Petition for Writ of Certiorari — Derek Steven Trumbull, Petitioner v. United States

Supreme Court briefMar 21, 2025

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APPENDIX A

United States v. Trumbull, 114 F.4th 1114 (9th Cir. 2024)

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

Affirmed.

114 F.4th 1114

United States Court of Appeals, Ninth Circuit.

UNITED STATES of

America, Plaintiff - Appellee,

Derek Steven TRUMBULL,

Defendant - Appellant.

No. 23-912

Argued and Submitted May

6, 2024 Seattle, Washington

Filed August 22, 2024

Synopsis

Background: Defendant pled guilty in the

United States District Court for the District

of Montana, Dana L. Christensen, J., to

being a felon in possession of a firearm, and

was sentenced to 24 months’ imprisonment

followed by a three-year term of supervised

release. Defendant appealed.

Holdings: The Court of Appeals, Owens,

Circuit Judge, held that:

Sentencing Guidelines commentary reasonably

defined ambiguous term “large capacity

magazine,” thus warranting judicial deference,

and

offense involved a semiautomatic firearm

capable of accepting a large capacity magazine,

for purposes of enhancing base offense level.

Bea, Circuit Judge, filed opinion concurring in

judgment.

Procedural Posture(s): Appellate Review;

Sentencing or Penalty Phase Motion or

Objection.

West Codenotes

Recognized as Unconstitutional

Cal. Penal Code § 32310

Recognized as Preempted

N.J. Stat. Ann. § 2C:39-3

*1116 Appeal from the United States District

Court for the District of Montana Dana L.

Christensen, District Judge, Presiding, D.C.

No. 9:22-cr-00052-DLC-1

Attorneys and Law Firms

Karla E. Painter (argued), Assistant United

States Attorney, District of Montaana; Jesse

A. Laslovich, United States Attorney; United

States Department of Justice, United States

Attorney's Office, Missoula, Montana; Tim

Tatarka, Assistant United States Attorney,

United States Department of Justice, United

States Attorney's Office, Billings, Montana; for

Plaintiff-Appellee.

John Rhodes (argued), Assistant Federal Public

Defender; Rachel Julagay, Federal Defender,

District of Montana; Federal Defenders of

Montana (Missoula), Missoula, Montana; for

Defendant-Appellant.

Before: William A. Fletcher, Carlos T. Bea, and

John B. Owens, Circuit Judges.

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

*1117 indicted on federal felon-in-possession

charges. He pled guilty without a plea

agreement to one count of being a prohibited

person in possession of a firearm in violation of

18 U.S.C. § 922(g)(1).

Opinion by Judge Owens;

Concurrence by Judge Bea

OPINION

OWENS, Circuit Judge:

Derek Steven Trumbull pled guilty to being a

felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1) and received a below

Guidelines sentence of twenty-four months’

imprisonment, followed by a three-year term

of supervised release. He now challenges

the calculation of his Guidelines range—

specifically, the increase of his base offense

level under U.S.S.G. § 2K2.1(a)(4)(B) (U.S.

Sent'g Comm'n 2023). We affirm.

I. BACKGROUND

On March 8, 2022, a Missoula Motel 6

employee called 911 to report that a man had

been passed out for over three hours in a

running vehicle in the parking lot. Officers

arrived to conduct a welfare check and found

Derek Steven Trumbull in the car with a

Glock 17 on his hip. The firearm was loaded

with a magazine containing seventeen rounds

of nine-millimeter ammunition, and Trumbull

was also carrying two spare Glock magazines

—one equipped with the standard seventeen

rounds of nine-millimeter ammunition and the

other with eighteen rounds of nine-millimeter

ammunition.

Trumbull

had

multiple

prior

felony

The

Probation

Office's

Presentence

Investigation Report (“PSR”) calculated

Trumbull's base offense level as twenty under

U.S.S.G. § 2K2.1 (U.S. Sent'g Comm'n 2023),

which is the Guideline for a violation of

18 U.S.C. § 922(g)(1). Section 2K2.1 sets

the base offense level at twenty if “the (i)

offense involved a (I) semiautomatic firearm

that is capable of accepting a large capacity

magazine ... and (ii) defendant (I) was a

prohibited person at the time the defendant

committed the instant offense.” § 2K2.1(a)(4)

(B) (emphasis added). Section 2K2.1 does not

define a “semiautomatic firearm that is capable

of accepting a large capacity magazine,” but

Application Note 2 of the commentary to §

2K2.1 (“Application Note 2”) says it means:

a semiautomatic firearm that

has the ability to fire many

rounds without reloading

because at the time of the

offense (A) the firearm had

attached to it a magazine

or similar device that could

accept more than 15 rounds

of ammunition; or (B) a

magazine or similar device

that could accept more than

15 rounds of ammunition

was in close proximity to the

firearm.

convictions. 1 On October 26, 2022, he was

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

§ 2K2.1 cmt. n.2.

The PSR deducted three levels for Trumbull's

acceptance of responsibility, so his total offense

level was seventeen. Based on Trumbull's

offense level of seventeen and criminal history

category of IV, his Guidelines range was thirtyseven to forty-six months’ imprisonment.

Trumbull objected to the PSR. He did not

dispute that the firearm he possessed fell

within Application Note 2. Instead, he attacked

Application Note 2 on its face as an invalid

interpretation of § 2K2.1 under Kisor v. Wilkie,

588 U.S. 558, 139 S.Ct. 2400, 204 L.Ed.2d 841

(2019). The district court overruled Trumbull's

objection and applied § 2K2.1, as interpreted in

Application Note 2, in calculating Trumbull's

Guidelines range.

The district court sentenced Trumbull to a

below Guidelines sentence of twenty-four

months’ imprisonment, followed by a threeyear term of supervised release, to run

concurrently with any sentences imposed

in pending state proceedings. Trumbull has

finished serving his federal prison term, and his

federal supervised release will begin once he is

released from state custody.

On appeal, Trumbull reasserts that Application

Note 2 is an invalid interpretation of the

phrase “semiautomatic firearm that is capable

of accepting a large capacity magazine” in §

2K2.1, and the district court erred by adopting

it.

II. DISCUSSION

A. Standard of Review and Kisor

Deference

We review a district court's interpretation of the

Guidelines de novo. United States v. Castillo,

69 F.4th 648, 652 (9th Cir. 2023).

The Supreme Court has said that the

commentary to the Guidelines “is akin to an

agency's interpretation of its own legislative

rules.” Stinson v. United States, 508 U.S. 36,

45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

As a result, we apply Kisor v. Wilkie, 588 U.S.

558, 139 S.Ct. 2400, 204 L.Ed.2d 841 (2019),

to determine whether *1118 to defer to the

commentary's interpretation of a Guideline. 2

Castillo, 69 F.4th at 655–56.

B. Application Note 2's Definition of

“Large Capacity Magazine” Warrants

Deference under Kisor

Kisor held that a court should defer to an

agency's interpretation of its own regulation

if (1) the regulation is “genuinely ambiguous”

after “exhaust[ing] all the ‘traditional tools’

of construction”; (2) the interpretation is

“reasonable”; and (3) “the character and

context of the agency interpretation entitles

it to controlling weight” because (i) the

interpretation is the agency's “ ‘official

position,’ rather than any more ad hoc

statement not reflecting the agency's views”;

(ii) the interpretation “implicate[s] [the

agency's] substantive expertise”; and (iii) the

interpretation reflects the agency's “fair and

considered judgment.” 588 U.S. at 574–79,

139 S.Ct. 2400 (citations omitted). Application

Note 2 satisfies these requirements.

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

First, the term “large capacity magazine”

is ambiguous within the meaning of Kisor

because of the relative nature of the word

“large.” In Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208, 129 S.Ct. 1498, 173 L.Ed.2d 369

(2009), the Supreme Court considered whether

to defer to the Environmental Protection

Agency's interpretation of the phrase “best

technology available for minimizing adverse

environmental impact” under Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 104 S.Ct. 2778, 81

L.Ed.2d 694 (1984), overruled by Loper Bright

Enters. v. Raimondo, ––– U.S. ––––, 144 S.

Ct. 2244, 219 L.Ed.2d 832 (2024). Entergy

Corp., 556 U.S. at 218–19, 129 S.Ct. 1498.

Like Kisor, Chevron required ambiguity for

deference. Chevron, 467 U.S. at 842–43, 104

S.Ct. 2778. In Entergy Corp., the Court applied

Chevron and upheld the agency's interpretation

after rejecting the argument that “minimizing”

conclusively meant “reducing to the smallest

amount possible” because “ ‘minimize’ is a

term that admits of degree and is not necessarily

used to refer exclusively to the ‘greatest

possible reduction.’ ” Entergy Corp., 556 U.S.

at 218–19, 129 S.Ct. 1498.

Like “minimize,” “large” is ambiguous

because it “admits of degree.” Id. at

219, 129 S.Ct. 1498. The Oxford English

Dictionary Online defines “large” as “[g]reat

in size, amount, or degree; big; wide;

full.” Large, Oxford English Dictionary

Online,

https://www.oed.com/dictionary/

large_adj?tab=meaning_and_use#39730644

(last visited July 29, 2024). “Large” is

a comparative term. Whether a magazine's

capacity is “large” may vary depending on

the context or the purpose for which the

magazine is used. As a result, there is

“uncertaint[y]” about the meaning of “large

capacity magazine.” Kisor, 588 U.S. at 566,

139 S.Ct. 2400.

The structure of § 2K2.1 does not resolve

this uncertainty, nor do its history or purpose.

The phrase “large capacity magazine” was

added to § 2K2.1 in 2006, when the U.S.

Sentencing Commission (“the Commission”)

amended § 2K2.1 to delete cross-references

to expired provisions of the Violent Crime

Control and Law Enforcement Act of 1994,

Pub. L. No. 103–322, 108 Stat. 1796. U.S.S.G.,

Supp. Appx. C. Amend. 691 (Nov. 1, 2006).

The Violent *1119 Crime Control and Law

Enforcement Act of 1994 defined “large

capacity ammunition feeding device” as “a

magazine ... that has a capacity of ... more

than 10 rounds of ammunition.” Violent Crime

Control and Law Enforcement Act of 1994

§ 110103(b) (formerly codified at 18 U.S.C.

§ 921(a)(31)). This differing definition of

“large capacity magazine” also suggests that

the phrase is ambiguous.

Trumbull asserts that “large capacity

magazine” is not “ambiguous” under Kisor

because “[t]he plain language definition of

large is ‘relatively great.’ ” Thus, Trumbull

concedes that “ ‘large’ is a relative measure”

but suggests that this relativity is not enough

for ambiguity within the meaning of Kisor.

We disagree. A vague or imprecise regulation

can be ambiguous under Kisor. See Rafferty

v. Denny's, Inc., 13 F.4th 1166, 1181 (11th

Cir. 2021) (rejecting the argument that “when

Kisor said a regulation must have ‘multiple

reasonable meanings,’ it required, for the

first time, that a regulation not be just

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

‘vague’ or lack precision ... but that it

satisfy essentially a term-of-art definition of

‘ambiguous’ ”). Accordingly, because “large

capacity magazine” is a relative term with

a meaning that may vary depending on the

context, it is ambiguous under Kisor.

Second, Application Note 2 is a reasonable

interpretation of “large capacity magazine.”

At least twelve states restrict or regulate the

possession of large capacity magazines, 3 and

three of those states define large capacity

magazine as Application Note 2 does. 4 Eight

states restrict magazines capable of accepting

ten rounds of ammunition. 5 Only one state

a magazine that can accept more than fifteen

rounds is not also a “large capacity magazine.”

*1120 Trumbull also objects to the “numeric

specificity” of Application Note 2. He asserts

that, by promulgating a bright-line rule,

the Commission was legislating rather than

interpreting. But Application Note 2 is a

valid interpretive rule because it “explain[s]”

the Guidelines by specifying what constitutes

“large.” United States v. Kirilyuk, 29 F.4th

1128, 1138 (9th Cir. 2022). It does “not enact

policy changes to them.” Id. Consequently,

Application Note 2's interpretation of “large

capacity magazine” is reasonable.

sets the floor higher. 6 Likewise, Congress

itself has previously defined “large capacity

ammunition feeding device” as “a magazine ...

that has a capacity of ... more than 10 rounds

of ammunition.” Violent Crime Control and

Law Enforcement Act of 1994 § 110103(b).

Application Note 2's interpretation of “large

capacity magazine” as more than fifteen

rounds “come[s] within the zone” of these

other definitions—somewhere between ten and

seventeen rounds. Kisor, 588 U.S. at 576, 139

S.Ct. 2400.

Finally, Application Note 2 meets the three

“especially important markers for identifying”

when deference is appropriate. Kisor, 588

U.S. at 576–77, 139 S.Ct. 2400. First, the

parties agree that Application Note 2 is the

Commission's “official position,” id. at 577,

139 S.Ct. 2400 (quoting United States v. Mead

Corp., 533 U.S. 218, 257–59 & n.6, 121

S.Ct. 2164, 150 L.Ed.2d 292 (2001) (Scalia,

J., dissenting)), which weighs in favor of

deference.

Trumbull contends that “large capacity

magazine” should be defined in relation to a

standard capacity magazine, and that standard

capacity should, in turn, be defined based on

what is popular within the gun industry. The

popularity of a firearm with a seventeen-round

capacity does not defeat the reasonableness of

Application Note 2. Something can be both

popular and large, such as the standard capacity

magazine of this popular firearm. But the

popularity of that firearm does not mean that

Second, in assessing the relative dangerousness

of magazines of different capacities, the

Commission acted within the scope of its

authority, see id. at 577–78, 139 S.Ct. 2400,

to “establish sentencing policies and practices

for the [f]ederal criminal justice system,”

28 U.S.C. § 991(b)(1). Trumbull argues that

Application Note 2 does not implicate the

Commission's substantive expertise because

it “parrots the statutory text” of the Violent

Crime Control and Law Enforcement Act of

1994. But Application Note 2 does not “parrot

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

the statutory text” because Application Note

2 provides a different (and more lenient)

definition of large capacity magazine than the

Violent Crime Control and Law Enforcement

Act of 1994 did. Indeed, Application Note

2 sets a higher floor for “large capacity

magazine.”

Third, the Court in Kisor cautioned against

deferring to a “convenient litigating position”

or “new interpretation ... that creates ‘unfair

surprise’ to regulated parties.” 588 U.S. at 579,

139 S.Ct. 2400 (first quoting Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 155,

132 S.Ct. 2156, 183 L.Ed.2d 153 (2012); and

then quoting Long Island Care at Home, Ltd.

v. Coke, 551 U.S. 158, 170, 127 S.Ct. 2339,

168 L.Ed.2d 54 (2007)). These concerns are

not present here. While the Commission is

not required to submit commentary to notice

and comment or congressional review, the

challenged definition in Application Note 2

was, in fact, published in the Federal Register

with a “request[ ] [for] comment regarding

whether there is an alternative definition [the

Commission] should consider,” see Sentencing

Guidelines for United States Courts, 71 Fed.

