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

No. 22-451

In the

Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, et al.,

Petitioners,

v.

GINA RAIMONDO, SECRETARY

OF COMMERCE, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of A ppeals for the District of Columbia Circuit

BRIEF OF AMICI CURIAE

ADMINISTRATIVE AND FEDERAL

REGULATORY LAW PROFESSORS IN

SUPPORT OF RESPONDENTS

Daniel M. Sullivan

Counsel of Record

Brian T. Goldman

Jessica Marder-Spiro

Holwell Shuster & Goldberg LLP

425 Lexington Avenue

New York, New York 10017

(646) 837-5151

dsullivan@hsgllp.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

INTEREST OF THE AMICI CURIAE ...................... 1

SUMMARY OF THE ARGUMENT ............................ 3

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

I.

Chevron Enforces Delegations Grounded

in Statutory Structure and Context

Rather Than Resolving Mere Statutory

Ambiguities. ................................................... 6

A. Chevron centers on delegations of

discretion within statutory limits. ........... 6

B. In practice, this Court’s Chevron

jurisprudence enforces structural

delegations rather than resolving

ordinary ambiguities. ............................. 10

II.

So understood, Chevron need not be and

should not be overruled. .............................. 24

A. Chevron does not pose the sort of

concerns that Petitioner raises. ............. 24

B. Chevron Should Not Be Abandoned

Because It Plays An Important Role In

How Courts Apply Indeterminate

Statutes ................................................... 26

CONCLUSION .......................................................... 28

ii

TABLE OF AUTHORITIES

CASES

Adams Fruit Co., Inc. v. Barrett,

494 U.S. 638 (1990) .......................................... 16, 17

Barnhart v. Sigmon Coal Co.,

534 U.S. 438 (2002) ................................................ 11

Batterton v. Francis,

432 U.S. 416 (1977) .............................................. 4, 9

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ............................................ 22

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) ................................................ 18

Califano v. Sanders,

430 U.S. 99 (1977) .................................................. 28

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

Council, Inc.,

467 U.S. 837 (1984) ........................................ passim

Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ................................................ 28

City of Arlington v. FCC,

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

iii

Dole v. United Steelworkers,

494 U.S. 26 (1990) .................................................. 14

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

& Const. Trades Council,

485 U.S. 568 (1988) ................................................ 15

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ................................................ 15

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ............................ 4, 13, 15, 17

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................ 22

Gundy v. United States,

139 S. Ct. 2116 (2019) .............................................. 8

I.N.S. v. St. Cyr,

533 U.S. 289 (2001) ................................................ 15

MCI Telecomms. Corp. v. AT & T Co.,

512 U.S. 218 (1994) .................................... 14, 19, 20

Michigan v. EPA,

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

Mistretta v. United States,

488 U.S. 361 (1989) .................................................. 8

Morrison v. Nat. Australia Bank, Ltd.,

561 U.S. 247 (2010) ................................................ 15

iv

Morton v. Ruiz,

415 U.S. 199 (1974) ................................................ 10

National Cable & Telecomms. Ass’n, Inc. v. Gulf

Power Co.,

534 U.S. 327 (2002) ............................................ 9, 27

NLRB v. Babcock & Wilcox Co.,

351 U.S. 105 (1956) .................................................. 8

NLRB v. Hearst Publ’ns,

322 U.S. 111 (1944) ................................................ 14

Ocasio v. United States,

578 U.S. 282 (2016) ................................................ 26

Republic Aviation Corp. v. NLRB,

324 U.S. 793 (1945) .................................................. 8

Seila Law LLC v. Consumer Fin. Protection Bureau,

140 S. Ct. 2183 (2020) .............................................. 9

United States v. Mead Corp.,

533 U.S. 218 (2001) .......................................... 16, 17

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ........................................ passim

Wayman v. Southard,

23 U.S. 1 (1825) .................................................... 5, 7

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ............................................ 22

v

Wooden v. United States,

142 S. Ct. 1063 (2022) ............................................ 26

Yakus v. United States,

321 U.S. 414 (1944) .............................................. 4, 8

STATUTES

47 U.S.C. §203 ........................................................... 20

5 U.S.C. §§ 553 .......................................................... 23

Act of Aug. 5, 1789 ch. 35, § 1 Stat. 49 ....................... 7

Act of Mar. 26, 1804, ch. 35, § 1 Stat. 277 .................. 7

OTHER AUTHORITIES

Brian Chen & Samuel Estreicher, The New

Nondelegation Regime,

102 Tex. L. Rev. (forthcoming) .............................. 23

Brett Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016) ......................... 11, 16

David Epstein & Sharyn O’Halloran, Delegating

Powers: A Transaction Cost Politics Approach To

Policy Making Under Separate Powers (1999) ..... 25

Jerry L. Mashaw, Recovering American

Administrative Law: Federalist Foundations,

1787–1801, 115 Yale L.J. 1256 (2006)..................... 7

vi

Thomas W. Merrill, The Chevron Doctrine: It’s Rise

and Fall, and the Future of the Administrative

State (2022) ............................................................ 25

Henry P. Monaghan, Marbury

and the Administrative State,

83 Colum. L. Rev. 1 (1983)..................................... 24

Peter L. Strauss, “Deference” Is Too Confusing – Let’s

Call Them “Chevron Space” and “Skidmore

Weight”,

112 Colum. L. Rev. 1143 (2012) ........................... 4, 7

The Federalist No. 70 (A. Hamilton) .......................... 9

1

INTEREST OF AMICI CURIAE1

Amici are professors of law who teach and write in

the fields of administrative law and federal regulation. They have an interest in how the Court’s decision will affect the role of administrative agencies.

