context of applying principles of federal labor

law preemption. In Garner v. Teamsters, Chauffeurs

& Helpers Loc. Union No. 776, 346 U.S. 485, 490

(1953), this Court explained:

Congress did not merely lay down a substantive

rule of law to be enforced by any tribunal competent

to apply law generally to the parties. It went on to

confide primary interpretation and application of

its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and

decision, including judicial relief pending a final administrative order. Congress evidently considered

that centralized administration of specially designed procedures was necessary to obtain uniform

application of its substantive rules . . . .

In other words, Congress vested “primary” interpretive authority in a single agency, the NLRB, rather

than in “tribunal[s] competent to apply law generally,” in order to “obtain uniform application of its substantive rules.” Id.

In Amalgamated Ass’n of St., Elec. Ry. & Motor

Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 288

(1971), this Court again identified that congressional

intent:

[W]hen it set down a federal labor policy Congress

plainly meant to do more than simply to alter the

then-prevailing substantive law. It sought as well

to restructure fundamentally the processes for effectuating that policy, deliberately placing the responsibility for applying and developing this comprehensive legal system in the hands of an expert

administrative body rather than the [courts].

Overturning Chevron would undermine that clear

legislative intent to authorize the NLRB to “develop”

a “comprehensive” system of labor law applying uniformly across the country.

This Court’s concern about abandoning the comparable deference accorded trustees applies even more

strongly here. This Court recognized in Conkright

that such “deference serves the interest of uniformity,

helping to avoid a patchwork of different interpretations of a plan . . . that covers employees in different

jurisdictions.” 559 U.S. at 517. The “uniformity problems” that would arise from abandoning that form of

deference are similar to what would arise here: employers would “be placed in an impossible situation”

and “employees could be entitled to different benefits

[or rights] depending on where they live.” Id. at 520.

The possibility of final review of agency action in

this Court cannot possibly preserve uniformity because of the limits of this Court’s docket compared to

the number of Chevron cases heard by the lower federal courts. As Professor Peter Strauss observes:

The Supreme Court’s practical inability in most cases

to give its own precise renditions of statutory meaning virtually assures that circuit readings will be diverse. By removing the responsibility for precision

from the courts of appeals, the Chevron rule subdues

this diversity, and thus enhances the probability of

uniform national administration of the laws.

Peter L. Strauss, One Hundred Fifty Cases Per Year:

Some Implications of the Supreme Court’s Limited Resources for Judicial Review of Agency Action, 87

colum. L. rev. 1093, 1121 (1987). Only deference to

agency construction can create the uniformity Congress intended.

Abandoning Chevron would balkanize federal labor

policy and many other federal policies mandated by

Congress to apply uniformly across the nation.

B. Administrative Agencies Have Expertise

that the Courts Lack

Congress also vests discretion to elaborate broad

statutory terms in agencies like the NLRB because

agency personnel have expertise in the areas regulated by the statutes they administer that generalist

judges lack. Chevron explained:

[T]he principle of deference to administrative interpretations . . . . “has been consistently followed by

this Court whenever . . . a full understanding of the

force of the statutory policy in the given situation

has depended upon more than ordinary knowledge

respecting the matters subjected to agency regulations.”

Chevron, 467 U.S. at 844 (quoting United States v.

Shimer, 367 U.S. 374, 382 (1961)).

Under the NLRA, this Court has long recognized,

“[t]he Act . . . entrusts to an expert agency the maintenance and promotion of industrial peace.” Phelps

Dodge, 313 U.S. at 194. Congress sought to “[a]ttain[]

. . . a great national policy through expert administration in collaboration with limited judicial review . . . .”

Id. at 188. Indeed, “[o]ne of the purposes” Congress

had in “the creation of such boards is to have decisions

. . . under the particular statute made by experienced

officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration.” Republic Aviation, 324 U.S. at 800.

“[T]he board was created for the purpose of using its

judgment and its knowledge.” Seven-Up Bottling, 344

U.S. at 348 (quoting Chi., Burlington & Quincy Ry.

Co. v. Babcock, 204 U.S. 585, 598 (1907)).

Sometimes agency expertise is scientific, as in the

case of OSHA, and sometimes it is based on long, accumulated experience, as in the case of the NLRB. As

this Court recognized in Seven-Up Bottling:

‘Cumulative experience’ begets understanding and

insight by which judgments not objectively demonstrable are validated or qualified or invalidated.

The constant process of trial and error, on a wider

and fuller scale than a single adversary litigation

permits, differentiates perhaps more than anything

else the administrative from the judicial process.

344 U.S. at 349. “Everyday experience in the administration of the statute gives [the Board] familiarity with

the circumstances and backgrounds of employment relationships in various industries, with the abilities and

needs of the workers for self organization and collective action, and with the adaptability of collective bargaining for the peaceful settlement of their disputes

with their employers.” Hearst Publ’ns, 322 U.S. at

130. This Court has repeatedly recognized “the Board’s

special understanding of . . . industrial situations” and

of the “actualities of industrial relations” and its “special competence in dealing with labor problems.”