Reg. 4782, 4789–90 (Jan. 27, 2006) (defining

“[h]igh-capacity, semiautomatic firearm” as “a

semiautomatic firearm that has a magazine

capacity of more than [15] cartridges” (second

alteration in original)), and submitted to

Congress for review, Sentencing Guidelines

for United States Courts, 71 Fed. Reg. 28063,

28069–71 (May 15, 2006). 7 These procedural

steps support *1121 that Application Note 2

was an exercise of the Commission's “fair and

considered judgment.” Kisor, 588 U.S. at 579,

139 S.Ct. 2400 (quoting Christopher, 567 U.S.

at 155, 132 S.Ct. 2156).

III. CONCLUSION

Application Note 2's interpretation of “large

capacity magazine” in § 2K2.1 meets the

extensive requirements for deference laid out in

Kisor. Therefore, the district court did not err

in applying § 2K2.1(a)(4)(B), as interpreted by

Application Note 2, to Trumbull's base offense

level when calculating his Guidelines range.

AFFIRMED.

BEA, Circuit Judge, concurring in the

judgment:

I agree that the Glock 17 that DefendantAppellant Derek Trumbull possessed at

the time of his offense qualifies as a

“semiautomatic firearm that is capable of

accepting a large capacity magazine” for

purposes of enhancing his base offense level

under the Sentencing Guidelines. See U.S.S.G.

§ 2K2.1(a)(4)(B).

But I do not agree that Application Note 2

of the commentary to § 2K2.1 is entitled to

deference under Kisor v. Wilkie because, in

my view, the term “large capacity magazine”

is not “genuinely ambiguous.” See Kisor v.

Wilkie, 588 U.S. 558, 573, 139 S.Ct. 2400,

204 L.Ed.2d 841 (2019). “Large capacity

magazine” is not a term “genuinely susceptible

to multiple reasonable meanings,” unless the

context in which it was used were to include

publications such as Time. See id. at 581,

139 S.Ct. 2400 (emphasis added); Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410,

414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)

(deferring to an agency only “if the meaning

of the words used is in doubt” (emphasis

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

added)). All agree that the meaning of the

term “large capacity magazine,” when used in

relation to a firearm, is a firearm magazine

that is “[g]reat in size, amount, or degree.”

Large, Oxford English Dictionary. When, as

here, a term has an “unquestionable meaning,”

it is not made ambiguous merely because it

has “uncertain application to various factual

situations.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts

31 (2012). People may disagree as to how many

cartridges must fit into a magazine to make it

“large.” But disagreement does not constitute

ambiguity. And Kisor, which recognized the

“strong judicial role in interpreting rules,” puts

the onus on courts—not agencies—to interpret

and apply unambiguous rules like § 2K2.1,

even if those rules are vague or imprecise. See

Kisor, 588 U.S. at 580, 139 S.Ct. 2400.

Rather than “wave the ambiguity flag” merely

because the “regulation [is] impenetrable on

first read,” see id. at 575, 139 S.Ct. 2400,

as the majority does today, I would “exhaust

all the ‘traditional tools’ of construction” to

interpret the term “large capacity magazine”

and apply that term to the facts of this case,

see id. (quoting *1122 Chevron U.S.A., Inc.

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

843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984), overruled by Loper Bright Enters. v.

Raimondo, ––– U.S. ––––, 144 S. Ct. 2244, 219

L.Ed.2d 832 (2024)). Here, the Glock 17 that

Trumbull possessed at the time of his offense—

which could accept a magazine with 17 rounds

of ammunition—unambiguously qualifies as

a “semiautomatic firearm that is capable of

accepting a large capacity magazine” as that

term was understood when the current version

of § 2K2.1 was promulgated. See U.S.S.G. §

2K2.1(a)(4)(B). That should be the end of the

matter. We have “no business deferring to any

other reading” when the regulatory language

applies unambiguously to the facts before us.

See Kisor, 588 U.S. at 575, 139 S.Ct. 2400.

After all, it “makes no sense to speak of a

‘permissible’ interpretation that is not the one

the court, after applying all relevant interpretive

tools, concludes is best.” Loper Bright, 144 S.

Ct. at 2266.

Accordingly, I agree that the district court's

sentencing order should be affirmed. But

the majority's choice to assign interpretive

authority over the unambiguous language in

§ 2K2.1 to the Sentencing Commission “rests

on a profound misconception of the judicial

role” and expands Kisor deference far beyond

its limited scope. See id. at 2268. I therefore

concur only in the judgment.

In 1994, Congress enacted the Violent Crime

Control and Law Enforcement Act, Pub. L. No.

103–322, 108 Stat. 1796 (the “Act”). The Act

made it unlawful to possess specified firearms,

as well as “large capacity ammunition feeding

devices,” which it defined as a “magazine ...

that has a capacity of ... more than 10 rounds

of ammunition.” Violent Crime Control and

Law Enforcement Act, § 110103(b) (formerly

codified at 18 U.S.C. § 922(a)(31)). The Act

also directed the Sentencing Commission to

amend the Sentencing Guidelines to provide for

a sentencing enhancement in cases in which

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

a “semiautomatic firearm is involved.” Id. §

110501.

In response, the Sentencing Commission took

two actions. First, it amended § 2K2.1 to

cross-reference the Act and, in turn, to provide

for an enhanced sentence in cases in which

an offender possessed a firearm specified

in the Act. U.S.S.G. § 2K2.1, Amend. 522

(Nov. 1995). Second, it amended § 5K2.17

to “provide a specific basis for an upward

departure when a high-capacity semiautomatic

firearm is possessed.” U.S.S.G. § 5K2.17,

Amend. 531 (Nov. 1995). Section 5K2.17,

like the Act, defined the term “high-capacity,

semiautomatic firearm” as a firearm “that has a

magazine capacity of more than ten cartridges.”

U.S.S.G. § 5K2.17 (1995).

In 2004, Congress allowed the weapons

prohibitions of the Act to expire. Because §

2K2.1 had cross-referenced the provisions of

the Act, the Sentencing Commission amended

§ 2K2.1 to “clarify that the enhanced base

offense levels continued to apply in the wake

of the sunset of the federal assault weapons

ban.” United States v. Gordillo, 920 F.3d 1292,

1298 (11th Cir. 2019); see U.S.S.G. § 2K2.1,

Amend. 691 (Nov. 2006) (explaining that the

Commission amended § 2K2.1 because it had

“received information regarding inconsistent

application as to whether the enhanced base

offense levels apply ... in light of the

ban's expiration”). Accordingly, the Sentencing

Commission deleted the cross-reference to

the Act and incorporated the language in

effect today: a base offense level enhancement

applies if a § 922(g)(1) offender possessed

a “semiautomatic firearm that is capable of

accepting a large capacity magazine.” See

*1123 U.S.S.G. § 2K2.1, Amend. 691. Section

2K2.1, however, does not define the term “large

capacity magazine.” Rather, the Sentencing

Commission issued Application Note 2 as

commentary to § 2K2.1. Application Note 2

provides:

[A] “semiautomatic firearm that is capable

of accepting a large capacity magazine”

means a semiautomatic firearm that has the

ability to fire many rounds without reloading

because at the time of the offense (A) the

firearm had attached to it a magazine or

similar device that could accept more than

15 rounds of ammunition; or (B) a magazine

or similar device that could accept more

than 15 rounds of ammunition was in close

proximity to the firearm.

U.S.S.G. § 2K2.1, App. Note 2.

On March 8, 2022, Trumbull was arrested while

in possession of a Glock 17. The firearm was

loaded with a magazine containing 17 rounds

of ammunition. Trumbull was also carrying

one magazine that contained 17 rounds

of ammunition and another that contained

18 rounds of ammunition. Officers also

recovered a magazine containing 31 rounds

of ammunition in the trunk of Trumbull's

car. Trumbull, who had multiple prior felony

convictions, was indicted under 18 U.S.C. §

922(g)(1), which makes it a crime for any

person to possess a firearm if he had previously

been convicted of at least one felony. Trumbull

pleaded guilty.

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

At sentencing, the district court afforded Kisor

deference to the commentary in Application

Note 2 and enhanced Trumbull's base offense

level from 14 to 20 pursuant to § 2K2.1.

Specifically, the district court determined that

Trumbull possessed a “semiautomatic firearm

that is capable of accepting a large capacity

magazine” under Application Note 2, because

the firearm he possessed at the time of his

offense “could accept more than 15 rounds of

ammunition.” U.S.S.G. § 2K2.1, App. Note

2. The district court imposed a sentence of

twenty-four months’ imprisonment, followed

by a three-year term of supervised release.

On appeal, Trumbull argues that the district

court erred when it afforded Kisor deference

to the commentary in Application Note 2 to §

2K2.1.

II.

Because courts have primary interpretive

authority over questions of law, we review the

district court's interpretation of the Sentencing

Guidelines de novo. See United States v.

Rivera-Constantino, 798 F.3d 900, 902 (9th Cir.

2015). As with any statute or regulation that

comes before us, “[w]e interpret the Sentencing

Guidelines using the ordinary tools of statutory

interpretation.” United States v. Martinez, 870

F.3d 1163, 1166 (9th Cir. 2017).

When the Sentencing Commission issues

commentary that purports to interpret

the Sentencing Guidelines, we apply the

“demanding deference standard articulated in

Kisor” to evaluate whether to give weight to

that commentary. United States v. Castillo, 69

F.4th 648, 655 (9th Cir. 2023). Under Kisor,

“the possibility of deference can arise only

if a regulation is genuinely ambiguous.” 588

U.S. at 573, 139 S.Ct. 2400. Accordingly,

if a Sentencing Guideline is unambiguous,

Kisor “makes it impermissible to defer” to

the commentary. Castillo, 69 F.4th at 663; see

Kisor, 588 U.S. at 574–75, 139 S.Ct. 2400 (“If

uncertainty does not exist, there is no plausible

reason for deference.”). The baseline of judicial

review stays in place, and it remains our duty to

interpret the Sentencing Guidelines, as in any

other statutory interpretation case. See Kisor,

588 U.S. at 580, 139 S.Ct. 2400 (cabining

the scope of agency deference to genuinely

ambiguous regulations *1124 to “maintain[ ]

a strong judicial role in interpreting rules”).

Accordingly, the threshold question under

Kisor is always whether a rule is “genuinely

ambiguous.” Id. at 573, 139 S.Ct. 2400. No

ambiguity, no deference. And a court may

not merely “wave the ambiguity flag just

because it found the regulation impenetrable

on first read.” Id. at 575, 139 S.Ct. 2400.

Rather, “before concluding that a rule is

genuinely ambiguous, a court must exhaust

all the ‘traditional tools’ of construction,” just

as “it would if it had no agency to fall back

on.” Id. (quoting Chevron, 467 U.S. at 843

n.9, 104 S.Ct. 2778). In other words, Kisor

requires us to conduct a searching inquiry into

the meaning of a rule before assigning our

interpretive authority—the core of the judicial

power—to an agency. See id. at 580–81, 139

S.Ct. 2400.

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

The majority concludes that the term “large

capacity magazine” is ambiguous because the

term “large” is relative, vague, and imprecise.

Maj. Op. at 1118-19. I do not dispute that

characterization. But Kisor does not allow

us to skirt our judicial role any time a

regulation is vague, relative, or difficult to

apply. See Kisor, 588 U.S. at 575, 139

S.Ct. 2400 (“[H]ard interpretive conundrums,

even relating to complex rules, can often be

solved.”). Rather, it is our duty as judges to

resolve these uncertainties ourselves.

The majority's assertion that § 2K2.1 is

ambiguous because the term “large capacity

magazine” is “vague or imprecise” overlooks

the fundamental distinction between ambiguity

and vagueness. Maj. Op. at 1119; see Brian

H. Bix, A Dictionary of Legal Theory 217

(2004) (“Vagueness should not be confused

with ambiguity.”). A term is ambiguous

“when the question is which of two or more

meanings applies,” such as whether “table”

refers to furniture or a mathematical chart.

Scalia & Garner, Reading Law 31–32; see

Robinson v. Shell Oil Co., 519 U.S. 337,

341, 343, 117 S.Ct. 843, 136 L.Ed.2d 808

(1997) (explaining that the “ambiguity of

statutory language is determined by reference

to the language itself”) 1 . In contrast,

a term is vague—not ambiguous—when

its “unquestionable meaning has uncertain

application to various factual situations.”

Scalia & Garner, Reading Law 32; see

Rafferty v. Denny's, Inc., 13 F.4th 1166,

1199 (11th Cir. 2021) (Luck, J., concurring

in the judgment) (noting the “difference

between more-than-one-meaning (ambiguity)

and uncertain application (vagueness)”). If a

court can deduce the meaning of the words after

“performing [a] thoroughgoing review,” the

term is not ambiguous; it is vague. See Kisor,

588 U.S. at 581, 139 S.Ct. 2400. And Kisor

deference applies only to ambiguous rules, not

to vague rules.

The Supreme Court recognized as much in

Kisor. There, the Court reasoned that a term is

ambiguous only if it is “genuinely susceptible

to multiple reasonable meanings.” Id. And it

cited Seminole Rock to clarify that a court

may defer to an agency “only ‘if the meaning

of the words used is in doubt.’ ” Id. at 574,

139 S.Ct. 2400 (emphases added) (quoting

Seminole Rock, 325 U.S. at 414, 65 S.Ct. 1215).

In other words, Kisor deference applies only

when the meaning of the words used in the

rule is uncertain; not when their application

is uncertain. See id. at 573, 139 S.Ct. 2400

(“[W]hen we use that term, we mean it

—genuinely ambiguous, even after a court

*1125 has resorted to all the standard tools

of interpretation.”). When a rule's application

is uncertain, courts retain the responsibility to

interpret and apply it, as in every other statutory

interpretation case.

Here, the words “large capacity magazine,”

when used in reference to firearms, are not

“genuinely susceptible to multiple reasonable

meanings.” See id. at 581, 139 S.Ct. 2400.

We all agree that the meaning of the term is

a firearm magazine that is “[g]reat in size,

amount, or degree; big; wide; full.” Large,

Oxford English Dictionary. There is therefore

no dispute regarding “the meaning of the words

used.” See Seminole Rock, 325 U.S. at 414,

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

65 S.Ct. 1215. The question, rather, is whether

the unambiguous language in § 2K2.1 applies

to the firearm that Trumbull possessed at the

time of his arrest. That makes the term “large

capacity magazine” vague or imprecise, but not

ambiguous. And Kisor requires judges—not

agencies—to interpret and apply such vague

but unambiguous rules. See Kisor, 588 U.S. at

580–81, 139 S.Ct. 2400.

In equating vagueness to ambiguity, the

majority relies on Entergy Corp. v. Riverkeeper,

Inc., 556 U.S. 208, 129 S.Ct. 1498, 173

L.Ed.2d 369 (2009), where the Court applied

the now-defunct Chevron doctrine. Maj. Op. at

1118-19. There, the Court held that the Clean

Water Act's mandate that the Environmental

Protection Agency set standards that reflected

“the best technology available for minimizing

adverse environmental impact” did not

“unambiguously preclude” the use of costbenefit analysis. Id. at 218–20, 129 S.Ct. 1498.