Amici are:

William D. Araiza, Stanley A. August Professor of

Law, Brooklyn Law School;

Marshall Breger, Professor of Law, Columbus

School of Law, The Catholic University of America;

William W. Buzbee, Edward and Carole Walter

Professor of Law & Director of the Environmental

Law & Policy Program, Georgetown University Law

Center;

Samuel Estreicher, Dwight D. Opperman Professor of Law & Director of the Institute of Judicial Administration, New York University School of Law;

David L. Noll, Associate Dean for Faculty Research

and Development & Professor of Law, Rutgers Law

School;

Andrew Popper, Professor of Law, American University, Washington College of Law;

Peter L. Strauss, Betts Professor of Law Emeritus,

Columbia Law School.

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

and no person other than Amici’s counsel made a monetary contribution to fund the preparation or submission of this brief.

2

Sidney A. Shapiro, Frank U. Fletcher Chair in Administrative Law, Professor of Law, & Vice-President

of the Center for Progressive Reform, Wake Forest

University School of Law.

3

SUMMARY OF THE ARGUMENT

Amici write to address the first question presented: whether Chevron should be overruled.

Properly understood, it should not.

Chevron has been much discussed but not always

understood. On the one hand, courts have sometimes

misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of

such aggressive applications. This case provides an

opportunity for the Court to clarify what Chevron does

and does not entail, while reaffirming the essential

role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs.

Many of the criticisms leveled at Chevron are

based on the premise that it empowers agencies to

usurp the authority of the courts to interpret statutes.

So framed—and some courts have indeed seemed to

understand it this way—Chevron looks like a supercanon of construction, one that requires courts to reflexively defer to what an agency claims a statute

means whenever there is some statutory ambiguity.

But the premise is wrong. Chevron is not a doctrine for resolving statutory ambiguities as such, but

rather for identifying and policing the boundaries of

Congressional delegations. It provides a rubric to recognize when (and to what extent) Congress has

granted an agency authority to decide a matter left

unresolved by the statute, usually because the way in

4

which the statute applies to concrete situations requires elaboration through agency experience or some

aspect of the statute requires “the formulation of subsidiary administrative policy within the prescribed

statutory framework.” Yakus v. United States, 321

U.S. 414, 425 (1944). Chevron thus requires far more

than mere ambiguity—it requires statutory indeterminacy, a gap “left . . . unresolved” even after a court

has applied all its “traditional tools of statutory construction.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

1630 (2018). In other words, Chevron addresses, not

instances where statutory text might be judicially construed to have this meaning or that, but where, using

these “traditional tools,” the court cannot confidently

arrive at a judicial construction at all, either because

competing interpretations are equally plausible or because identifying a governing interpretation requires

policy assessments that courts ought not to make.

When Congress leaves such a gap—while constitutionally delegating to the agency the primary responsibility to implement the statute—Congress signals

its intent to “entrust[] to the [agency], rather than to

the courts, the primary responsibility for interpreting

the statutory term” within the limits of the authorizing statute. See Batterton v. Francis, 432 U.S. 416,

425 (1977). By Congress’s command, the agency

should exercise its discretion to fill that gap, and the

courts independently determine and police the boundaries of the agency’s delegated authority and ensure it

has exercised it reasonably. See Peter L. Strauss,

5

“Deference” Is Too Confusing – Let’s Call Them “Chevron Space” and “Skidmore Weight”, 112 Colum. L.

Rev. 1143, 1145 (2012).

So understood, Chevron need not and should not be

overruled. Since early in the history of the Republic,

Congress has seen fit to entrust executive agencies to

“fill up the details” of the more “general provisions”

that it enacts. See Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 20 (1825). Chevron, properly understood,

merely assists in identifying the boundaries of statutory delegations; it does not pose the problems Petitioner identifies with the more extravagant conceptions of the doctrine (however justified those concerns

may be). Nor does it violate the Administrative Procedure Act—on contrary, Chevron mirrors that statute by requiring courts to independently determine

the scope of agency authority and then review actions

within that scope for reasonableness. Finally, Chevron promotes, rather than threatens, the separation of

powers by giving effect to duly enacted laws.

Requiring that Congress do its job is one thing. It

is quite another to refuse Congress’s choice to delegate

certain issues—issues it could not reasonably attend

to itself—to the Executive. Chevron respects those

choices and should be reaffirmed.

6

ARGUMENT

I.

