Amicus Curiae Brief — Kendrick Jarrell Beaird, Petitioner v. United States

No. 25-5343

In the

Supreme Court of the United States

KENDRICK JARRELL BEAIRD,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF NEITHER

PARTY

MARIA C. MONAGHAN

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

ROMAN MARTINEZ

Counsel of Record

URIEL HINBERG

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-3377

roman.martinez@lw.com

Counsel for Amicus Curiae

The Chamber of Commerce of the

United States of America

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION

AND

SUMMARY

OF

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

ARGUMENT ...............................................................4

I.

STINSON’S IMPRECISE ANALOGY TO AUER

DEFERENCE DOES NOT PROVIDE A RELIABLE

FRAMEWORK FOR RESOLVING THIS CASE .............4

II.

AUER DEFERENCE IS NOT VIABLE AFTER

LOPER BRIGHT......................................................6

A. Loper Bright Forbids Deference To

Agency Interpretations Of Law ...................7

B. Kisor And Auer Should Be Overruled .......12

C. Skidmore Respect Is Consistent With

Loper Bright And Allows Courts To

Benefit From Agency Expertise .................21

CONCLUSION ..........................................................25

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Agostini v. Felton,

521 U.S. 203 (1997) ........................................... 13

Auer v. Robbins,

519 U.S. 452 (1997) ......................................... 2, 4

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945) ......................................... 2, 4

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

Defense Council, Inc.,

467 U.S. 837 (1984) ......................................... 7, 8

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ........................................... 20

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) ............................................. 9

Citizens United v. FEC,

558 U.S. 310 (2010) ........................................... 13

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) ........................................... 20

Gall v. United States,

552 U.S. 38 (2007) ............................................... 4

Geier v. American Honda Motor Co.,

529 U.S. 861 (2000) ........................................... 23

Kimble v. Marvel Entertainment, LLC,

576 U.S. 446 (2015) ........................................... 12

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Kisor v. Wilkie,

588 U.S. 558 (2019) .............................. 2, 6, 12-18

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) .......... 1, 2, 6-10, 13-17, 21-24

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................. 8, 10, 12

Mistretta v. United States,

488 U.S. 361 (1989) ............................................. 5

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ........................................... 12

Payne v. Tennessee,

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

Perez v. Mortgage Bankers Association,

575 U.S. 92 (2015) ......................................... 9, 10

Rafferty v. Denny’s, Inc.,

13 F.4th 1166 (11th Cir. 2021) ................... 18, 19

Raymond B. Yates, M.D., P.C. Profit

Sharing Plan v. Hendon,

541 U.S. 1 (2004) ............................................... 24

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ............................... 21, 22, 24

Stinson v. United States,

508 U.S. 36 (1993) ............................... 1, 2, 3, 4, 6

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Talk America, Inc. v. Michigan Bell

Telephone Co.,

564 U.S. 50 (2011) ............................................. 21

United States v. American Trucking

Associations, Inc.,

310 U.S. 534 (1940) ............................................. 8

United States v. Boler,

115 F.4th 316 (4th Cir. 2024) ..................... 11, 19

United States v. Booker,

543 U.S. 220 (2005) ............................................. 4

United States v. Chandler,

114 F.4th 240 (3d Cir. 2024)............................. 11

United States v. Dickson,

40 U.S. (15 Pet.) 141 (1841) .......................... 8, 10

United States v. Dupree,

57 F.4th 1269 (11th Cir. 2023) ........................... 5

United States v. Moses,

23 F.4th 347 (4th Cir. 2022), cert.

denied, 143 S. Ct. 640 (2023) .............................. 5

United States v. Trumbull,

114 F.4th 1114 (9th Cir. 2024), cert.

denied, 145 S. Ct. 1952 (2025) .......................... 11

United States v. Vargas,

74 F.4th 673 (5th Cir. 2023), cert.

denied, 144 S. Ct. 828 (2024) .......................... 4, 5

v

TABLE OF AUTHORITIES—Continued

Page(s)

Walker v. BOKF, National Association,

30 F.4th 994, 998 (10th Cir.), cert.

denied, 143 S. Ct. 354 (2022) ............................ 18

Wyeth v. Levine,

555 U.S. 555 (2009) ........................................... 23

CONSTITUTIONAL PROVISIONS AND

STATUTES

U.S. Const. art. III, § 1, cl. 1 .............................. 7, 10

U.S. Const. art. VI, cl. 2 ........................................... 9

5 U.S.C. § 551(4)..................................................... 10

5 U.S.C. § 551(5)..................................................... 10

5 U.S.C. § 551(13)................................................... 10

5 U.S.C. § 706 ..................................................... 8, 10

OTHER AUTHORITIES

The Federalist No. 78 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) .............. 7

Andrew Hammond & Christopher J.