The majority reasons that the Court found the

term “minimize” to be ambiguous because it

“admits of degree.” Id. at 219, 129 S.Ct. 1498.

For two reasons, the majority is mistaken.

First, the Court in Entergy never determined

that the term minimize was ambiguous. To

the contrary, the Court—applying traditional

tools of interpretation—held that the word

“minimize” in the Clean Water Act

unambiguously precluded the respondents’

assertion that the term “best technology”

included only those technologies that

achieved “the greatest possible reduction in

environmental harm.” Id. at 219, 129 S.Ct.

1498. The Court considered the use of the

term minimize “elsewhere in the Clean Water

Act,” and concluded that, “[i]f respondents’

definition of the term ‘minimize’ is correct,”

other portions of the Clean Water Act would

be “superfluous.” Id. Of course, the Surplusage

Canon is one of the “ ‘traditional tools’

of construction” that we must apply before

finding a term genuinely ambiguous. See

Kisor, 588 U.S. at 575, 139 S.Ct. 2400

(quoting Chevron, 467 U.S. at 843 n.9,

104 S.Ct. 2778); see also Scalia & Garner,

Reading Law 174 (explaining that, under the

Surplusage Canon, a word should not be

given an interpretation that causes another

provision “to have no consequence”). Thus,

and with respect, the premise underlying the

majority's understanding of ambiguity rests on

a misreading of Entergy.

Second, in the wake of Loper Bright, the

Chevron analysis in Entergy is no longer

valid. See Loper Bright, 144 S. Ct. at 2273

(“Chevron is overruled.”). To be sure, the Court

in Loper Bright did not “call into question prior

cases that relied on the Chevron framework.”

Id. But the Court was clear: this limitation

applied only to prior holdings that “specific

agency actions are lawful,” pursuant to the

doctrine of “statutory stare decisis.” Id. (first

emphasis added). The Court acknowledged its

“change in interpretive methodology” meant

that these precedents were “wrongly decided,”

but explained that mere error is “not enough

to justify overruling a statutory precedent.”

Id. (quoting *1126 Halliburton Co. v. Erica

P. John Fund, Inc., 573 U.S. 258, 266, 134

S.Ct. 2398, 189 L.Ed.2d 339 (2014)). For

future cases, however, the Court stated: “Courts

must exercise their independent judgment in

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

deciding whether an agency has acted within its

statutory authority, as the APA requires.” Id.;

see also id. at 2271 (“[T]he basic nature and

meaning of a statute does not change when an

agency happens to be involved.... The statute

still has a best meaning, necessarily discernible

by a court deploying its full interpretive

toolkit.”). The majority's understanding of

ambiguity, then, depends exclusively on a case

with no precedential value.

In sum, the majority is incorrect that a term

is ambiguous under Kisor merely because it

is vague or “impenetrable on first read.” See

Kisor, 588 U.S. at 575, 139 S.Ct. 2400. Except

for those cases in which the words used are

“genuinely susceptible to multiple reasonable

meanings,” it remains our duty to apply such

vague and indefinite regulations to the facts

before us, as we do all the time. See id. at

581, 139 S.Ct. 2400. And here, the term “large

capacity magazine” in § 2K2.1 has only one

plausible meaning. Respectfully, the majority's

choice to disregard our interpretive duties and

assign them to the Sentencing Commission

expands Kisor far beyond its intended scope.

The majority's expansion of Kisor deference is

particularly troubling considering the Supreme

Court's recent decision in Loper Bright.

Although I acknowledge that Loper Bright

did not expressly overrule Kisor, the majority

is mistaken to brush Loper Bright aside and

treat it as irrelevant to the interpretation of

regulatory language. Maj. Op. at 1118 n.2.

The Court in Loper Bright made clear that

courts cannot merely “throw up their hands,”

as the majority does today, when a term is

difficult to apply. See Loper Bright, 144 S. Ct. at

2266. Indeed, Loper Bright questioned whether

ambiguity can even serve as a valid benchmark

when it comes to a court's interpretive role. As

the Court put it:

Ambiguity is a term that

may have different meanings

for different judges. One

judge might see ambiguity

everywhere; another might

never encounter it. A rule

of law that is so wholly

in the eye of the beholder

invites different results in

like cases and is therefore

arbitrary in practice. Such

impressionistic

and

malleable concept cannot

stand as an every-day test

for allocating interpretive

authority between courts and

agencies.

Id. at 2270–71 (citations and internal quotations

omitted).

The Court in Loper Bright, moreover, reasoned

that “statutes, no matter how impenetrable, do

—in fact, must—have a single, best meaning.”

Id. at 2266. It also explained that it “makes no

sense to speak of a ‘permissible’ interpretation

that is not the one the court, after applying

all relevant interpretive tools, concludes is

best,” because “if it is not the best, it

is not permissible.” Id. Of course, those

“interpretive tools” are the same tools the

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

Court told us to exhaust in in Kisor before

finding a regulation ambiguous. Compare id.

(noting the “very point of the traditional

tools of statutory construction—the tools

courts use every day—is to resolve statutory

ambiguities”), with Kisor, 588 U.S. at 575,

139 S.Ct. 2400 (explaining a court “must

exhaust all the traditional tools of construction”

“before concluding that a rule is genuinely

ambiguous” (internal quotations omitted)).

Loper Bright, then, reiterated the searching

inquiry that we must undertake before deferring

to an agency under Kisor.

After the Court's landmark decision in Loper

Bright, we should hesitate to expand *1127

Kisor deference beyond those cases in which

“the meaning of the words used is in doubt.”

See Seminole Rock, 325 U.S. at 414, 65 S.Ct.

1215; Kisor, 588 U.S. at 575, 581, 139 S.Ct.

2400. In all other cases, such as this one, the

regulation “just means what it means—and the

court must give it effect, as the court would any

law.” Kisor, 588 U.S. at 575, 139 S.Ct. 2400.

III.

Because § 2K2.1 is unambiguous, I

would independently interpret the term

“semiautomatic firearm that is capable of

accepting a large capacity magazine,” and

determine whether the Glock 17 that Trumbull

possessed at the time of his offense qualifies.

See U.S.S.G.§ 2K2.1(a)(4)(B). This analysis

requires the use of the “ordinary tools of

statutory interpretation,” Martinez, 870 F.3d at

1166, which “begin[s] and end[s] with the text

and structure of the Guidelines,” United States

v. Joey, 845 F.3d 1291, 1297 n.8 (9th Cir. 2017)

(internal quotations omitted). We may also

consider “the context of the[ ] words” in light of

the backdrop at the time the rule was enacted.

See United States v. Hansen, 599 U.S. 762,

775, 143 S.Ct. 1932, 216 L.Ed.2d 692 (2023);

Scalia & Garner, Reading Law 167 (“Context

is a primary determinant of meaning.”). Here,

the analysis of the text and structure, along with

the context in which § 2K2.1 was promulgated,

compels one conclusion: Trumbull's Glock 17,

which had the capacity to accept 17 rounds,

unambiguously qualifies as a “semiautomatic

firearm that is capable of accepting a large

capacity magazine.” See U.S.S.G. § 2K2.1(a)

(4)(B).

First, the current version of § 2K2.1 “was

expressly modeled on its ... predecessor” and,

therefore, brought “the old soil with it.” See

Hall v. Hall, 584 U.S. 59, 72–73, 138 S.Ct.

1118, 200 L.Ed.2d 399 (2018) (quoting Felix

Frankfurter, Some Reflections on the Reading of

Statutes, 47 Colum. L. Rev. 527, 537 (1947)).

As I have explained, § 2K2.1 previously

cross-referenced the Violent Crime Control

Law Enforcement Act of 1994. That Act had

prohibited the possession of a “large capacity

ammunition feeding device,” defined as a

“magazine” that has a “capacity of ... more than

10 rounds of ammunition.” 18 U.S.C. § 921(a)

(31). Prior to the 2006 amendments, moreover,

U.S.S.G. § 5K2.17 provided for a sentencing

enhancement when the offender possessed a

“high-capacity semiautomatic firearm,” which

was similarly defined as a firearm that has

a “magazine capacity of more than ten

cartridges.”

After the Act expired in 2004, the Commission

amended § 2K2.1 and § 5K2.17 because

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

Congress had allowed the cross-referenced Act

to expire. In its “Reason for Amendment,” the

Commission explained that it had “received

information regarding inconsistent application

as to whether the enhanced base offense

levels apply ... in light of the ban's

expiration.” U.S.S.G. § 2K2.1, Amend. 691.

The Commission therefore opted to “replace[ ]

the reference [to the Act] with the term,

‘a semiautomatic firearm that is capable of

accepting a large capacity magazine.’ ” Id.

When this context is considered, the 2006

amendment—which merely replaced the crossreferences to the Act and did not include any

new definitions—did not make any substantive

changes. See Gordillo, 920 F.3d at 1298

(explaining that the “2006 amendments [to

§ 2K2.1] were intended to clarify that the

enhanced base offense levels continued to

apply”); cf. Hansen, 599 U.S. at 775–78, 143

S.Ct. 1932 (considering context and concluding

that, when Congress removed words in a

statute but left intact similar words, the

change was “best understood as a continuation

of the past, not a sharp break from it”).

Instead, the term “large capacity magazine” is

“obviously *1128 transplanted from another

legal source”—the Act and the prior version

of § 5K2.17—and, therefore, “brings the old

soil with it.” See Taggart v. Lorenzen, 587

U.S. 554, 560, 139 S.Ct. 1795, 204 L.Ed.2d

129 (2019) (quoting Hall, 584 U.S. at 73,

138 S.Ct. 1118); Scalia & Garner, Reading

Law 322 (explaining that if a term has been

given a “uniform interpretation by ... the

responsible agency, a later version of that

act perpetuating the wording is presumed

to carry forward that interpretation”); id. at

323 (“[W]hen a statute uses the very same

terminology as an earlier statute—especially

in the very same field ...—it is reasonable to

believe that the terminology bears a consistent

meaning”); Erlenbaugh v. United States, 409

U.S. 239, 244, 93 S.Ct. 477, 34 L.Ed.2d

446 (1972) (“[W]henever Congress passes a

new statute, it acts aware of all previous

statutes on the same subject.”). Under this

“longstanding interpretive principle,” the preexisting definition was merely incorporated

into § 2K2.1. See Taggart, 587 U.S.

at 560, 139 S.Ct. 1795. And with that

understanding, Trumbull's Glock 17 qualifies

as a “semiautomatic firearm that is capable

of accepting a large capacity magazine,” as

that term was understood when § 2K2.1 was

amended, because it could accept more than 10

rounds of ammunition. 2 See 18 U.S.C. § 922(a)

(31) (repealed); U.S.S.G. § 5K2.17 (amended).

Second, there is overwhelming evidence that

the common understanding of the term “large

capacity magazine” encompasses magazines

that can accept 17 rounds of ammunition.

As the majority recognizes, at least 12

states restrict the possession of large capacity

magazines. Maj. Op. at 1119. Eight of those

states define the term as a magazine that

has the capacity to accept more than 10

rounds of ammunition. See Cal. Penal Code §

16740; Conn. Gen. Stat. Ann. § 53-202w(a)

(1); Haw. Rev. Stat. Ann. § 134-8; Mass. Gen.

Laws Ann. ch. 140, § 121; N.J. Stat. Ann. §

2C:39-1; N.Y. Penal Law § 265.00; 11 R.I. Gen.

Laws § 11-47.1-3; Wash. Rev. Code Ann. §

9.41.010(25). And 3 define the term to include

those handgun magazines that can accept more

than 15 rounds of ammunition. See Colo. Rev.

Stat. § 18-12-301; 720 Ill. Comp. Stat. Ann.

5/24-1.10; Vt. Stat. Ann. tit. 13, § 4021. Under

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

any of these definitions, Trumbull's 17-capacity

magazine falls within the scope of the term

“large capacity magazine” as that term has been

long understood.

Considering the regulatory context, a

semiautomatic firearm that can accept 17

rounds of ammunition, such as the Glock

17 that Trumbull possessed at the time

of his offense, unambiguously constitutes a

“semiautomatic firearm that is capable of

accepting a large capacity magazine” for

purposes of the Sentencing Guidelines. See

U.S.S.G. § 2K2.1(a)(4)(B). Accordingly, the

district court did not err when it enhanced

Trumbull's base offense level pursuant to §

2K2.1(a)(4)(B).

in Application Note 2 because the language

of § 2K2.1 is not “genuinely ambiguous.”

See Kisor, 588 U.S. at 573–75, 139 S.Ct.

2400. Nonetheless, the Glock 17 that Trumbull

possessed at the time of his offense falls

unambiguously within the meaning of the term

“semiautomatic firearm *1129 that is capable

of accepting a large capacity magazine” as

that term was understood when § 2K2.1 was

promulgated. U.S.S.G. § 2K2.1(a)(4)(B). The

district court, therefore, properly enhanced

Trumbull's base offense level for sentencing

purposes pursuant to § 2K2.1(a)(4)(B).

For the foregoing reasons, I concur only in the

judgment.

All Citations

***

In sum, the majority is mistaken to defer

to the Sentencing Commission's commentary

114 F.4th 1114, 2024 Daily Journal D.A.R.

8042

Footnotes

Specifically, Trumbull had two felony convictions for burglary, a felony conviction

for attempted burglary, and a felony conviction for issuing a bad check. He also

had misdemeanor convictions for theft, criminal trespass to a vehicle, conspiracy

to commit theft, driving under the influence, and criminal possession of drug

paraphernalia.

In the time between his arrest and indictment in this case, Trumbull was arrested

and charged in Montana state court with criminal possession of dangerous drugs (a

felony), criminal possession of drug paraphernalia (a misdemeanor), and probation

violations.

In Loper Bright Enterprises v. Raimondo, ––– U.S. ––––, 144 S. Ct. 2244, 219

L.Ed.2d 832 (2024), the Supreme Court overruled Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

(1984), which “required courts to defer to ‘permissible’ agency interpretations of the

statutes those agencies administer.” Loper Bright, 144 S. Ct. at 2254. The Supreme

Court did not call Kisor into question in Loper Bright (and in fact cited it, see id. at

2261), and as the concurrence acknowledges did not overrule it, so we continue

to apply it.

Cal. Penal Code § 32310, held unconstitutional by Duncan v. Bonta, 695 F. Supp.

3d 1206, 1213 (S.D. Cal. 2023); Colo. Rev. Stat. § 18-12-302; Conn. Gen. Stat. §

53-202x; Del. Code Ann. tit. 11, § 1469; Haw. Rev. Stat. § 134-8; 720 Ill. Comp.