Chevron Enforces Delegations Grounded in

Statutory Structure and Context Rather

Than Resolving Mere Statutory Ambiguities.

A. Chevron centers on delegations of discretion within statutory limits.

Chevron rests on a longstanding inference: that

when Congress entrusts an agency to implement a

statute yet leaves in that statute an unresolvable ambiguity or room for policy discretion, the agency may

make policy within that space, subject to judicial policing of the boundaries. More precisely, Chevron recognizes that when a statute authorizes an agency to

implement a statutory program by promulgating governing regulations, and when the agency addresses an

issue that the statute left open, the statutory context

and structure signal that the agency’s authority extends to addressing that particular issue. Chevron

somewhat imprecisely labelled such delegations as

“implicit.” 467 U.S. 837, 843. They are more accurately described as “structural” or “contextual,” since

they are grounded in an inference from the statute’s

structure and context that Congress authorized the

7

agency to exercise policymaking discretion within a

specific area. See Strauss, supra, at 1163.2

This form of delegation is nothing new. Since the

founding, Congress has promulgated certain statutes

in “general provisions” and entrusted executive agencies to “fill up the details” as they carry out the statutory commands. Wayman, 23 U.S. at 43. For instance,

the Postal Act of 1792 gave the Postmaster General

broad discretion to determine “where to set up post offices,” and “full authority to contract for the carriage

of mail by whatever devices he thought ‘most expedient.’” Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801,

115 Yale L.J. 1256, 1294 (2006); id. at 1295 (“Congress

made broad delegations of authority in a host of other

statutes.”); see also, e.g., Act of Aug. 5, 1789 ch. 35, §

1, 1 Stat. 49 (authorizing a board of commissioners “to

carry into effect the said ordinance and resolutions of

Congress, for the settlement of accounts between the

United States and individual states”); Act of Mar. 26,

1804, ch. 35, § 1, 2 Stat. 277, 277 (delegating authority

to the surveyor-general to dispose of public lands in

the Indiana Territory according to regulations the surveyor promulgated).

As the number of statutes and administrative

agencies has grown, this Court continued to recognize

that certain statutes delegate authority to agencies to

formulate “subsidiary administrative policy within

2 We refer generically to “the agency” for convenience, but we

note that the delegations referred to in this brief can be either to

executive departments or so-called independent agencies.

8

the prescribed statutory framework.” Yakus, 321 U.S.

at 425. In the labor context, for instance, the Court

recognized in the broad terms of the National Labor

Relations Act that Congress “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.” Republic Aviation Corp. v. NLRB, 324 U.S.

793, 798 (1945) (sustaining agency interpretation of

clause banning employer “interfere[nce]” with employee concerted activity to protect the right of employees to talk to each other in the workplace on union

issues under certain circumstances). Yet that delegation did not preclude the Court from rejecting NLRB

interpretations that “rest[ed] on erroneous legal foundations” as opposed to the exercise of policymaking

discretion. NLRB v. Babcock & Wilcox Co., 351 U.S.

105, 112-13 (1956) (holding Republic Aviation did not

apply to nonemployee union organizers).

Congressional delegations of policymaking discretion are often unavoidable; “in our increasing complex

society, replete with ever changing and more technical

problems, Congress simply cannot do its job absent an

ability to delegate power under broad directives.” Mistretta v. United States, 488 U.S. 361, 372 (1989). Although members of this Court differ over the specificity

with which Congress must legislate to exercise its Article I legislative power, compare Gundy v. United

States, 139 S. Ct. 2116, 2129 (2019) (plurality) (discussing case law and application of nondelegation doctrine) with id. at 2135-42 (Gorsuch, J., dissenting)

(same), no one disputes the role of agencies subject to

9

presidential and judicial supervision in “the steady

administration of the laws,” Seila Law LLC v. Consumer Fin. Protection Bureau, 140 S. Ct. 2183, 2203

(2020) (quoting The Federalist No. 70, at 471 (A. Hamilton)).

Put in terms of congressional intent, Congress understands that by entrusting an agency to carry out a

statute, and by leaving that statute indeterminate in

certain respects, it is calling on the agency to fill in the

details with policy choices consistent with the statute

as a whole (and other applicable law). In some cases,

Congress does this expressly, specifically directing an

agency to set standards to define a statutorily undefined term. Batterton v. Francis, 432 U.S. 416, 425

(1977) (welfare statute delegating to agency authority

to set standards defining term “unemployment”). Yet

Congress may also signal its intent through statutory

structure and context, which is what Chevron appreciated and what is generally understood in other areas

of statutory construction. For instance, Congress may

direct an agency to provide that rates for utility pole

attachments are “just and reasonable.” See National

Cable & Telecomms. Ass’n, Inc. v. Gulf Power Co., 534

U.S. 327, 338-339 (2002). Or it might direct an agency

to regulate certain “stationary sources” to control pollution, without explaining (beyond the phrase itself

and the surrounding context) what “stationary

sources” are. Chevron, 467 U.S. at 846.