Steelworkers, 357 U.S. at 363; Am. Ship Bldg. Co. v.

NLRB, 380 U.S. 300, 316 (1965).

Through long and varied experience in labor relations, NLRB members and staff gain a deep understanding of the real-world consequences of varying

constructions of the broad terms of the Act and are

thus better able to effect congressional intent than

judges who have only sporadic opportunities to apply

federal labor law. The Board’s “special competence in

this field is the justification for the deference accorded

its determination.” Weingarten, 420 U.S. at 266.7

IV.

Chevron Deference Does Not Create a

Judicial Rubber Stamp

Critics of Chevron argue it represents an abnegation of judicial oversight. But that is not the case. In

the labor context, as in others, this Court and the lower federal courts have often overturned agency action

post-Chevron. See, e.g., NLRB v. Ky. River Cmty.

Care, Inc., 532 U.S. 706, 714-21 (2001); NLRB v.

Health Care & Ret. Corp. of Am., 511 U.S. 571, 578-80

(1994); Commc’ns Workers of Am. v. Beck, 487 U.S.

735, 745-54 (1988).

In addition to the constraints on agency discretion

imposed by Chevron itself, this Court’s decisions constrain agency discretion in several other manners.

The courts will not defer if the agency action addresses a “major question.” West Virginia v. EPA, 142 S.

Ct. 2587, 2607-09 (2022). The courts will not defer if

the agency’s action trenches on a statute it does not

administer. See, e.g., Epic Systems Corp. v. Lewis, 138

S. Ct. 1612, 1629 (2018); Hoffman Plastic Compounds,

Inc. v. NLRB, 535 U.S. 137, 144 (2002); Southern S.S.

Co. v. NLRB, 316 U.S. 31, 46 (1942). The courts will

not defer if the agency’s construction raises serious

Professor Strauss observes, “one can compare the sporadic and

case-specific character of judicial encounters with issues of statutory meaning, with an agency’s continuing responsibilities and

policy-implementing perspectives. Just as the generalist courts

have particular strengths in dealing with issues, such as constitutional questions, that involve integration between an agency’s specialty and the general legal structure, agencies are especially wellplaced to appreciate the interrelationships of issues and the impacts

of alternative approaches within the framework of statutes specifically under their charge.” Strauss, supra, at 1126.

constitutional questions that may be avoided with a

different construction. See, e.g., Edward J. DeBartolo

Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 577-78 (1988). The courts will not

defer if the agency does not articulate a rationale for

its action and the courts will only uphold agency action based on the rationale articulated by the agency

itself. See, e.g., NLRB v. Bell Aerospace Co., 416 U.S.

267, 289–290 (1974); SEC v. Chenery Corp., 318 U.S.

80, 87–88 (1943). The courts will not defer if the agency announces one rule but applies another. See, e.g.,

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.

359, 374 (1998).

Chevron thus does not prevent meaningful judicial

review.

V. Overturning Chevron Would Unsettle

Decades of Precedent Under the NLRA and

Numerous Other Statutes, Increase the

Workload of Federal Judges, and Erode

Public Confidence in the Courts

Under the NLRA and countless other federal statutes, the courts have upheld agency action under step

two of the Chevron standard in hundreds if not thousands of cases. Overturning Chevron would not only

subject future agency actions to heightened scrutiny,

it would open up each of those prior agency constructions to new judicial scrutiny under whatever standard this Court adopts.

This Court made that clear in Kisor, when considering whether to narrow another form of deference—deference to agency construction of its own regulations

(so-called Auer or Seminole Rock deference): “[A] decision [to overrule Auer v. Robbins, 519 U.S. 452 (1997)]

would allow relitigation of any decision based on Auer,

forcing courts to ‘wrestle [with] whether or not Auer’

had actually made a difference.” 139 S. Ct. at 2422.

The Court cited the Solicitor General’s statement that

“every single regulation that’s currently on the books

whose interpretation has been established under

[Bowles v.] Seminole Rock [& Sand Co., 325 U.S. 410

(1945)] now [would have] to be relitigated anew.” Id.

The Court’s observation in Kisor is equally true here:

“It is the rare overruling that introduces so much instability into so many areas of law, all in one blow.” Id.

In other words, overturning Chevron would unsettle decades of reliance in countless areas governed by

federal statutes.8 And Petitioners are wrong when

they state that “any case decided under step two cannot generate justifiable reliance given the executive’s

ability [to] revisit matters under [Nat’l Cable & Telecomms. Ass’n v.] Brand X [Internet Servs., 545 U.S.

967 (2005)].” Pet. Br. 41. That is because the vast

majority of agency actions upheld under Chevron and

its predecessors are never revisited by agencies.