Stat. 5/24-1.10; Mass. Gen. Laws ch. 140, § 131M; N.J. Stat. Ann. § 2C:39-3, held

preempted on other grounds in Fed. Law Enf't Officers Ass'n v. Att'y Gen. N.J., 93

F.4th 122, 124 (3d. Cir. 2024); N.Y. Penal Law § 265.37 (originally setting the floor at

seven rounds but now setting it at ten rounds per N.Y. Penal Law § 265.00); 11 R.I.

Gen. Laws § 11-47.1-3; Vt. Stat. Ann. tit. 13, § 4021; Wash. Rev. Code § 9.41.370.

Colo. Rev. Stat. § 18-12-301; 720 Ill. Comp. Stat. 5/24-1.10; Vt. Stat. Ann. tit. 13,

§ 4021.

Cal. Penal Code § 16740; Conn. Gen. Stat. § 53-202w(a)(1); Haw. Rev. Stat. §

134-8; Mass. Gen. Laws ch. 140, § 121; N.J. Stat. Ann. § 2C:39-1; N.Y. Penal Law

§ 265.00; 11 R.I. Gen. Laws § 11-47.1-2; Wash. Rev. Code § 9.41.010.

Del. Code Ann. tit. 11, § 1468 (more than seventeen rounds).

Indeed, while “[c]ourts and commentators tend to justify treating commentary as less

authoritative than the guidelines in part on the ground that ‘[u]nlike the Guidelines

themselves, ... commentary to the Guidelines never passes through the gauntlets

of congressional review or notice and comment[,]’ ... their premise is mistaken.”

United States v. Dupree, 57 F.4th 1269, 1280 (11th Cir. 2023) (en banc) (Pryor, C.J.,

concurring) (second and third alterations in original) (citation omitted). “Unlike most

agency interpretive rules, Guidelines commentary ordinarily goes through the same

notice-and-comment and congressional review procedures as substantive guideline

revisions,” so “the difference between the Guidelines and the commentary ordinarily

boils down to labels and formatting.” Id. at 1280–81 (Pryor, C.J., concurring).

See also U.S. Sent'g Comm'n, Rules of Practice & Procedure, § 4.3 (“[T]he

Commission will endeavor to provide, to the extent practicable, comparable

opportunities [to publication in the Federal Register and public hearing procedure,

as required by 28 U.S.C. § 994(x)], for public input on proposed ... commentary ....”);

id., § 4.1 (“[T]o the extent practicable, the Commission shall endeavor to include

amendments to ... commentary in any submission of guideline amendments to

Congress and put them into effect on the same November 1 date as any guideline

amendments issued in the same year.”); John S. Acton, The Future of Judicial

United States v. Trumbull, 114 F.4th 1114 (2024)

2024 Daily Journal D.A.R. 8042

Deference to the Commentary of the United States Sentencing Guidelines, 45

Harv. J.L. & Pub. Pol'y 349, 359 (2022) (“Lower courts have largely overlooked this

change in practice and often mischaracterize the procedure that amendments to the

commentary receive ....”).

In Robinson, for example, the Supreme Court reasoned that the statutory term

“employees” could have two plausible meanings: either (1) current employees only,

or (2) both former and current employees. Robinson, 519 U.S. at 341–45, 117 S.Ct.

843.

Although Application Note 2's definition of “large capacity magazine” is narrower

than the prior definitions—as it applies only to firearms that can accept more than

15 rounds of ammunition—we have held that “Guidelines commentary need not be

followed when it establishes a ‘narrowing’ construction not ‘found in the Guideline

text.’ ” United States v. Kirilyuk, 29 F.4th 1128, 1137 (9th Cir. 2022) (quoting United

States v. Lambert, 498 F.3d 963, 971 (9th Cir. 2007)).

End of Document

APPENDIX B

United States v. Trumbull, CA 23-912, Order Denying Petition for Rehearing or

Rehearing En Banc, (Dkt. 41.1) (9th Cir., December 17, 2024)

Case: 23-912, 12/17/2024, DktEntry: 41.1, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

DEC 17 2024

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DEREK STEVEN TRUMBULL,

No. 23-912

D.C. No.

9:22-cr-00052-DLC-1

District of Montana,

Missoula

ORDER

Defendant - Appellant.

Before: W. FLETCHER, BEA, and OWENS, Circuit Judges.

The panel has voted to deny the petition for panel rehearing. Judge Owens

voted to deny the petition for rehearing en banc, and Judges Fletcher and Bea so

recommend.

The full court has been advised of the suggestion for rehearing en banc, and

no judge has requested a vote on whether to rehear the matter en banc. Fed. R.

App. P. 40.

The petition for panel rehearing and the petition for rehearing en banc are

therefore DENIED.

APPENDIX C

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APPENDIX D

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

144 S.Ct. 2244, 219 L.Ed.2d 832, Fed. Sec. L. Rep. P 101,887...

144 S.Ct. 2244

Supreme Court of the United States.

LOPER BRIGHT

ENTERPRISES, et al., Petitioners

Gina RAIMONDO,

Secretary of Commerce, et al.

Relentless, Inc., et al., Petitioners

Department of Commerce, et al.

No. 22-451, No. 22-1219

Argued January 17, 2024

Decided June 28, 2024

Synopsis

Background: In first case, herring fishing

companies operating in the Atlantic

herring fishery brought action against

Secretary of Commerce and National

Marine Fisheries Service (NMFS), alleging

that Magnuson-Stevens Fishery Conservation

and Management Act (MSA) did not

authorize Service, in implementing statutory

amendment establishing industry-funded

monitoring programs for fishery management,

to promulgate final rule requiring Atlantic

herring fishery to fund costs for on-board

observers required by fishery management

plan. The United States District Court for the

District of Columbia, Emmet G. Sullivan, J.,

544 F.Supp.3d 82, granted summary judgment

to Secretary and Service. Companies appealed.

The United States Court of Appeals for the

District of Columbia Circuit, Rogers, Circuit

Judge, 45 F.4th 359, affirmed. Certiorari was

granted. In second case, owners of fishing

vessels operating in the Atlantic herring fishery

brought action asserting similar claims. The

United States District Court for the District

of Rhode Island, William E. Smith, J., 561

F.Supp.3d 226, entered summary judgment

in government's favor. Owners appealed. The

United States Court of Appeals for the First

Circuit, Kayatta, Circuit Judge, 62 F.4th 621,

affirmed. Certiorari was granted in part.

The Supreme Court, Chief Justice Roberts,

held that courts need not, and under the

Administrative Procedure Act (APA) may not,

defer to an agency's interpretation of the

law simply because a statute is ambiguous;

overruling Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837,

104 S.Ct. 2778, 81 L.Ed.2d 694.

Vacated and remanded.

Justices Thomas, Alito, Gorsuch, Kavanaugh,

and Barrett joined.

Justice Thomas filed a concurring opinion.

Justice Gorsuch filed a concurring opinion.

Justice Kagan filed a dissenting opinion, in

which Justice Sotomayor joined and Justice

Jackson joined as applied to second case.

Justice Jackson took no part in the

consideration or decision of the first case.

Procedural Posture(s): Petition for Writ of

Certiorari; On Appeal; Motion for Summary

Judgment.

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144 S.Ct. 2244, 219 L.Ed.2d 832, Fed. Sec. L. Rep. P 101,887...

**2247 Syllabus *

*369 The Court granted certiorari in these

cases limited to the question whether Chevron

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

Council, Inc., 467 U.S. 837, 104 S.Ct.

2778, 81 L.Ed.2d 694, should be overruled

or clarified. Under the Chevron doctrine,

courts have sometimes been required to defer

to “permissible” agency interpretations of

the statutes those agencies administer—even

when a reviewing court reads the statute

differently. Id., at 843, 104 S.Ct. 2778. In

each case below, the reviewing courts applied

Chevron’s framework to resolve in favor of the

Government challenges by petitioners to a rule

promulgated by the National Marine Fisheries

Service pursuant to the Magnuson-Stevens Act,

16 U.S.C. § 1801 et seq., which incorporates the

Administrative Procedure Act (APA), 5 U.S.C.

§ 551 et seq.

Held: The Administrative Procedure Act

requires courts to exercise their independent

judgment in deciding whether an agency has

acted within its statutory authority, and courts

may not defer to an agency interpretation of

the law simply because a statute is ambiguous;

Chevron is overruled. Pp. 2257 – 2273.

(a) Article III of the Constitution assigns to the

Federal Judiciary the responsibility and power

to adjudicate “Cases” and “Controversies”—

concrete disputes with consequences for the

parties involved. The Framers appreciated that

the laws judges would necessarily apply in

resolving those disputes would not always

be clear, but envisioned that the final

“interpretation of the laws” would be “the

proper and peculiar province of the courts.”

The Federalist No. 78, p. 525 (A. Hamilton).

As Chief Justice Marshall declared in the

foundational decision of Marbury v. Madison,

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

the judicial department to say what the law

is.” 1 Cranch 137, 177, 2 L.Ed. 60. In the

decades following Marbury, when the meaning

of a statute was at issue, the judicial role was

to “interpret the act of Congress, in order to

ascertain the rights of the parties.” Decatur v.

Paulding, 14 Pet. 497, 515, 10 L.Ed. 559.

*370 The Court recognized from the

outset, though, that exercising independent

judgment often included according due

respect to Executive Branch interpretations

of federal statutes. Such respect was

thought especially warranted when an

Executive Branch interpretation was issued

roughly contemporaneously with enactment

of the statute and remained consistent over

time. The Court also gave “the most

respectful consideration” to Executive Branch

interpretations simply because “[t]he officers

concerned [were] usually able men, and

masters of the subject,” who may well have

drafted the laws at issue. United States

v. Moore, 95 U.S. 760, 763, 24 L.Ed.

588. “Respect,” though, was just that. The

views of the Executive Branch could inform

the judgment of the Judiciary, but did not

supersede it. “[I]n cases where [a court's] own

judgment ... differ[ed] from that of other high

functionaries,” the court was “not at liberty

to surrender, or to waive it.” United States v.

Dickson, 15 Pet. 141, 16, 10 L.Ed. 689.

During the “rapid expansion of the

administrative process” that took place during

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

144 S.Ct. 2244, 219 L.Ed.2d 832, Fed. Sec. L. Rep. P 101,887...

the New Deal era, United States v. Morton

Salt Co., 338 U.S. 632, 644, 70 S.Ct. 357,

94 L.Ed. 401, the Court often treated agency

determinations of fact as binding on the

courts, provided that there was “evidence

to support the findings,” St. Joseph Stock

Yards Co. v. United States, 298 U.S. 38,

51, 56 S.Ct. 720, 80 L.Ed. 1033. But the

Court did not extend similar deference to

agency resolutions of questions of law. “The

interpretation of the meaning of statutes, as

applied to justiciable controversies,” remained

“exclusively a judicial function.” United States

v. American Trucking Assns., Inc., 310 U.S.

534, 544, 60 S.Ct. 1059, 84 L.Ed. 1345.

The Court also continued to note that the

informed judgment of the Executive Branch

could be entitled to “great weight.” Id.,

at 549, 60 S.Ct. 1059. “The weight of

such a judgment in a particular case,” the

Court observed, would “depend upon the

thoroughness evident in its consideration, the

validity of its reasoning, its consistency with

earlier and later pronouncements, and all those

factors which give it power to persuade, if

lacking power to control.” Skidmore v. Swift &

Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed.

124.

Occasionally during this period, the Court

applied deferential review after concluding that

a particular statute empowered an agency to

decide how a broad statutory term applied

to specific facts found by the agency. See

Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326,

86 L.Ed. 301; NLRB v. Hearst Publications,

Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed.

1170. But such deferential review, which the

Court was far from consistent in applying,

was cabined to factbound determinations. And

the Court did not purport to refashion the

longstanding judicial approach to questions of

law. It instead proclaimed that “[u]ndoubtedly

questions of statutory interpretation ... are for

the courts to resolve, giving appropriate weight

to the judgment of those whose special duty

is to administer the questioned statute.” Id.,

at 130–131, 64 S.Ct. 851. *371 Nothing in

the New Deal era or before it thus resembled

the deference rule the Court would begin

applying decades later to all varieties of agency

interpretations of statutes under Chevron. Pp.

2257 – 2261.

(b) Congress in 1946 enacted the APA “as a

check upon administrators whose zeal might

otherwise have carried them to excesses

not contemplated in legislation creating their

offices.” Morton Salt, 338 U.S. at 644, 70

S.Ct. 357. The APA prescribes procedures

for agency action and delineates the basic

contours of judicial review of such action. And

it codifies for agency cases the unremarkable,

yet elemental proposition reflected by judicial

practice dating back to Marbury: that courts

decide legal questions by applying their own

judgment. As relevant here, the APA specifies

that courts, not agencies, will decide “all

relevant questions of law” arising on review

of agency action, 5 U.S.C. § 706 (emphasis

added)—even those involving ambiguous

laws. It prescribes no deferential standard

for courts to employ in answering those

legal questions, despite mandating deferential

judicial review of agency policymaking and

factfinding. See §§ 706(2)(A), (E). And by

directing courts to “interpret constitutional and

statutory provisions” without differentiating

between the two, § 706, it makes clear that

agency interpretations of statutes—like agency

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144 S.Ct. 2244, 219 L.Ed.2d 832, Fed. Sec. L. Rep. P 101,887...

courts reviewing agency action cannot be

squared with the APA. Pp. 2264 – 2270.

case was whether an Environmental Protection

Agency *372 (EPA) regulation was consistent

with the term “stationary source” as used in

the Clean Air Act. 467 U.S. at 840, 104

S.Ct. 2778. To answer that question, the Court

articulated and employed a now familiar twostep approach broadly applicable to review of

agency action. The first step was to discern

“whether Congress ha[d] directly spoken to

the precise question at issue.” Id., at 842, 104

S.Ct. 2778. The Court explained that “[i]f the

intent of Congress is clear, that is the end of

the matter,” ibid., and courts were therefore

to “reject administrative constructions which

are contrary to clear congressional intent,”

id., at 843, n. 9, 104 S.Ct. 2778. But in

a case in which “the statute [was] silent or

ambiguous with respect to the specific issue”

at hand, a reviewing court could not “simply

impose its own construction on the statute,

as would be necessary in the absence of

an administrative interpretation.” Id., at 843,

104 S.Ct. 2778 (footnote omitted). Instead, at

Chevron’s second step, a court had to defer

to the agency if it had offered “a permissible

construction of the statute,” ibid., even if not

“the reading the court would have reached if

the question initially had arisen in a judicial

proceeding,” ibid., n. 11. Employing this new

test, the Court concluded that Congress had

not addressed the question at issue with the

necessary “level of specificity” and that EPA's

interpretation was “entitled to deference.” Id.,

at 865, 104 S.Ct. 2778.

(1) Chevron, decided in 1984 by a bare

quorum of six Justices, triggered a marked

departure from the traditional judicial approach

of independently examining each statute to

determine its meaning. The question in the

Although the Court did not at first treat Chevron

as the watershed decision it was fated to

become, the Court and the courts of appeals

were soon routinely invoking its framework

as the governing standard in cases involving

interpretations of the Constitution—are not

entitled to deference. The APA's history and the

contemporaneous views of various respected

commentators underscore the plain meaning of

its text.