In such cases, one can infer that Congress intended, as surely as when it says so expressly, to grant

the agency limited authority to “formulat[e] . . . policy”

10

to fill the open space left in the statute as the agency

enforces it. Chevron, 467 U.S. at 843 (quoting Morton

v. Ruiz, 415 U.S. 199, 231 (1974)). After all, if Congress had wanted to issue the agency a precise directive, or a strict prohibition, Congress would have

said so itself. See City of Arlington v. FCC, 569 U.S.

290, 296 (2013) (“Congress knows to speak in plain

terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.”).3 Rather than do so, Congress used statutory

language that, at least as applied to the matter at issue, resists judicial construction, thus creating a defined zone for agency policymaking discretion.

B. In practice, this Court’s Chevron jurisprudence enforces structural delegations rather than resolving ordinary ambiguities.

Some courts and commentators—referring to arguably confusing language in opinions, including some

from this Court—have described or treated Chevron

as a doctrine for resolving ordinary statutory ambiguities, governing whenever statutory text bears more

than one interpretation.4 That is wrong. The Court’s

3 This does not mean that the courts are excluded from determin-

ing the scope of the agency’s delegated authority de novo, as we

explain below. Indeed, neither the majority opinion nor the dissent in City of Arlington disagreed that it is for the court to determine the boundaries of agency authority. Compare 569 U.S.

at 297, 301 (majority) with id. at 317 (Roberts, C.J., dissenting).

4 See, e.g., Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas,

J., concurring) (criticizing agencies’ use of “statutory ambiguity”

“not to find the best meaning of the text, but to formulate legally

11

actual application of Chevron in the vast majority of

its decisions reflects the understanding of the doctrine

as grounded in enforcing Congressional delegations.

And those delegations are based on the facts that the

statutory question at issue is not susceptible of judicial resolution and that the agency charged with implementing the statute has promulgated a resolution

of the question in the manner Congress has granted

the agency to act.

Thus, certain principles govern Chevron cases. A

court should not uphold an agency interpretation

when the particular issue can be resolved using ordinary tools of judicial construction. If it can, there is

no space for the agency to fill. Cf. Barnhart v. Sigmon

Coal Co., 534 U.S. 438, 462 (2002) (“Congress . . .

[does] not delegate authority to the Commissioner to

develop new guidelines or to assign liability in a manner inconsistent with the statute.”). Nor should a

court uphold an agency interpretation unless the

agency exercised delegated interpretative authority in

the manner Congress authorized. And, just as crucial,

the agency’s particular exercise of its interpretative

authority must fall within the scope of the delegation.

binding rules to fill in gaps based on policy judgments”); Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev.

2118, 2151 (criticizing this approach, and explaining, “when the

Executive Branch chooses a weak (but defensible) interpretation

of a statute, and when the courts defer, we have a situation

where every relevant actor may agree that the agency’s legal interpretation is not the best, yet that interpretation carries the

force of law. Amazing.”).

12

Each of these inquiries boils down to the same “question in every case,” namely, “whether the statutory

text forecloses the agency’s assertion of authority, or

not.” City of Arlington, 569 U.S. at 301.5

1. Chevron applies only where the statute’s meaning on the question presented

cannot be resolved with traditional

tools of judicial construction.

a. If a court can resolve the statutory interpretation question at hand, it should. There is neither need

nor warrant for Chevron deference in such cases. That

is, if a court concludes that it can construe the statute

on the question addressed by the agency, then Congress left no space for the agency to fill with its policymaking discretion.

The Court described the doctrine along such lines

from the beginning: “If a court, employing traditional

tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron, 467 U.S. at 843 n.9; City of Arlington,

569 U.S. at 296 (“[A]pplying the ordinary tools of statutory construction, the court must determine whether

Congress has directly spoken to the precise question

The principles listed bear some resemblance to the famous

multi-step framework typically associated with Chevron doctrine

as it has developed. We do not suggest that judicial review of

agency statutory interpretation involves a specific number of

steps, however, because the Court has not in fact treated Chevron’s “steps” as a rigid order of operations and because the evidence and inquiry at each “step” is often relevant to others.

5

13

at issue.”) (quotation marks omitted). Thus, “deference is not due unless a ‘court, employing traditional

tools of statutory construction,’ is left with an unresolved ambiguity.” Epic Systems, 138 S. Ct at 1630.

b. The Court’s holdings bear out this description.

Consider Chevron itself. There, Congress had empowered the EPA to enforce the Clean Air Act by limiting

modifications to “stationary sources” that increased

emissions. Chevron, 467 U.S. at 840. The EPA issued

regulations that allowed states to use a “plantwide

definition of the term ‘stationary source,’” which in effect permitted power plants to install new equipment

(like smokestacks) as long as the plant’s total emissions did not increase. Ibid. Environmental groups

challenged that interpretation as ultra vires on the

ground that “stationary source” meant individual

smokestacks, which would prohibit installation of any

new equipment that increased emissions even if that

increase were offset by other emission reductions

achieved through other plant changes.