While the NLRB has reversed some prior constructions of the broad terms of the NLRA after changes in

the composition of the Board based on “the incumbent

administration’s views of wise policy,” Chevron, 467

U.S. at 865, core decisions of the NLRB that have

been affirmed under Chevron and earlier versions of

the same deference principles have stood for decades.

See, e.g., Republic Aviation, 324 U.S. 793 (rules for

where on employer’s premises employees can solicit

union membership and distribute union literature

Moreover, overturning Chevron would present parties with

an additional compliance problem as the uniform construction of

federal laws promoted by the decision would be fractured and

parties would be required to comply with different versions of the

law in different districts and circuits as explained supra.

have existed since 1945); Seven-Up Bottling, 344 U.S.

344 (rule establishing how backpay is calculated has

existed since 1953); Wyman-Gordon, 394 U.S. 759

(rule providing that employer must provide a list of

eligible voters to union prior to an election has existed since 1969); Weingarten, 420 U.S. 251 (rule that

employer must allow employee to have union representative present at pre-disciplinary interview has

existed since 1975).

Moreover, more is at stake here than private parties’ reliance interests. The result of overturning

Chevron would be frustration of the legislative will,

an invasion of the authority of the executive, and lawmaking by the judiciary with a corresponding increase

in the workload of federal judges and fall in public

confidence in the courts.

In City of Arlington, Justice Scalia forecast what

the effect of overturning Chevron would be:

The effect would be to transfer any number of interpretive decisions—archetypal Chevron questions,

about how best to construe an ambiguous term in

light of competing policy interests—from the agencies that administer the statutes to federal

courts. We have cautioned that “judges ought to refrain from substituting their own interstitial lawmaking” for that of an agency. That is precisely

what Chevron prevents.

569 U.S. at 304-05 (quoting Ford Motor Credit Co. v.

Milhollin, 444 U.S. 555, 568 (1980)). While dissenting

in City of Arlington, Chief Justice Roberts agreed:

“Chevron importantly guards against the Judiciary

arrogating to itself policymaking properly left, under

the separation of powers, to the Executive.” Id. at 327

(Roberts, C.J., dissenting).

Similarly, under the NLRA, this Court explained:

the dissenting Justices [like Petitioners here] would

have us substitute our judgment for those of the

Board with respect to the issues that Congress intended the Board should resolve. This we are unwilling to do. If the courts are to monitor so closely

the agency’s assessment of the kind of factors involved in this case, the role of the judiciary in administering regulatory statutes will be enormously

expanded and its work will become more complex

and time consuming. We doubt that this is what

Congress intended in subjecting the Board to judicial review.

Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454

U.S. 404, 418 (1982).

By definition, if Chevron is overturned, the cases

that will be opened anew for more exacting judicial

scrutiny will involve questions concerning which

courts have already determined that Congress did not

speak clearly. If this Court extends judicial authority

to encompass answering those questions de novo, it is

inevitable that judges will answer them “on the basis

of the judges’ personal policy preferences” given the

absence of clear congressional guidance. Chevron, 467

U.S. at 865. In fact, the largest empirical study to

date demonstrates exactly that. In a study of more

than 1,600 cases over eleven years, Professors Barnett, Boyd and Walker found that following Chevron “has a powerful constraining effect on partisanship in judicial decisionmaking.” Kent Barnett,

Christina L. Boyd & Christopher J. Walker, Administrative Law’s Political Dynamics, 71 Vand. L. rev.

1463, 1524 (2018). Their analysis provides “compelling evidence that the Chevron Court’s objective to reduce partisanship in judicial decisionmaking has been

quite effective.” Id. Overturning or narrowing Chevron, the scholars warn “could result in partisanship

playing a larger role in judicial review of agency statutory interpretations.” Id. at 1470.

Overturning Chevron will thus further the growing

public perception that the Court is not a neutral, apolitical body.

This case thus cries out for realism on the part of

the Court. Realism concerning effective law-making

in a complex and dynamic society and realism concerning the limits of courts’ interpretive powers. Petitioners state it is the duty of the judicial branch to say

what the law is “even when the authorities at issue

are murky or silent,” Pet. Br. 24, but we all know that

is not possible. It is a “reality that for some purposes

statutes will be indeterminate.” Strauss, supra, at

1124. Pretending otherwise will damage the Court

and thereby its ability to fulfill its crucial function to

“say what the law is” when Congress has not vested

authority in executive branch agencies to further

elaborate the broad terms of a law and when such

agencies act in clear violation of the law.

CONCLUSION

For the above-stated reasons, this Court should reaffirm Chevron and affirm the decision below.

Respectfully submitted,

/s/ Harold C. Becker

harold c. Becker

(Counsel of Record)

MaTThew gInsburg

Andrew Lyubarsky

815 Black Lives Matter Plaza, N.W.

Washington, D.C. 20006

(202) 637-5310

cbecker@aflcio.org

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.