Courts exercising independent judgment

in determining the meaning of statutory

provisions, consistent with the APA, may

—as they have from the start—seek aid

from the interpretations of those responsible

for implementing particular statutes. See

Skidmore, 323 U.S. at 140, 65 S.Ct. 161. And

when the best reading of a statute is that it

delegates discretionary authority to an agency,

the role of the reviewing court under the APA

is, as always, to independently interpret the

statute and effectuate the will of Congress

subject to constitutional limits. The court

fulfills that role by recognizing constitutional

delegations, fixing the boundaries of the

delegated authority, and ensuring the agency

has engaged in “ ‘reasoned decisionmaking’ ”

within those boundaries. Michigan v. EPA, 576

U.S. 743, 750, 135 S.Ct. 2699, 192 L.Ed.2d 674

(quoting Allentown Mack Sales & Service, Inc.

v. NLRB, 522 U.S. 359, 374, 118 S.Ct. 818, 139

L.Ed.2d 797). By doing so, a court upholds the

traditional conception of the judicial function

that the APA adopts. Pp. 2261 – 2264.

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

144 S.Ct. 2244, 219 L.Ed.2d 832, Fed. Sec. L. Rep. P 101,887...

statutory questions of agency authority. The

Court eventually decided that Chevron rested

on “a presumption that Congress, when

it left ambiguity in a statute meant for

implementation by an agency, understood that

the ambiguity would be resolved, first and

foremost, by the agency, and desired the agency

(rather than the courts) to possess whatever

degree of discretion the ambiguity allows.”

Smiley v. Citibank (South Dakota), N. A.,

517 U.S. 735, 740–741, 116 S.Ct. 1730, 135

L.Ed.2d 25. Pp. 2264 – 2265.

(2) Neither Chevron nor any subsequent

decision of the Court attempted to reconcile

its framework with the APA. Chevron defies

the command of the APA that “the reviewing

court”—not the agency whose action it reviews

—is to “decide all relevant questions of

law” and “interpret ... statutory provisions.”

§ 706 (emphasis added). It requires a court

to ignore, not follow, “the reading the court

would have reached” had it exercised its

independent judgment as required by the

APA. Chevron, 467 U.S. at 843, n. 11, 104

S.Ct. 2778. Chevron insists on more than

the “respect” historically given to Executive

Branch interpretations; it demands that courts

mechanically afford binding deference to

agency interpretations, including those that

have been inconsistent over time, see id., at

863, 104 S.Ct. 2778, and even when a preexisting judicial precedent holds that *373

an ambiguous statute means something else,

National Cable & Telecommunications Assn. v.

Brand X Internet Services, 545 U.S. 967, 982,

125 S.Ct. 2688, 162 L.Ed.2d 820. That regime

is the antithesis of the time honored approach

the APA prescribes.

Chevron cannot be reconciled with the

APA by presuming that statutory ambiguities

are implicit delegations to agencies. That

presumption does not approximate reality.

A statutory ambiguity does not necessarily

reflect a congressional intent that an

agency, as opposed to a court, resolve

the resulting interpretive question. Many

or perhaps most statutory ambiguities may

be unintentional. And when courts confront

statutory ambiguities in cases that do not

involve agency interpretations or delegations

of authority, they are not somehow relieved of

their obligation to independently interpret the

statutes. Instead of declaring a particular party's

reading “permissible” in such a case, courts use

every tool at their disposal to determine the best

reading of the statute and resolve the ambiguity.

But in an agency case as in any other, there

is a best reading all the same—“the reading

the court would have reached” if no agency

were involved. Chevron, 467 U.S. at 843, n. 11,

104 S.Ct. 2778. It therefore makes no sense to

speak of a “permissible” interpretation that is

not the one the court, after applying all relevant

interpretive tools, concludes is best.

Perhaps most fundamentally, Chevron’s

presumption is misguided because agencies

have no special competence in resolving

statutory ambiguities. Courts do. The Framers

anticipated that courts would often confront

statutory ambiguities and expected that courts

would resolve them by exercising independent

legal judgment. Chevron gravely erred in

concluding that the inquiry is fundamentally

different just because an administrative

interpretation is in play. The very point of the

traditional tools of statutory construction is to

resolve statutory ambiguities. That is no less

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144 S.Ct. 2244, 219 L.Ed.2d 832, Fed. Sec. L. Rep. P 101,887...

true when the ambiguity is about the scope of

an agency's own power—perhaps the occasion

on which abdication in favor of the agency is

least appropriate. Pp. 2265 – 2266.

(3) The Government responds that Congress

must generally intend for agencies to resolve

statutory ambiguities because agencies have

subject matter expertise regarding the statutes

they administer; because deferring to agencies

purportedly promotes the uniform construction

of federal law; and because resolving statutory

ambiguities can involve policymaking best

left to political actors, rather than courts.

See Brief for Respondents in No. 22–1219,

pp. 16–19. But none of these considerations

justifies Chevron’s sweeping presumption of

congressional intent.

As the Court recently noted, interpretive

issues arising in connection with a regulatory

scheme “may fall more naturally into a judge's

bailiwick” *374 than an agency's. Kisor v.

Wilkie, 588 U.S. 558, 578, 139 S.Ct. 2400,

204 L.Ed.2d 841. Under Chevron’s broad

rule of deference, though, ambiguities of all

stripes trigger deference, even in cases having

little to do with an agency's technical subject

matter expertise. And even when an ambiguity

happens to implicate a technical matter, it does

not follow that Congress has taken the power

to authoritatively interpret the statute from the

courts and given it to the agency. Congress

expects courts to handle technical statutory

questions, and courts did so without issue in

agency cases before Chevron. After all, in an

agency case in particular, the reviewing court

will go about its task with the agency's “body

of experience and informed judgment,” among

other information, at its disposal. Skidmore,

323 U.S. at 140, 65 S.Ct. 161. An agency's

interpretation of a statute “cannot bind a court,”

but may be especially informative “to the extent

it rests on factual premises within [the agency's]

expertise.” Bureau of Alcohol, Tobacco and

Firearms v. FLRA, 464 U.S. 89, 98, n. 8, 104

S.Ct. 439, 78 L.Ed.2d 195. Delegating ultimate

interpretive authority to agencies is simply

not necessary to ensure that the resolution

of statutory ambiguities is well informed by

subject matter expertise.

Nor does a desire for the uniform construction

of federal law justify Chevron. It is unclear how

much the Chevron doctrine as a whole actually

promotes such uniformity, and in any event,

we see no reason to presume that Congress

prefers uniformity for uniformity's sake over

the correct interpretation of the laws it enacts.

Finally, the view that interpretation of

ambiguous statutory provisions amounts to

policymaking suited for political actors rather

than courts is especially mistaken because

it rests on a profound misconception of

the judicial role. Resolution of statutory

ambiguities involves legal interpretation,

and that task does not suddenly become

policymaking just because a court has an

“agency to fall back on.” Kisor, 588 U.S. at

575, 139 S.Ct. 2400. Courts interpret statutes,

no matter the context, based on the traditional

tools of statutory construction, not individual

policy preferences. To stay out of discretionary

policymaking left to the political branches,

judges need only fulfill their obligations under

the APA to independently identify and respect

such delegations of authority, police the outer

statutory boundaries of those delegations, and

ensure that agencies exercise their discretion

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

144 S.Ct. 2244, 219 L.Ed.2d 832, Fed. Sec. L. Rep. P 101,887...

consistent with the APA. By forcing courts to

instead pretend that ambiguities are necessarily

delegations, Chevron prevents judges from

judging. Pp. 2266 – 2268.

(4) Because Chevron’s justifying presumption

is, as Members of the Court have often

recognized, a fiction, the Court has spent

the better part of four decades imposing one

limitation on Chevron after another. Confronted

with the byzantine set of preconditions and

exceptions that has resulted, some courts

have simply bypassed Chevron or failed to

*375 heed its various steps and nuances.

The Court, for its part, has not deferred to

an agency interpretation under Chevron since

2016. But because Chevron remains on the

books, litigants must continue to wrestle with

it, and lower courts—bound by even the

Court's crumbling precedents—understandably

continue to apply it. At best, Chevron has been a

distraction from the question that matters: Does

the statute authorize the challenged agency

action? And at worst, it has required courts to

violate the APA by yielding to an agency the

express responsibility, vested in “the reviewing

court,” to “decide all relevant questions of law”

and “interpret ... statutory provisions.” § 706

(emphasis added). Pp. 2268 – 2270.

(d) Stare decisis, the doctrine governing

judicial adherence to precedent, does not

require the Court to persist in the Chevron

project. The stare decisis considerations most

relevant here—“the quality of [the precedent's]

reasoning, the workability of the rule it

established, ... and reliance on the decision,”

Knick v. Township of Scott, 588 U.S. 180,

203, 139 S.Ct. 2162, 204 L.Ed.2d 558

(quoting Janus v. State, County, and Municipal

Employees, 585 U.S. 878, 917, 138 S.Ct. 2448,

201 L.Ed.2d 924)—all weigh in favor of letting

Chevron go.

Chevron has proved to be fundamentally

misguided. It reshaped judicial review of

agency action without grappling with the APA,

the statute that lays out how such review works.

And its flaws were apparent from the start,

prompting the Court to revise its foundations

and continually limit its application.

Experience has also shown that Chevron

is unworkable. The defining feature of its

framework is the identification of statutory

ambiguity, but the concept of ambiguity has

always evaded meaningful definition. Such an

impressionistic and malleable concept “cannot

stand as an every-day test for allocating”

interpretive authority between courts and

agencies. Swift & Co. v. Wickham, 382 U.S.

111, 125, 86 S.Ct. 258, 15 L.Ed.2d 194.

The Court has also been forced to clarify

the doctrine again and again, only adding

to Chevron’s unworkability, and the doctrine

continues to spawn difficult threshold questions

that promise to further complicate the inquiry

should Chevron be retained. And its continuing

import is far from clear, as courts have often

declined to engage with the doctrine, saying it

makes no difference.

Nor has Chevron fostered meaningful reliance.

Given the Court's constant tinkering with

and eventual turn away from Chevron, it is

hard to see how anyone could reasonably

expect a court to rely on Chevron in any

particular case or expect it to produce

readily foreseeable outcomes. And rather

than safeguarding reliance interests, Chevron

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affirmatively destroys them by allowing

agencies to change course even when Congress

has given them no power to do so.

*376 The only way to “ensure that the

law will not merely change erratically, but

will develop in a principled and intelligible

fashion,” Vasquez v. Hillery, 474 U.S. 254,

265, 106 S.Ct. 617, 88 L.Ed.2d 598, is for the

Court to leave Chevron behind. By overruling

Chevron, though, the Court does not call into

question prior cases that relied on the Chevron

framework. The holdings of those cases that

specific agency actions are lawful—including

the Clean Air Act holding of Chevron itself—

are still subject to statutory stare decisis despite

the Court's change in interpretive methodology.

See CBOCS West, Inc. v. Humphries, 553 U.S.

442, 457, 128 S.Ct. 1951, 170 L.Ed.2d 864.

Mere reliance on Chevron cannot constitute a

“ ‘special justification’ ” for overruling such

a holding. Halliburton Co. v. Erica P. John

Fund, Inc., 573 U.S. 258, 266, 134 S.Ct. 2398,

189 L.Ed.2d 339 (quoting Dickerson v. United

States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147

L.Ed.2d 405). Pp. 2270 – 2273.

No. 22–451, 45 F. 4th 359 & No. 22–1219, 62

F. 4th 621, vacated and remanded.

ROBERTS, C. J., delivered the opinion of

the Court, in which THOMAS, ALITO,

GORSUCH, KAVANAUGH, and BARRETT,

JJ., joined. THOMAS, J., and GORSUCH, J.,

filed concurring opinions. KAGAN, J., filed a

dissenting opinion, in which SOTOMAYOR,

J., joined, and in which JACKSON, J., joined as

it applies to No. 22–1219. JACKSON, J., took

no part in the consideration or decision of the

case in No. 22–451.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

CIRCUIT

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Attorneys and Law Firms

Roman Martinez, for Petitioners in No. 22–

1219.

Elizabeth B. Prelogar, Solicitor General, for the

Respondents in No. 22–1219 and No. 22–451.

Paul D. Clement for Petitioners in No. 22–451.

Ryan P. Mulvey, Eric R. Bolinder, R. James

Valvo, III, Cause of Action Institute, Arlington,

VA, Paul D. Clement, Counsel of Record,

Andrew C. Lawrence, Chadwick J. Harper,

Clement & Murphy, PLLC, Alexandria, VA, for

Petitioners in No. 22–451.

Elizabeth B. Prelogar, Solicitor General,

Counsel of Record, Todd Kim, Assistant

Attorney General, Edwin S. Kneedler,

Deputy Solicitor General, Matthew Guarnieri,

Assistant to the Solicitor General, Rachel

Heron, Dina B. Mishra, Daniel Halainen,

Attorneys, Department of Justice, Washington,

DC, Respondents in No. 22–1219 and No. 22–

451.

John J. Vecchione, Counsel of Record, Mark

S. Chenoweth, Kara M. Rollins, Philip

Hamburger, New Civil Liberties Alliance,

Washington, DC, Roman Martinez, Charles

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S. Dameron, Michael Clemente, William J.

Seidleck, Alexander G. Siemers, Jacob P.

Shapiro, Latham & Watkins LLP, Washington,

DC, for Petitioners in No. 22–1219.

Opinion

CHIEF JUSTICE ROBERTS delivered the

opinion of the Court.

*377 **2254 Since our decision in Chevron

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

Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81

L.Ed.2d 694 (1984), we have *378 sometimes

required courts to defer to “permissible”

agency interpretations of the statutes those

agencies administer—even when a reviewing

court reads the statute differently. In these cases

we consider whether that doctrine should be

overruled.

*379 I

Our Chevron doctrine requires courts to use

a two-step framework to interpret statutes

administered by federal agencies. After

determining that a case satisfies the various

preconditions we have set for Chevron to apply,

a reviewing court must first assess “whether

Congress has directly spoken to the precise

question at issue.” Id., at 842, 104 S.Ct. 2778.

If, and only if, congressional intent is “clear,”

that is the end of the inquiry. Ibid. But if the

court determines that “the statute is silent or

ambiguous with respect to the specific issue”

at hand, the court must, at Chevron’s second

step, defer to the agency's interpretation if it “is

based on a permissible *380 construction of

the statute.” Id., at 843, 104 S.Ct. 2778. The

reviewing courts in each of the cases before

us applied Chevron’s framework to resolve in

favor of the Government challenges to the same

agency rule.

Before 1976, unregulated foreign vessels

dominated fishing in the international waters

off the U. S. coast, which began just 12

nautical miles offshore. See, e.g., S. Rep.