The Chevron court scrutinized the statute to determine whether Congress had “explicitly” or “implicitly”

“left a gap” for the EPA to supply its own definition of

“stationary source.” The Court turned to each of its

usual tools of statutory construction, from text to canons to legislative history and purpose (the latter two

being less controversial then than they are now). See

id. at 842 n.7, 859-866 (invoking “statutory language,”

“context”-based canons like noscitur a sociis, “legislative history,” and purpose). Exhausting all of those

tools, the Court concluded that Congress “did not have

14

a specific intention” on the meaning of “stationary

source.” In familiar terms, this meant that Congress

had made a “legislative delegation” to the EPA to interpret the statute based on its own “policy choice.”

Id. at 844, 845.

This approach mirrored what the Court had long

done in administrative law cases. Take as an example

NLRB v. Hearst Publ’ns, in which the Court addressed

whether news vendors, called “newsboys,” were “employees” under the National Labor Relations Act. 322

U.S. 111 (1944). The Court deferred to the agency’s

construction only after (i) rejecting the construction

proffered by the employer that the statutory term

should be construed by reference to the state common

law; (ii) finding that there was no uniform meaning in

a range of federal statutes containing the same term;

and (iii) concluding that newsboys were not easily categorizable as either classic employees or classic independent contractors. See id. at 120-29.

On the other side of the ledger, the Court has often

been able to resolve statutory ambiguities using its

own independent judgment and “traditional tools” of

construction. In Dole v. United Steelworkers, for instance, the Court employed the linguistic canon noscitur a sociis and the statute’s “structure . . . as a whole”

to resolve the statutory question and therefore “decline[d] to defer to the OMB’s interpretation.” 494 U.S.

26, 36, 42 (1990). The Court has relied, too, on a preponderance of dictionary definitions, together with evidence from statutory context, to resolve statutory ambiguity. See MCI Telecomms. Corp. v. AT & T Co., 512

15

U.S. 218, 225-229 (1994) (holding that removal of regulatory filing requirements in their entirety exceeded

agency’s authority to “modify” the requirements). The

Court has also invoked substantive canons to construe

a statute and thus preclude resort to Chevron deference. See, e.g., Morrison v. Nat. Australia Bank, Ltd.,

561 U.S. 247, 272-73 (2010) (presumption against extraterritoriality); Epic Systems, 138 S. Ct. at 1630

(“canon against reading conflicts into statutes”);

I.N.S. v. St. Cyr, 533 U.S. 289, 320 n.45 (2001) (canon

against retroactive application absent a clear statement); Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Const. Trades Council, 485 U.S. 568, 575

(1988) (cannon of constitutional avoidance).

When a court does this, it essentially declares that

Congress enacted a statute with a definite meaning on

the question presented, even if that meaning requires

some judicial spadework to unearth.

To be sure, courts—including this one—have been

less than precise about how much ambiguity is needed

to trigger Chevron. In certain instances, the Court has

suggested that an agency construction is entitled to

deference so long as it is “reasonable . . .—not necessarily the only possible interpretation, nor even the

interpretation deemed most reasonable by the courts.”

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218

(2009); but see id. at 218 n.4.

This case presents the opportunity for the Court to

clarify that Chevron requires more than bare ambiguity—it requires an ambiguity “unresolved” by tradi-

16

tional methods of statutory construction. Epic Systems, 138 S. Ct. at 1630 (emphasis added). Indeed,

that was the approach “the Chevron Court itself intended,” Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2153 n.175 (2016),

and that the Court’s Chevron holdings reflect.

2. Chevron requires that Congress have

delegated to the agency authority to decide the matter following appropriate

procedures.

If the court cannot construe the statute using ordinary tools of construction, then it becomes plausible

that Congress made a structural delegation to the

agency by leaving a statutory gap—what has been

termed “Chevron Space” (see Strauss, supra at

1145)—that can be filled only by a policy choice. The

other half of the equation, then, is whether Congress

provided an affirmative indication that it desired the

agency to decide the issue at hand in the way that the

agency did. This Court has therefore recognized certain “preconditions” (Adams Fruit Co., Inc. v. Barrett,

494 U.S. 638, 649 (1990)) before a court may conclude

that a statute delegates interpretive or policymaking

discretion to the agency on a given question, no matter

how ambiguous that statute may be.

a. First, Chevron deference can be triggered only

when Congress has given the agency the power to enforce and apply the statute at issue. See United States

v. Mead Corp., 533 U.S. 218, 229 (2001). Chevron thus

requires that the agency possess “congressional authority to determine the particular matter at issue in

17

the particular manner adopted,” by which is meant (in

part) “a general conferral of rulemaking or adjudicative authority.” City of Arlington, 569 U.S. at 306 (discussing Mead).

b. Another “essential premise[]” of Chevron is that

the agency interpretation to which deference would

apply be an interpretation of “‘a statute which [the

agency] administers.’” Epic Sys. Corp, 138 S. Ct. at

1629. In Epic Systems, for instance, the NLRB in effect asserted it was entitled to deference not only for

its interpretation of the NLRA, 29 U.S.C. § 151 et

seq.—which it administers—but also for its interpretation of the Federal Arbitration Act, 9 U.S.C. § 1 et

seq., which it does not. Ibid. The Court readily rejected

that argument: Congress would not “implicitly delegate[] to an agency authority to address the meaning

of a second statute it does not administer.” Ibid.

Likewise in Adams Fruit, the Court declined to defer to an agency interpretation of a statute enforced

through private, civil litigation. By creating a private

right of action, “Congress has expressly established

the Judiciary and not the department of labor as the

adjudicator of private rights under the statute.” 494

U.S. at 649.

c. Another Chevron precondition, as Mead itself

illustrates, is that the agency issue its interpretation

in the manner Congress authorized it to do. See 533

U.S. at 231-32 (“the terms of the congressional delegation give no indication that Congress meant to delegate authority to Customs to issue classification rulings with the force of law”). Similarly, even if Congress

18

grants an agency the power to interpret statutes

through formal acts of policymaking, arguments the

agency’s lawyer first made during the litigation do not

receive deference because “Congress has delegated to

the administrative official and not to [its] counsel the

responsibility for elaborating and enforcing statutory

commands.” Bowen v. Georgetown Univ. Hosp., 488

U.S. 204, 212 (1988) (emphasis added). And, of course,

the strictures of the APA generally govern the manner

of administrative rulemaking and adjudication. See

generally 5 U.S.C. §§ 551-559.

*

*

*

*

Only if such preconditions exist can a court conclude that Congress intended a structural delegation

to the agency to exercise discretion to fill a space left

in a statute’s terms. This approach makes sense of

Chevron as a delegation doctrine. For a court to sensibly ensure the agency is exercising a power it was

given and no more, the court must ensure that the

agency was delegated authority to administer the very

statute in question, with the force of law, and in the

manner employed by the agency.

3. Assessing whether the agency acted

within the scope of the structural delegation.

Once a court has found a valid delegation to the

agency, what remains to decide is whether the agency

stayed respected the terms of that delegation (as well

as other applicable strictures including those found in

19

the APA). That inquiry demands that the agency’s action “operate within the bounds of reasonable interpretation.” Utility Air Regul. Grp. v. EPA, 573 U.S.

302, 321 (2014) (quotation marks omitted). And, the

Court has advised, “reasonable statutory interpretation must account for both the specific context in

which language is used and the broader context of the

statute as a whole.” Ibid. (quotation marks and alteration omitted). Indeed, the Court employs all its usual

tools of interpretation. See ibid. Ultimately, the

Court analyzes whether the agency has confined itself

to filling the policy space Congress left in the statute,

or whether it has gone beyond the limits of the delegation. See City of Arlington, 569 U.S. at 307. And in

this area, as throughout Chevron’s domain, “the question a court faces when confronted with an agency’s

interpretation of a statute it administers is always,

simply, whether the agency has stayed within the

bounds of its statutory authority.” City of Arlington,

569 U.S. at 297. There are a variety of ways an agency

can step beyond the pale.

a. First, an agency does so when it gives an indeterminate statutory term a meaning it cannot possibly

bear or contradicts some other term in the statute.

Even “somewhat elastic phrase[s],” after all, are “not

infinitely so.” MCI Telecomms. Corp., 512 U.S. at 232;

see also Utility Air, 573 U.S. at 328 (“[T]he need to rewrite clear provisions of the statute should have

alerted EPA that it had taken a wrong interpretive

turn.”).

20

MCI can be read as an example of this principle.

There, the Court held that the Federal Communications Commission’s authority to “modify” a common

carrier’s obligation to post its rates did not allow the

FCC to allow certain carriers representing a significant share of the market not to post their rates at all.

See 512 U.S. at 234. The Court held that the FCC’s

rule was “much too extensive” to qualify as a “modification” and violated a separate requirement that general rules like the one the FCC promulgated be limited

to “‘special circumstances or conditions.’” Id. at 231,

232 (quoting 47 U.S.C. §203(b)(2)).6

b. Second, and similarly, the agency’s interpretation may not be “inconsistent with the design and

structure of the statute as a whole.” Utility Air, 573

U.S. at 321 (quotations marks and alterations omitted).

Utility Air offers an example of an agency running

afoul of this principle. The case dealt (in part) with a

portion of the Clean Air Act called the “Prevention of

Significant Deterioration” (PSD) program. The PSD

provisions required that certain stationary sources—

those emitting more than 250 tons of “any air pollutant” per year—be equipped with advanced emission

control technologies. Id. at 309. The EPA claimed that

greenhouse gases fell within the statutory term “air

6 To be sure, the MCI Court initially construed the statutory term

“modify” as a judicial matter (see 512 U.S. at 225-229), but it

went on to assess whether the agency’s interpretation could reasonably fit within the meaning of the term so construed.

21

pollutant” and therefore were subject to the PSD program. Id. at 312.

In an exercise of boundary enforcement, the Court

rejected that interpretation. It first acknowledged

that Congress had given the EPA some discretion to

select which substances to regulate as “air pollutants.”