No. 94–459, pp. 2–3 (1975). Recognizing

the resultant overfishing and the need for

sound management of fishery resources,

Congress enacted the Magnuson-Stevens

Fishery Conservation and Management Act

(MSA). See 90 Stat. 331 (codified as amended

at 16 U.S.C. § 1801 et seq.). The MSA

and subsequent amendments extended the

jurisdiction of the United States to 200

nautical miles beyond the U. S. territorial sea

and claimed “exclusive fishery management

authority over all fish” within that area, known

as the “exclusive economic zone.” § 1811(a);

see Presidential Proclamation No. 5030, 3

C.F.R. 22 (1983 Comp.); §§ 101, 102, 90

Stat. 336. The National Marine Fisheries

Service (NMFS) administers the MSA under a

delegation from the Secretary of Commerce.

The MSA established eight regional

fishery management councils composed of

representatives from the coastal States, fishery

stakeholders, and NMFS. See 16 U.S.C. §§

1852(a), (b). The councils develop fishery

management plans, which NMFS approves

and promulgates as final regulations. See §§

1852(h), 1854(a). In **2255 service of the

statute's fishery conservation and management

goals, see § 1851(a), the MSA requires that

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certain provisions—such as “a mechanism

for specifying annual catch limits ... at a

level such that overfishing does not occur,” §

1853(a)(15)—be included in these plans, see §

1853(a). The plans may also include additional

discretionary provisions. See § 1853(b). For

example, plans may “prohibit, limit, condition,

or require the use of *381 specified types and

quantities of fishing gear, fishing vessels, or

equipment,” § 1853(b)(4); “reserve a portion

of the allowable biological catch of the fishery

for use in scientific research,” § 1853(b)

(11); and “prescribe such other measures,

requirements, or conditions and restrictions as

are determined to be necessary and appropriate

for the conservation and management of the

fishery,” § 1853(b)(14).

Relevant here, a plan may also require that

“one or more observers be carried on board”

domestic vessels “for the purpose of collecting

data necessary for the conservation and

management of the fishery.” § 1853(b)(8). The

MSA specifies three groups that must cover

costs associated with observers: (1) foreign

fishing vessels operating within the exclusive

economic zone (which must carry observers),

see §§ 1821(h)(1)(A), (h)(4), (h)(6); (2) vessels

participating in certain limited access privilege

programs, which impose quotas permitting

fishermen to harvest only specific quantities

of a fishery's total allowable catch, see §§

1802(26), 1853a(c)(1)(H), (e)(2), 1854(d)(2);

and (3) vessels within the jurisdiction of the

North Pacific Council, where many of the

largest and most successful commercial fishing

enterprises in the Nation operate, see § 1862(a).

In the latter two cases, the MSA expressly

caps the relevant fees at two or three percent

of the value of fish harvested on the vessels.

See §§ 1854(d)(2)(B), 1862(b)(2)(E). And in

general, it authorizes the Secretary to impose

“sanctions” when “any payment required for

observer services provided to or contracted by

an owner or operator ... has not been paid.” §

1858(g)(1)(D).

The MSA does not contain similar terms

addressing whether Atlantic herring fishermen

may be required to bear costs associated

with any observers a plan may mandate.

And at one point, NMFS fully funded the

observer coverage the New England Fishery

Management Council required in its plan for

the Atlantic herring fishery. See 79 Fed. Reg.

8792 (2014). In 2013, however, the council

proposed amending its fishery management

plans to empower it to require *382 fishermen

to pay for observers if federal funding

became unavailable. Several years later, NMFS

promulgated a rule approving the amendment.

See 85 Fed. Reg. 7414 (2020).

With respect to the Atlantic herring fishery, the

Rule created an industry funded program that

aims to ensure observer coverage on 50 percent

of trips undertaken by vessels with certain

types of permits. Under that program, vessel

representatives must “declare into” a fishery

before beginning a trip by notifying NMFS of

the trip and announcing the species the vessel

intends to harvest. If NMFS determines that an

observer is required, but declines to assign a

Government-paid one, the vessel must contract

with and pay for a Government-certified thirdparty observer. NMFS estimated that the cost of

such an observer would be up to $710 per day,

reducing annual returns to the vessel owner by

up to 20 percent. See id., at 7417–7418.

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Petitioners Loper Bright Enterprises, Inc., H&L

Axelsson, Inc., Lund Marr Trawlers LLC, and

Scombrus One LLC are family businesses that

operate in the **2256 Atlantic herring fishery.

In February 2020, they challenged the Rule

under the MSA, 16 U.S.C. § 1855(f), which

incorporates the Administrative Procedure Act

(APA), 5 U.S.C. § 551 et seq. In relevant part,

they argued that the MSA does not authorize

NMFS to mandate that they pay for observers

required by a fishery management plan. The

District Court granted summary judgment to

the Government. It concluded that the MSA

authorized the Rule, but noted that even if these

petitioners’ “arguments were enough to raise an

ambiguity in the statutory text,” deference to

the agency's interpretation would be warranted

under Chevron. 544 F.Supp.3d 82, 107 (D.C.C

2021); see id., at 103–107.

A divided panel of the D. C. Circuit

affirmed. See 45 F.4th 359 (2022). The

majority addressed various provisions of the

MSA and concluded that it was not “wholly

unambiguous” *383 whether NMFS may

require Atlantic herring fishermen to pay for

observers. Id., at 366. Because there remained

“some question” as to Congress's intent, id., at

369, the court proceeded to Chevron’s second

step and deferred to the agency's interpretation

as a “reasonable” construction of the MSA,

45 F.4th at 370. In dissent, Judge Walker

concluded that Congress's silence on industry

funded observers for the Atlantic herring

fishery—coupled with the express provision

for such observers in other fisheries and

on foreign vessels—unambiguously indicated

that NMFS lacked the authority to “require

[Atlantic herring] fishermen to pay the wages

of at-sea monitors.” Id., at 375.

Petitioners Relentless Inc., Huntress Inc., and

Seafreeze Fleet LLC own two vessels that

operate in the Atlantic herring fishery: the F/

V Relentless and the F/V Persistence. 1 These

vessels use small-mesh bottom-trawl gear and

can freeze fish at sea, so they can catch more

species of fish and take longer trips than other

vessels (about 10 to 14 days, as opposed to

the more typical 2 to 4). As a result, they

generally declare into multiple fisheries per trip

so they can catch whatever the ocean offers up.

If the vessels declare into the Atlantic herring

fishery for a particular trip, they must carry an

observer for that trip if NMFS selects the trip

for coverage, even if they end up harvesting

fewer herring than other vessels—or no herring

at all.

This set of petitioners, like those in the D. C.

Circuit case, filed a suit challenging the Rule as

unauthorized by the MSA. The District Court,

like the D. C. Circuit, deferred to NMFS's

contrary interpretation under Chevron and thus

granted summary judgment to the Government.

See 561 F.Supp.3d 226, 234–238 (D.R.I. 2021).

*384 The First Circuit affirmed. See 62 F.4th

621 (2023). It relied on a “default norm”

that regulated entities must bear compliance

costs, as well as the MSA's sanctions provision,

Section 1858(g)(1)(D). See id., at 629–631.

And it rejected petitioners’ argument that

the express statutory authorization of three

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industry funding programs demonstrated that

NMFS lacked the broad implicit authority

it asserted to impose such a program for

the Atlantic herring fishery. See id., at 631–

633. The court ultimately concluded that the

“[a]gency's interpretation of its authority to

require at-sea monitors who are paid for by

owners of regulated vessels does not ‘exceed[ ]

the bounds of the permissible.’ ” Id., at 633–

634 (quoting Barnhart v. Walton, 535 U.S.

212, 218, 122 S.Ct. 1265, 152 L.Ed.2d 330

(2002); alteration in original). In reaching that

conclusion, the First Circuit stated **2257 that

it was applying Chevron’s two-step framework.

62 F.4th at 628. But it did not explain which

aspects of its analysis were relevant to which

of Chevron’s two steps. Similarly, it declined

to decide whether the result was “a product of

Chevron step one or step two.” Id., at 634.

We granted certiorari in both cases, limited

to the question whether Chevron should be

overruled or clarified. See 601 U. S. ––––, 144

S.Ct. 325, 217 L.Ed.2d 154 (2023); 598 U. S.

––––, 144 S.Ct. 417, 217 L.Ed.2d 232 (2023). 2

Article III of the Constitution assigns to the

Federal Judiciary the responsibility and power

to adjudicate “Cases” and “Controversies”—

concrete disputes with consequences for the

parties involved. The Framers appreciated that

the laws judges would necessarily apply in

resolving those disputes *385 would not

always be clear. Cognizant of the limits of

human language and foresight, they anticipated

that “[a]ll new laws, though penned with the

greatest technical skill, and passed on the

fullest and most mature deliberation,” would be

“more or less obscure and equivocal, until their

meaning” was settled “by a series of particular

discussions and adjudications.” The Federalist

No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison).

The Framers also envisioned that the final

“interpretation of the laws” would be “the

proper and peculiar province of the courts.”

Id., No. 78, at 525 (A. Hamilton). Unlike the

political branches, the courts would by design

exercise “neither Force nor Will, but merely

judgment.” Id., at 523. To ensure the “steady,

upright and impartial administration of the

laws,” the Framers structured the Constitution

to allow judges to exercise that judgment

independent of influence from the political

branches. Id., at 522; see id., at 522–524; Stern

v. Marshall, 564 U.S. 462, 484, 131 S.Ct. 2594,

180 L.Ed.2d 475 (2011).

This Court embraced the Framers’

understanding of the judicial function early

on. In the foundational decision of Marbury

v. Madison, Chief Justice Marshall famously

declared that “[i]t is emphatically the province

and duty of the judicial department to say what

the law is.” 1 Cranch 137, 177, 2 L.Ed. 60

(1803). And in the following decades, the Court

understood “interpret[ing] the laws, in the last

resort,” to be a “solemn duty” of the Judiciary.

United States v. Dickson, 15 Pet. 141, 162,

10 L.Ed. 689 (1841) (Story, J., for the Court).

When the meaning of a statute was at issue,

the judicial role was to “interpret the act of

Congress, in order to ascertain the rights of the

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parties.” Decatur v. Paulding, 14 Pet. 497, 515,

10 L.Ed. 559 (1840).

The Court also recognized from the outset,

though, that exercising independent judgment

often included according due respect to

Executive Branch interpretations of federal

statutes. For example, in Edwards’ Lessee v.

Darby, 12 Wheat. 206, 6 L.Ed. 603 (1827),

the Court explained that “[i]n the construction

*386 of a doubtful and ambiguous law, the

contemporaneous construction of those who

were called upon to act under the law, and were

appointed to carry its provisions into effect, is

entitled to very great respect.” Id., at 210; see

also United States v. Vowell, 5 Cranch 368, 372,

3 L.Ed. 128 (1809) (Marshall, C. J., for the

Court).

**2258

Such respect was thought

especially warranted when an Executive

Branch interpretation was issued roughly

contemporaneously with enactment of the

statute and remained consistent over time.

See Dickson, 15 Pet. at 161; United States

v. Alabama Great Southern R. Co., 142 U.S.

615, 621, 12 S.Ct. 306, 35 L.Ed. 1134 (1892);

National Lead Co. v. United States, 252 U.S.

140, 145–146, 40 S.Ct. 237, 64 L.Ed. 496

(1920). That is because “the longstanding

‘practice of the government’ ”—like any

other interpretive aid—“can inform [a court's]

determination of ‘what the law is.’ ” NLRB v.

Noel Canning, 573 U.S. 513, 525, 134 S.Ct.

2550, 189 L.Ed.2d 538 (2014) (first quoting

McCulloch v. Maryland, 4 Wheat. 316, 401,

4 L.Ed. 579 (1819); then quoting Marbury,

1 Cranch at 177). The Court also gave “the

most respectful consideration” to Executive

Branch interpretations simply because “[t]he

officers concerned [were] usually able men,

and masters of the subject,” who were “[n]ot

unfrequently ... the draftsmen of the laws they

[were] afterwards called upon to interpret.”

United States v. Moore, 95 U.S. 760, 763, 24

L.Ed. 588 (1878); see also Jacobs v. Prichard,

223 U.S. 200, 214, 32 S.Ct. 289, 56 L.Ed. 405

(1912).

“Respect,” though, was just that. The views

of the Executive Branch could inform the

judgment of the Judiciary, but did not supersede

it. Whatever respect an Executive Branch

interpretation was due, a judge “certainly

would not be bound to adopt the construction

given by the head of a department.” Decatur,

14 Pet. at 515; see also Burnet v. Chicago

Portrait Co., 285 U.S. 1, 16, 52 S.Ct. 275, 76

L.Ed. 587 (1932). Otherwise, judicial judgment

would not be independent at all. As Justice

Story put it, “in cases where [a court's] own

judgment ... differ[ed] from that of other high

functionaries,” the court *387 was “not at

liberty to surrender, or to waive it.” Dickson, 15

Pet. at 162.

The New Deal ushered in a “rapid expansion

of the administrative process.” United States

v. Morton Salt Co., 338 U.S. 632, 644, 70

S.Ct. 357, 94 L.Ed. 401 (1950). But as new

agencies with new powers proliferated, the

Court continued to adhere to the traditional

understanding that questions of law were

for courts to decide, exercising independent

judgment.

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During this period, the Court often treated

agency determinations of fact as binding on the

courts, provided that there was “evidence to

support the findings.” St. Joseph Stock Yards

Co. v. United States, 298 U.S. 38, 51, 56

S.Ct. 720, 80 L.Ed. 1033 (1936). “When the

legislature itself acts within the broad field of

legislative discretion,” the Court reasoned, “its

determinations are conclusive.” Ibid. Congress

could therefore “appoint[ ] an agent to act

within that sphere of legislative authority”

and “endow the agent with power to make

findings of fact which are conclusive, provided

the requirements of due process which are

specially applicable to such an agency are met,

as in according a fair hearing and acting upon

evidence and not arbitrarily.” Ibid. (emphasis

added).

But the Court did not extend similar deference

to agency resolutions of questions of law.

It instead made clear, repeatedly, that “[t]he

interpretation of the meaning of statutes,

as applied to justiciable controversies,” was

“exclusively a judicial function.” United States

v. American Trucking Assns., Inc., 310 U.S.

534, 544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940);

see also Social Security Bd. v. Nierotko, 327

U.S. 358, 369, 66 S.Ct. 637, 90 L.Ed. 718

(1946); Medo Photo Supply Corp. v. NLRB,

321 U.S. 678, 681–682, n. 1, 64 S.Ct. 830,

88 L.Ed. 1007 (1944). The Court **2259

understood, in the words of Justice Brandeis,

that “[t]he supremacy of law demands that

there shall be opportunity to have some court

decide whether an erroneous rule of law was

applied.” *388 St. Joseph Stock Yards, 298

U.S. at 84, 56 S.Ct. 720 (concurring opinion).

It also continued to note, as it long had, that

the informed judgment of the Executive Branch

—especially in the form of an interpretation

issued contemporaneously with the enactment

of the statute—could be entitled to “great

weight.” American Trucking Assns., 310 U.S.

at 549, 60 S.Ct. 1059.