Utility Air, 573 U.S. at 319 (explaining that “air pollutant” described “the universe of substances the EPA

may consider regulating under the Act[]”). Yet the

EPA had gone beyond “the bounds of reasonable interpretation” in applying the PSD program to greenhouse gases. Id. at 321. Stationary sources emit greenhouse gases at far greater levels than other pollutants. If every source emitting more than 250 tons of

greenhouse gases were subject to PSD protocols, it

would have “calamitous consequences”; the number of

regulated sources would jump from 15,000 to 6.1 million, and annual compliance costs would “balloon”

from $62 million to $21 billion. Id. at 321-22. Rather

than regulating factories, the EPA would end up with

authority to regulate “smaller industrial sources” like

“large office and residential buildings” and “hotels.”

Id. at 310.

To take the same principle from the affirmative

side, the Court has taken care to assess whether the

agency’s interpretation recognizes the goals of the

statute and makes a reasonable attempt to further

them. Chevron itself reflects such an inquiry. After an

exhaustive review of the bases for the agency’s position, the Court concluded that it was consistent with

the statute’s language, see 467 U.S. at 861 (noting

22

that related language “itself implies a ‘bubble concept’

of sorts”), and the concerns motivating the statutory

scheme, see id. at 863 (observing that the EPA’s interpretation arguably furthered statute’s goals). Utility

Air, addressing a different aspect of the rule challenged there, undertook a similar analysis. See 573

U.S. at 332 (holding that the challengers failed to

demonstrate that the rule’s demands would “be of a

significantly different character from those traditionally associated with PSD review”).

c. A third, overarching, ground for rejecting an

agency’s interpretation is the so-called major questions doctrine. As Justice Barrett recently explained,

this doctrine is best understood as rooted in the common-sense insight that, depending on the statutory

context, “a reasonable interpreter [of the statute]

would expect [Congress] to make the big-time policy

calls itself, rather than pawning them off to another

branch.” Biden v. Nebraska, 143 S. Ct. 2355, 2380

(2023) (Barrett, J., concurring); see also id. at 2379

(“[C]ontext is also relevant to interpreting the scope of

a delegation.”).

The Court has applied the doctrine that way in

Chevron cases, assessing whether, in context, the

agency’s assertion of authority is plausible. See West

Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022) (rejecting EPA program premised on a “rarely . . . used” and

“ancillary” statutory provision where program would

“substantially restructure the American energy market” and “Congress had conspicuously and repeatedly

declined to enact” similar proposals); see also FDA v.

23

Brown & Williamson Tobacco Corp., 529 U.S. 120,

158-60 (2000). As an inference based on statutory text

and context, the doctrine fits comfortably within the

Chevron question “whether the agency has stayed

within the bounds of its statutory authority.” City of

Arlington, 569 U.S. at 297; see also Brian Chen &

Samuel Estreicher, The New Nondelegation Regime,

102 Tex. L. Rev. (forthcoming).7

d. Finally, the agency must comply with the APA

and any other procedural requirements. This includes

the use of notice-and-comment rulemaking where appropriate, arbitrary-and-capricious review, and the

like. See generally 5 U.S.C. §§ 553, 556, 557. Indeed,

while Chevron unfortunately did not cite the APA, its

analysis of the “reasonableness” of the agency’s interpretation is best understood by reference to APA

§ 706. Chevron assesses both the legal nature of the

agency’s authority and whether its exercise was an

abuse of discretion in various ways, which mirrors

what the APA commands. See generally 5 U.S.C.

§ 706(2).

*

*

*

*

If a court ultimately concludes that deference to

the agency is warranted, that is not because the judicial role has been abdicated, or merely because a statute appears “ambiguous.” It is instead because the

court is satisfied that Congress delegated to the

agency limited discretion to fill a gap in the statute,

7 Available at SSRN: https://ssrn.com/abstract=4376257.

24

and that the agency limited itself to doing so consistent with the statute and in the manner prescribed

by Congress.

II.

So understood, Chevron need not be and

should not be overruled.

A. Chevron does not pose the sort of concerns that Petitioner raises.

Properly understood, Chevron does not pose the

sort of separation of powers concerns that Petitioner

raises. Rather, it performs an essential office.

a. For one, because courts say “what the law is”

when applying Chevron, there is no “executive

branch[] aggrandizement.” Contra Pet. 30-31; Pet. Br.

24-25. When Chevron applies, it means Congress has

delegated to an agency, by statute, the authority to fill

a gap with a policy choice. Assuming that delegation

is constitutionally permissible, courts fulfill their judicial duty when they police the statutory limits on

that authority and verify that the agency acts reasonably and within the scope of its delegation. This sort

of deference—respect for the statute as Congress

wrote it rather than abdication to the agency to rewrite the statute—in no way offends the separation of

powers. As Professor Henry P. Monaghan’s famous

pre-Chevron article put it, “[j]udicial deference to

agency ‘interpretation’ of law is simply one way of recognizing a delegation of lawmaking authority to an

agency.” Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 26 (1983).