Perhaps most notably along those lines, in

Skidmore v. Swift & Co., 323 U.S. 134,

65 S.Ct. 161, 89 L.Ed. 124 (1944), the

Court explained that the “interpretations and

opinions” of the relevant agency, “made in

pursuance of official duty” and “based upon ...

specialized experience,” “constitute[d] a body

of experience and informed judgment to which

courts and litigants [could] properly resort

for guidance,” even on legal questions. Id.,

at 139–140, 65 S.Ct. 161. “The weight of

such a judgment in a particular case,” the

Court observed, would “depend upon the

thoroughness evident in its consideration, the

validity of its reasoning, its consistency with

earlier and later pronouncements, and all those

factors which give it power to persuade, if

lacking power to control.” Id., at 140, 65 S.Ct.

161.

On occasion, to be sure, the Court applied

deferential review upon concluding that a

particular statute empowered an agency to

decide how a broad statutory term applied

to specific facts found by the agency. For

example, in Gray v. Powell, 314 U.S. 402,

62 S.Ct. 326, 86 L.Ed. 301 (1941), the Court

deferred to an administrative conclusion that

a coal-burning railroad that had arrangements

with several coal mines was not a coal

“producer” under the Bituminous Coal Act

of 1937. Congress had “specifically” granted

the agency the authority to make that

determination. Id., at 411, 62 S.Ct. 326. The

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Court thus reasoned that “[w]here, as here, a

determination has been left to an administrative

body, this delegation will be respected and the

administrative conclusion left untouched” so

long as the agency's decision constituted “a

sensible exercise of judgment.” Id., at 412–

413, 62 S.Ct. 326. Similarly, in NLRB v.

Hearst Publications, Inc., 322 U.S. 111, 64

S.Ct. 851, 88 L.Ed. 1170 (1944), the Court

deferred to the determination of the National

Labor Relations Board that *389 newsboys

were “employee[s]” within the meaning of the

National Labor Relations Act. The Act had,

in the Court's judgment, “assigned primarily”

to the Board the task of marking a “definitive

limitation around the term ‘employee.’ ” Id.,

at 130, 64 S.Ct. 851. The Court accordingly

viewed its own role as “limited” to assessing

whether the Board's determination had a “

‘warrant in the record’ and a reasonable basis

in law.” Id., at 131, 64 S.Ct. 851.

Such deferential review, though, was cabined

to factbound determinations like those at issue

in Gray and Hearst. Neither Gray nor Hearst

purported to refashion the longstanding judicial

approach to questions of law. In Gray, after

deferring to the agency's determination that

a particular entity was not a “producer” of

coal, the Court went on to discern, based on

its own reading of the text, whether another

statutory term—“other disposal” of coal—

encompassed a transaction lacking a transfer

of title. See 314 U.S. at 416–417, 62 S.Ct.

326. The Court evidently perceived no basis

for deference to the agency with respect to that

pure legal question. And in Hearst, the Court

proclaimed that “[u]ndoubtedly questions of

statutory interpretation ... are for the courts

to resolve, giving appropriate weight to the

judgment **2260 of those whose special

duty is to administer the questioned statute.”

322 U.S. at 130–131, 64 S.Ct. 851. At

least with respect to questions it regarded as

involving “statutory interpretation,” the Court

thus did not disturb the traditional rule. It

merely thought that a different approach should

apply where application of a statutory term

was sufficiently intertwined with the agency's

factfinding.

In any event, the Court was far from consistent

in reviewing deferentially even such factbound

statutory determinations. Often the Court

simply interpreted and applied the statute

before it. See K. Davis, Administrative Law §

248, p. 893 (1951) (“The one statement that can

be made with confidence about applicability

of the doctrine of Gray v. Powell is that

sometimes the Supreme Court applies it and

sometimes *390 it does not.”); B. Schwartz,

Gray vs. Powell and the Scope of Review,

54 Mich. L. Rev. 1, 68 (1955) (noting an

“embarrassingly large number of Supreme

Court decisions that do not adhere to the

doctrine of Gray v. Powell”). In one illustrative

example, the Court rejected the U. S. Price

Administrator's determination that a particular

warehouse was a “public utility” entitled

to an exemption from the Administrator's

General Maximum Price Regulation. Despite

the striking resemblance of that administrative

determination to those that triggered deference

in Gray and Hearst, the Court declined

to “accept the Administrator's view in

deference to administrative construction.”

Davies Warehouse Co. v. Bowles, 321 U.S.

144, 156, 64 S.Ct. 474, 88 L.Ed. 635 (1944).

The Administrator's view, the Court explained,

had “hardly seasoned or broadened into a

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settled administrative practice,” and thus did

not “overweigh the considerations” the Court

had “set forth as to the proper construction of

the statute.” Ibid.

Nothing in the New Deal era or before it

thus resembled the deference rule the Court

would begin applying decades later to all

varieties of agency interpretations of statutes.

Instead, just five years after Gray and two after

Hearst, Congress codified the opposite rule:

the traditional understanding that courts must

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

§ 706. 3

*391 **2261 C

Congress in 1946 enacted the APA “as a

check upon administrators whose zeal might

otherwise have carried them to excesses

not contemplated in legislation creating their

offices.” Morton Salt, 338 U.S. at 644, 70

S.Ct. 357. It was the culmination of a

“comprehensive rethinking of the place of

administrative agencies in a regime of separate

and divided powers.” Bowen v. Michigan

Academy of Family Physicians, 476 U.S. 667,

670–671, 106 S.Ct. 2133, 90 L.Ed.2d 623

(1986).

In addition to prescribing procedures for

agency action, the APA delineates the basic

contours of judicial review of such action.

As relevant here, Section 706 directs that

“[t]o the extent necessary to decision and

when presented, the reviewing court shall

decide all relevant questions of law, interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the

terms of an agency action.” 5 U.S.C. § 706. It

further requires courts to “hold unlawful and set

aside agency action, findings, and conclusions

found to be ... not in accordance with law.” §

706(2)(A).

The APA thus codifies for agency cases

the unremarkable, yet elemental proposition

reflected by judicial practice dating *392

back to Marbury: that courts decide legal

questions by applying their own judgment. It

specifies that courts, not agencies, will decide

“all relevant questions of law” arising on

review of agency action, § 706 (emphasis

added)—even those involving ambiguous laws

—and set aside any such action inconsistent

with the law as they interpret it. And it

prescribes no deferential standard for courts

to employ in answering those legal questions.

That omission is telling, because Section 706

does mandate that judicial review of agency

policymaking and factfinding be deferential.

See § 706(2)(A) (agency action to be set

aside if “arbitrary, capricious, [or] an abuse of

discretion”); § 706(2)(E) (agency factfinding

in formal proceedings to be set aside if

“unsupported by substantial evidence”).

In a statute designed to “serve as the

fundamental charter of the administrative

state,” Kisor v. Wilkie, 588 U.S. 558, 580, 139

S.Ct. 2400, 204 L.Ed.2d 841 (2019) (plurality

opinion) (internal quotation marks omitted),

Congress surely would have articulated a

similarly deferential standard applicable to

questions of law had it intended to depart

from the settled pre-APA understanding that

deciding such questions was “exclusively a

judicial function,” American Trucking Assns.,

310 U.S. at 544, 60 S.Ct. 1059. But

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nothing in the APA hints at such a dramatic

departure. On the contrary, by directing

courts to “interpret constitutional and statutory

provisions” without differentiating between

the two, Section 706 makes clear that

agency interpretations of statutes—like agency

interpretations of the Constitution—are not

entitled to deference. Under the APA, it thus

“remains the responsibility of the court to

decide whether the law means what the agency

says.” Perez v. Mortgage Bankers Assn., 575

U.S. 92, 109, 135 S.Ct. 1199, 191 L.Ed.2d 186

(2015) (Scalia, J., concurring in judgment). 4

*393 **2262 The text of the APA means

what it says. And a look at its history if

anything only underscores that plain meaning.

According to both the House and Senate

Reports on the legislation, Section 706

“provide[d] that questions of law are for

courts rather than agencies to decide in the

last analysis.” H. R. Rep. No. 1980, 79th

Cong., 2d Sess., 44 (1946) (emphasis added);

accord, S. Rep. No. 752, 79th Cong., 1st

Sess., 28 (1945). Some of the legislation's

most prominent supporters articulated the

same view. See 92 Cong. Rec. 5654 (1946)

(statement of Rep. Walter); P. McCarran,

Improving “Administrative Justice”: Hearings

and Evidence; Scope of Judicial Review, 32 A.

B. A. J. 827, 831 (1946). Even the Department

of Justice—an agency with every incentive to

endorse a view of the APA favorable to the

Executive Branch—opined after its enactment

that Section 706 merely “restate[d] the present

law as to the scope of judicial review.” Dept.

of Justice, Attorney General's Manual on the

Administrative Procedure Act 108 (1947); see

also Kisor, 588 U.S. at 582, 139 S.Ct. 2400

(plurality opinion) (same). That “present law,”

as we have described, adhered to the traditional

conception of the judicial function. See supra,

at 2258 – 2261.

Various

respected

commentators

contemporaneously maintained that the APA

required reviewing courts to exercise

independent judgment on questions of law.

Professor John Dickinson, for example, read

the APA to “impose a clear mandate that all

[questions of law] shall be decided by the

reviewing Court itself, and in the exercise

of its own *394 independent judgment.”

Administrative Procedure Act: Scope and

Grounds of Broadened Judicial Review, 33 A.

B. A. J. 434, 516 (1947). Professor Bernard

Schwartz noted that § 706 “would seem ... to be

merely a legislative restatement of the familiar

review principle that questions of law are for

the reviewing court, at the same time leaving to

the courts the task of determining in each case

what are questions of law.” Mixed Questions of

Law and Fact and the Administrative Procedure

Act, 19 Ford. L. Rev. 73, 84–85 (1950).

And Professor Louis Jaffe, who had served

in several agencies at the advent of the New

Deal, thought that § 706 leaves it up to the

reviewing “court” to “decide as a ‘question

of law’ whether there is ‘discretion’ in the

premises”—that is, whether the statute at issue

delegates particular discretionary authority to

an agency. Judicial Control of Administrative

Action 570 (1965).

The APA, in short, incorporates the

traditional understanding of the judicial

function, under which courts must exercise

independent judgment in determining the

meaning of statutory provisions. In exercising

such judgment, though, courts may—as

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they have from the start—seek aid from

the interpretations of those responsible

for implementing particular statutes. Such

interpretations “constitute a body of experience

and informed judgment to which courts and

litigants may properly resort for guidance”

consistent with the APA. Skidmore, 323 U.S. at

140, 65 S.Ct. 161. And interpretations issued

contemporaneously with the statute at issue,

and which have remained consistent over time,

may be especially useful in determining the

statute's meaning. See ibid.; American Trucking

Assns., 310 U.S. at 549, 60 S.Ct. 1059.

**2263 In a case involving an agency, of

course, the statute's meaning may well be that

the agency is authorized to exercise a degree

of discretion. Congress has often enacted such

statutes. For example, some statutes “expressly

delegate[ ]” to an agency the authority to give

meaning to a particular statutory term. *395

Batterton v. Francis, 432 U.S. 416, 425, 97

S.Ct. 2399, 53 L.Ed.2d 448 (1977) (emphasis

deleted). 5 Others empower an agency to

prescribe rules to “fill up the details” of a

statutory scheme, Wayman v. Southard, 10

Wheat. 1, 43, 6 L.Ed. 253 (1825), or to regulate

subject to the limits imposed by a term or

phrase that “leaves agencies with flexibility,”

Michigan v. EPA, 576 U.S. 743, 752, 135

S.Ct. 2699, 192 L.Ed.2d 674 (2015), such as

“appropriate” or “reasonable.” 6

When the best reading of a statute is that it

delegates discretionary authority to an agency,

the role of the reviewing court under the APA

is, as always, to independently interpret the

statute and effectuate the will of Congress

subject to constitutional limits. The court

fulfills that role by recognizing constitutional

delegations, “fix[ing] the boundaries of [the]

delegated authority,” H. Monaghan, Marbury

and the Administrative State, 83 Colum. L.

Rev. 1, 27 (1983), and ensuring the agency

has engaged in “ ‘reasoned decisionmaking’ ”

within those boundaries, Michigan, 576 U.S. at

750, 135 S.Ct. 2699 (quoting Allentown Mack

Sales & Service, Inc. v. NLRB, 522 U.S. 359,

374, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998));

see also Motor Vehicle Mfrs. Assn. of United

States, Inc. v. State Farm Mut. Automobile Ins.

Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d

443 (1983). By doing so, a court upholds the

*396 traditional conception of the judicial

function that the APA adopts.

III

The deference that Chevron requires of courts

reviewing agency action cannot be squared

with the APA.

In the decades between the enactment of the

APA and this Court's decision in Chevron,

courts generally continued to review agency

interpretations of the statutes they administer

by independently examining each statute

to determine its meaning. Cf. T. Merrill,

Judicial Deference to Executive Precedent,

101 Yale L. J. 969, 972–975 (1992). As

an early proponent (and later critic) of

Chevron recounted, courts during this period

thus identified delegations of discretionary

authority to agencies on a “statute-by-statute

basis.” A. Scalia, **2264 Judicial Deference

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to Administrative Interpretations of Law, 1989

Duke L. J. 511, 516.

Chevron, decided in 1984 by a bare quorum

of six Justices, triggered a marked departure

from the traditional approach. The question

in the case was whether an EPA regulation

“allow[ing] States to treat all of the pollutionemitting devices within the same industrial

grouping as though they were encased within a

single ‘bubble’ ” was consistent with the term

“stationary source” as used in the Clean Air

Act. 467 U.S. at 840, 104 S.Ct. 2778. To answer

that question of statutory interpretation, the

Court articulated and employed a now familiar

two-step approach broadly applicable to review

of agency action.

The first step was to discern “whether Congress

ha[d] directly spoken to the precise question at

issue.” Id., at 842, 104 S.Ct. 2778. The Court

explained that “[i]f the intent of Congress is

clear, that is the end of the matter,” ibid., and

courts were therefore to “reject administrative

constructions which are contrary to clear

congressional intent,” id., at 843, n. 9, 104 S.Ct.

2778. To discern *397 such intent, the Court

noted, a reviewing court was to “employ[ ]

traditional tools of statutory construction.”

Ibid.

Without

mentioning

the

APA,

acknowledging any doctrinal shift, the Court

articulated a second step applicable when

“Congress ha[d] not directly addressed the

precise question at issue.” Id., at 843, 104

S.Ct. 2778. In such a case—that is, a case in

which “the statute [was] silent or ambiguous

with respect to the specific issue” at hand—a

reviewing court could not “simply impose its

own construction on the statute, as would be

necessary in the absence of an administrative

interpretation.” Ibid. (footnote omitted). A

court instead had to set aside the traditional

interpretive tools and defer to the agency if it

had offered “a permissible construction of the

statute,” ibid., even if not “the reading the court

would have reached if the question initially had

arisen in a judicial proceeding,” ibid., n. 11.

That directive was justified, according to the

Court, by the understanding that administering

statutes “requires the formulation of policy”

to fill statutory “gap[s]”; by the long judicial

tradition of according “considerable weight”

to Executive Branch interpretations; and by

a host of other considerations, including

the complexity of the regulatory scheme,

EPA's “detailed and reasoned” consideration,

the policy-laden nature of the judgment

supposedly required, and the agency's indirect

accountability to the people through the

President. Id., at 843, 844, and n. 14, 865, 104

S.Ct. 2778.

Employing this new test, the Court concluded

that Congress had not addressed the question at

issue with the necessary “level of specificity”

and that EPA's interpretation was “entitled to

deference.” Id., at 865, 104 S.Ct. 2778. It did

not matter why Congress, as the Court saw it,

had not squarely addressed the question, see

ibid., or that “the agency ha[d] from time to

time changed its interpretation,” id., at 863,

104 S.Ct. 2778. The latest EPA interpretation

was a permissible reading of the Clean Air

Act, so under the Court's new rule, that reading

controlled.

*398 Initially, Chevron “seemed destined to

obscurity.” T. Merrill, The Story of Chevron:

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The Making of an Accidental Landmark, 66

Admin. L. Rev. 253, 276 (2014). The Court did

not at first treat it as the watershed decision

it was fated to become; it was hardly cited in

cases involving statutory questions of agency

authority. See ibid. But within a few years,

both this Court and the courts of appeals were

routinely invoking its two-step framework as

the governing standard in such cases. See

id., at 276–277. As the Court did so, it

revisited the doctrine's justifications. **2265

Eventually, the Court decided that Chevron

rested on “a presumption that Congress, when

it left ambiguity in a statute meant for

implementation by an agency, understood that

the ambiguity would be resolved, first and

foremost, by the agency, and desired the agency

(rather than the courts) to possess whatever

degree of discretion the ambiguity allows.”

Smiley v. Citibank (South Dakota), N. A.,

517 U.S. 735, 740–741, 116 S.Ct. 1730, 135

L.Ed.2d 25 (1996); see also, e.g., Cuozzo Speed

Technologies, LLC v. Lee, 579 U.S. 261, 276–

277, 136 S.Ct. 2131, 195 L.Ed.2d 423 (2016);

Utility Air Regulatory Group v. EPA, 573 U.S.

302, 315, 134 S.Ct. 2427, 189 L.Ed.2d 372

(2014); National Cable & Telecommunications

Assn. v. Brand X Internet Services, 545 U.S.

967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820

(2005).

Neither Chevron nor any subsequent decision

of this Court attempted to reconcile its

framework with the APA. The “law of

deference” that this Court has built on the

foundation laid in Chevron has instead been

“[h]eedless of the original design” of the APA.

Perez, 575 U.S. at 109, 135 S.Ct. 1199 (Scalia,

J., concurring in judgment).

Chevron defies the command of the APA

that “the reviewing court”—not the agency

whose action it reviews—is to “decide all

relevant questions of law” and “interpret ...

statutory provisions.” § 706 (emphasis added).

It requires a court to ignore, not follow,

“the reading the court would have *399

reached” had it exercised its independent

judgment as required by the APA. Chevron,

467 U.S. at 843, n. 11, 104 S.Ct. 2778.

And although exercising independent judgment

is consistent with the “respect” historically

given to Executive Branch interpretations, see,

e.g., Edwards’ Lessee, 12 Wheat. at 210;

Skidmore, 323 U.S. at 140, 65 S.Ct. 161,

Chevron insists on much more. It demands that

courts mechanically afford binding deference

to agency interpretations, including those that

have been inconsistent over time. See 467

U.S. at 863, 104 S.Ct. 2778. Still worse,

it forces courts to do so even when a preexisting judicial precedent holds that the statute

means something else—unless the prior court

happened to also say that the statute is

“unambiguous.” Brand X, 545 U.S. at 982, 125

S.Ct. 2688. That regime is the antithesis of

the time honored approach the APA prescribes.

In fretting over the prospect of “allow[ing]” a

judicial interpretation of a statute “to override

an agency's” in a dispute before a court, ibid.,

Chevron turns the statutory scheme for judicial

review of agency action upside down.

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Chevron cannot be reconciled with the APA,

as the Government and the dissent contend,

by presuming that statutory ambiguities are

implicit delegations to agencies. See Brief

for Respondents in No. 22–1219, pp. 13,

37–38; post, at 2295 – 2302 (opinion of

KAGAN, J.). Presumptions have their place

in statutory interpretation, but only to the

extent that they approximate reality. Chevron’s

presumption does not, because “[a]n ambiguity

is simply not a delegation of law-interpreting

power. Chevron confuses the two.” C. Sunstein,

Interpreting Statutes in the Regulatory State,

103 Harv. L. Rev. 405, 445 (1989). As

Chevron itself noted, ambiguities may result

from an inability on the part of Congress to

squarely answer the question at hand, or from

a failure to even “consider the question” with

the requisite precision. 467 U.S. at 865, 104

S.Ct. 2778. In neither case does an ambiguity

necessarily reflect a congressional intent that

an agency, as opposed to a court, resolve

the resulting interpretive question. *400 And

many or perhaps most statutory ambiguities

may be **2266 unintentional. As the Framers

recognized, ambiguities will inevitably follow

from “the complexity of objects, ... the

imperfection of the human faculties,” and the

simple fact that “no language is so copious as

to supply words and phrases for every complex

idea.” The Federalist No. 37, at 236.

Courts, after all, routinely confront statutory

ambiguities in cases having nothing to do with

Chevron—cases that do not involve agency

interpretations or delegations of authority. Of

course, when faced with a statutory ambiguity

in such a case, the ambiguity is not a delegation

to anybody, and a court is not somehow relieved

of its obligation to independently interpret the

statute. Courts in that situation do not throw

up their hands because “Congress's instructions

have” supposedly “run out,” leaving a statutory

“gap.” Post, at 2294 (opinion of KAGAN, J.).

Courts instead understand that such statutes,

no matter how impenetrable, do—in fact, must

—have a single, best meaning. That is the

whole point of having written statutes; “every

statute's meaning is fixed at the time of

enactment.” Wisconsin Central Ltd. v. United

States, 585 U.S. 274, 284, 138 S.Ct. 2067,

201 L.Ed.2d 490 (2018) (emphasis deleted). So

instead of declaring a particular party's reading

“permissible” in such a case, courts use every

tool at their disposal to determine the best

reading of the statute and resolve the ambiguity.

In an agency case as in any other, though, even

if some judges might (or might not) consider

the statute ambiguous, there is a best reading

all the same—“the reading the court would

have reached” if no agency were involved.

Chevron, 467 U.S. at 843, n. 11, 104 S.Ct.

2778. It therefore makes no sense to speak of a

“permissible” interpretation that is not the one

the court, after applying all relevant interpretive

tools, concludes is best. In the business of

statutory interpretation, if it is not the best, it is

not permissible.

Perhaps most fundamentally, Chevron’s

presumption is misguided because agencies

have no special competence in *401 resolving

statutory ambiguities. Courts do. The Framers,

as noted, anticipated that courts would

often confront statutory ambiguities and

expected that courts would resolve them by

exercising independent legal judgment. And

even Chevron itself reaffirmed that “[t]he

judiciary is the final authority on issues

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of statutory construction” and recognized

that “in the absence of an administrative

interpretation,” it is “necessary” for a court to

“impose its own construction on the statute.”

Id., at 843, and n. 9, 104 S.Ct. 2778. Chevron

gravely erred, though, in concluding that the

inquiry is fundamentally different just because

an administrative interpretation is in play. The

very point of the traditional tools of statutory

construction—the tools courts use every day

—is to resolve statutory ambiguities. That is

no less true when the ambiguity is about the

scope of an agency's own power—perhaps the

occasion on which abdication in favor of the

agency is least appropriate.

The Government responds that Congress must

generally intend for agencies to resolve

statutory ambiguities because agencies have

subject matter expertise regarding the statutes

they administer; because deferring to agencies

purportedly promotes the uniform construction

of federal law; and because resolving statutory

ambiguities can involve policymaking best

left to political actors, rather than courts. See

Brief for Respondents in No. 22–1219, pp.

16–19. The dissent offers more of the same.

See post, at 2298 – 2301. But none of these

considerations justifies Chevron’s **2267

sweeping presumption of congressional intent.

Beginning with expertise, we recently noted

that interpretive issues arising in connection

with a regulatory scheme often “may fall more

naturally into a judge's bailiwick” than an

agency's. Kisor, 588 U.S. at 578, 139 S.Ct.

2400 (opinion of the Court). We thus observed

that “[w]hen the agency has no comparative

expertise in resolving a regulatory ambiguity,

Congress presumably would not grant it that

authority.” Ibid. *402 Chevron’s broad rule

of deference, though, demands that courts

presume just the opposite. Under that rule,

ambiguities of all stripes trigger deference.

Indeed, the Government and, seemingly, the

dissent continue to defend the proposition that

Chevron applies even in cases having little to

do with an agency's technical subject matter

expertise. See Brief for Respondents in No.

221219, p. 17; post, at 2298 – 2299.

But even when an ambiguity happens to

implicate a technical matter, it does not

follow that Congress has taken the power to

authoritatively interpret the statute from the

courts and given it to the agency. Congress

expects courts to handle technical statutory

questions. “[M]any statutory cases” call upon

“courts [to] interpret the mass of technical

detail that is the ordinary diet of the law,”

Egelhoff v. Egelhoff, 532 U.S. 141, 161, 121

S.Ct. 1322, 149 L.Ed.2d 264 (2001) (Breyer,

J., dissenting), and courts did so without issue

in agency cases before Chevron, see post,

at 2291 – 2292 (GORSUCH, J., concurring).

Courts, after all, do not decide such questions

blindly. The parties and amici in such cases

are steeped in the subject matter, and reviewing

courts have the benefit of their perspectives.

In an agency case in particular, the court will

go about its task with the agency's “body of

experience and informed judgment,” among

other information, at its disposal. Skidmore,

323 U.S. at 140, 65 S.Ct. 161. And although

an agency's interpretation of a statute “cannot

bind a court,” it may be especially informative

“to the extent it rests on factual premises within

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[the agency's] expertise.” Bureau of Alcohol,

Tobacco and Firearms v. FLRA, 464 U.S. 89,

98, n. 8, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983).

Such expertise has always been one of the

factors which may give an Executive Branch

interpretation particular “power to persuade, if

lacking power to control.” Skidmore, 323 U.S.

at 140, 65 S.Ct. 161; see, e.g., County of Maui v.

Hawaii Wildlife Fund, 590 U.S. 165, 180, 140

S.Ct. 1462, 206 L.Ed.2d 640 (2020); Moore, 95

U.S. at 763.

For those reasons, delegating ultimate

interpretive authority to agencies is simply

not necessary to ensure that the *403

resolution of statutory ambiguities is well

informed by subject matter expertise. The

better presumption is therefore that Congress

expects courts to do their ordinary job of

interpreting statutes, with due respect for

the views of the Executive Branch. And to

the extent that Congress and the Executive

Branch may disagree with how the courts have

performed that job in a particular case, they

are of course always free to act by revising the

statute.

Nor does a desire for the uniform construction

of federal law justify Chevron. Given

inconsistencies in how judges apply Chevron,

see infra, at 2270 – 2272, it is unclear how

much the doctrine as a whole (as opposed

to its highly deferential second step) actually

promotes such uniformity. In any event, there is

little value in imposing a uniform interpretation

of a statute if that interpretation is wrong.

We see no reason to presume that Congress

prefers uniformity for uniformity's sake over

the correct interpretation of the laws it enacts.

The view that interpretation of ambiguous

statutory provisions amounts to policymaking

**2268 suited for political actors rather than

courts is especially mistaken, for it rests

on a profound misconception of the judicial

role. It is reasonable to assume that Congress

intends to leave policymaking to political

actors. But resolution of statutory ambiguities

involves legal interpretation. That task does not

suddenly become policymaking just because a

court has an “agency to fall back on.” Kisor,

588 U.S. at 575, 139 S.Ct. 2400 (opinion of

the Court). Courts interpret statutes, no matter

the context, based on the traditional tools of

statutory construction, not individual policy

preferences. Indeed, the Framers crafted the

Constitution to ensure that federal judges could

exercise judgment free from the influence of

the political branches. See The Federalist, No.

78, at 522–525. They were to construe the law

with “[c]lear heads ... and honest hearts,” not

with an eye to policy preferences that had not

made it into *404 the statute. 1 Works of James

Wilson 363 (J. Andrews ed. 1896).

That is not to say that Congress cannot or

does not confer discretionary authority on

agencies. Congress may do so, subject to

constitutional limits, and it often has. But

to stay out of discretionary policymaking

left to the political branches, judges need

only fulfill their obligations under the APA

to independently identify and respect such

delegations of authority, police the outer

statutory boundaries of those delegations, and

ensure that agencies exercise their discretion

consistent with the APA. By forcing courts to

instead pretend that ambiguities are necessarily

delegations, Chevron does not prevent judges

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from making policy. It prevents them from

judging.

In truth, Chevron’s justifying presumption is, as

Members of this Court have often recognized,

a fiction. See Buffington v. McDonough, 598

U. S. ––––, ––––, 143 S.Ct. 14, 19–20,

214 L.Ed.2d 206 (2022) (GORSUCH, J.,

dissenting from denial of certiorari); Cuozzo,

579 U.S. at 286, 136 S.Ct. 2131 (THOMAS,

J., concurring); Scalia, 1989 Duke L. J., at

517; see also post, at 2301 – 2302 (opinion

of KAGAN, J.). So we have spent the better

part of four decades imposing one limitation on

Chevron after another, pruning its presumption

on the understanding that “where it is in doubt

that Congress actually intended to delegate

particular interpretive authority to an agency,

Chevron is ‘inapplicable.’ ” United States v.

Mead Corp., 533 U.S. 218, 230, 121 S.Ct. 2164,

150 L.Ed.2d 292 (2001) (quoting Christensen

v. Harris County, 529 U.S. 576, 597, 120

S.Ct. 1655, 146 L.Ed.2d 621 (2000) (Breyer,

J., dissenting)); see also Adams Fruit Co. v.

Barrett, 494 U.S. 638, 649, 110 S.Ct. 1384, 108

L.Ed.2d 585 (1990).

Consider the many refinements we have made

in an effort to match Chevron’s presumption

to reality. We have said that Chevron applies

only “when it appears that Congress delegated

authority to the agency generally to make

rules carrying the force of law, and that

the agency interpretation claiming deference

was promulgated in the exercise of that

*405 authority.” Mead, 533 U.S. at 226–

227, 121 S.Ct. 2164. In practice, that threshold

requirement—sometimes called Chevron “step

zero”—largely limits Chevron to “the fruits

of notice-and-co

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