25

For the same reasons, Petitioner’s APA arguments

miss the mark. See Pet Br. 28-29 (arguing that Section

706 of the APA forecloses Chevron). “There is no conflict between Section 706 and a decision to defer to an

agency interpretation if the court concludes, as a matter of independent judgment, that Congress intended

to defer to the agency’s interpretation.” Thomas W.

Merrill, The Chevron Doctrine: It’s Rise and Fall, and

the Future of the Administrative State 48 (2022). Indeed, as noted above, Chevron’s approach mirrors the

APA’s strictures.

b. Nor does the faithful interpretation of statutory

delegations threaten injury to “the citizenry.” Contra

Pet. 31; Pet. Br. 38. Under Chevron, agencies exercise

only the interpretive authority given to them by Congress. It is Congress, not agencies, that decides how

much authority agencies receive; it is the courts that

enforce that decision consistent with the Constitution;

and it is Congress again that can decide whether the

delegation and what the agency did with it were wise

policy. And there is some empirical evidence that Congress does, in fact, evaluate and re-evaluate its delegation choices. See David Epstein & Sharyn O’Halloran, Delegating Powers: A Transaction Cost Politics

Approach To Policy Making Under Separate Powers

237 (1999) (summarizing findings that “[l]egislators

carefully adjust and readjust discretion over time and

across issue areas so as to balance the marginal costs

and benefits of legislative action against those of delegation.”). Of course, the proper route for the citizenry

to challenge permissible but unwise delegations is

through the political process.

26

c. Finally, while amici concur that this case presents an opportunity for the Court to clarify when a

court should find a delegation to the agency, Petitioner’s arguments that Chevron is unworkable are

misguided. Contra Pet. Br. 33-35. Petitioner’s chief

complaint is that “there is no good answer to how

much ambiguity is enough to get from step one to step

two.” Pet. Br. 33. That critique proves too much. As

stressed above, Chevron deference should apply only

if the statute leaves open a policy space—that is, the

court cannot answer the particular question as a matter of judicial construction. The Court has applied similar standards before, for example in applying the rule

of lenity. See Ocasio v. United States, 578 U.S. 282,

295 n.8 (2016) (“That rule applies only when a criminal statute contains a ‘grievous ambiguity or uncertainty,’ and ‘only if, after seizing everything from

which aid can be derived,’ the Court ‘can make no

more than a guess as to what Congress intended.’”)

(internal quotation omitted); Wooden v. United States,

142 S. Ct. 1063, 1075 (2022) (Kavanaugh, J., concurring). If this standard is up to the task of protecting

individual rights in criminal cases, Pet. Br. 38

(“breaking . . . ties”), then so too can it be trusted to

assess legislative delegations.

B. Chevron Should Not Be Abandoned Because It Plays An Important Role In How

Courts Apply Indeterminate Statutes

Not only is there no need to overrule Chevron,

properly construed, there is need not to do so. Policy-

27

making discretion in the execution of laws is a necessary aspect of the constitutional scheme and an inevitable incident of legislation on complex subjects. Utility Air, 573 U.S. at 327 (“The power of executing the

laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration.”).

The implications of an over-scrupulous insistence

that the executive undertake no statutory interpretation whatsoever would be troubling. To take one example, Congress would have to determine in advance

the rates that would apply to utility pole attachments,

or perhaps courts would have to decide whether specific rates count as “just and reasonable.” Cf. Nat’l Cable & Telecomms. Ass’n, Inc. v. Gulf Power Co., 534

U.S. 327 (2002). Neither is feasible. In short, although

there are surely examples of courts deferring too readily to executive interpretations, there are also numerous areas where appropriate deference, as set forth

above, is essential.

And this is not only because agencies have illuminating expertise in the relevant area, although in

many cases they do. It is also because Congress, on the

one hand, cannot determine ex ante every particular

issue that might arise under statutory program. And

courts, on the other, cannot construe ex post, as a matter of judicial construction, the sometimes necessarily

indeterminate terms Congress must use. To ask

courts to do so would be to force the judiciary to divine

interpretations of statutes based on something other

than the usual tools of statutory construction. The

28

temptation to rest decisions on policy concerns—and

thereby transgress the limits of the judicial role and

harm the public impression of the judiciary—would be

great.

Moreover, the abandonment of Chevron would require courts to substitute their judgments for judgments Congress constitutionally delegated to the

agency. For that reason, “The court is not empowered

to substitute its judgment for that of the agency.”

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

402, 416 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Just as judicial

oversight ensures that agencies do not exceed their

lawful boundaries, Chevron, properly understood

helps courts avoid exceeding theirs.

CONCLUSION

For the foregoing reasons, the Court should reaffirm Chevron.

Respectfully submitted,

September 22, 2023

29

Daniel M. Sullivan

Counsel of Record

Brian T. Goldman

Jessica Marder-Spiro

HOLWELL SHUSTER

& GOLDBERG LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5151

dsullivan@hsgllp.com

Counsel for Amici Curiae