Walker, Stare Decisis and the Missing

Administrability Inquiry, 100 N.Y.U. L.

Rev. 1883 (2025) ............................................... 19

Brett M. Kavanaugh, Fixing Statutory

Interpretation Judging Statutes, 129

Harv. L. Rev. 2118 (2016) ................................. 17

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Shannon S. Pickrell, Ambiguity's Final

Auer: Insisting on Consistency After

Loper Bright Enterprises, 75 Emory L. J.

425 (2026) .......................................................... 12

Chad Squitieri, Notice & Comment, Auer

after Loper Bright, Yale J. on Regul.

(Oct. 15, 2024),

https://www.yalejreg.com/nc/auer-afterloper-bright-by-chad-squitieri/ ......................... 11

Cass R. Sunstein, Our Marbury: Loper

Bright and the Administrative State, 74

Duke L.J. 1893 (2025)....................................... 11

R. George Wright, The Loper Bright

Regulatory Landscape, 35 Ind. Int’l &

Comp. L. Rev. 245 (2025).................................. 11

1

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business organization.

As the nation’s leading advocate for business, the

Chamber represents companies and professional

organizations of every size, in every industry sector,

and from every region of the country. An important

function of the Chamber is to represent the interests

of its members in matters before Congress, the

Executive Branch, and the courts. To that end, the

Chamber regularly files amicus curiae briefs in cases,

like this one, that raise issues of concern to the

nation’s business community.

The Chamber takes no position on whether

Stinson v. United States, 508 U.S. 36 (1993), should

still govern whether courts must defer to the

commentary to the Sentencing Guidelines. But the

Chamber has an important interest in ensuring the

Court does not answer that question by relying on any

administrative-law doctrine that gives deference to

agencies’ interpretations of their own regulations.

Such deference has a broad impact on American

businesses, and this Court’s recent decisions—as well

as the lower courts’ experience with doctrines

requiring such deference—make clear that it should

be jettisoned. See Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024).

1 Amicus curiae states that no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amicus curiae, its members, or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

More than three decades ago, this Court held in

Stinson v. United States that the United States

Sentencing Commission’s official Commentary on the

Sentencing Guidelines is “authoritative unless it

violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of,

that guideline.” 508 U.S. 36, 38 (1993). In so holding,

the Court drew an analogy to the deference then

afforded to agencies’ interpretations of their own

regulations under Bowles v. Seminole Rock & Sand

Co., 325 U.S. 410 (1945), which was later affirmed in

Auer v. Robbins, 519 U.S. 452 (1997). See Stinson,

508 U.S. at 44-45. The Court itself acknowledged that

this analogy to Auer deference was “not precise.” Id.

at 44.2

Since then, the Court has significantly narrowed

(or overruled) its deference doctrines in the agency

context. Most notably, the Court cabined Auer

deference in Kisor v. Wilkie, 588 U.S. 558 (2019), and

overruled Chevron deference in Loper Bright

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

evolution raises important questions about the

continued validity of Stinson’s already imprecise

analogy—and accordingly about the proper level of

deference, if any, that courts should accord the

Commentary.

The Chamber of Commerce takes no position on

the ultimate question of whether Stinson “still

correctly states the rule for the deference that courts

2

For simplicity, this brief refers to the deference doctrine

embraced in Seminole Rock and Auer as “Auer deference.”

3

must give the commentary to the Sentencing

Guidelines.” Beaird Br. i. But the Chamber has an

important interest in the reasoning the Court

employs to answer that question, which could

implicate broader issues of administrative law and

agency deference that could potentially impact the

Nation’s business community. To assist the Court,

the Chamber makes two principal points in this brief.

First, the Court should be wary of resolving this

case based on Stinson’s concededly “not precise”

analogy to Auer deference. 508 U.S. at 44. Several

important distinctions between the agency context

and the Guidelines context call the analogy’s

reliability into question. The Court should not

assume that Auer deference automatically carries

over to the Commission and the Guidelines. If

Stinson deference is still proper, it should be justified

from first principles rooted in the text and structure

of the Sentencing Reform Act, and the Commission’s

unique institutional position vis-à-vis the Judiciary.

Second, if the Court nevertheless concludes that

the Stinson question turns on the continued vitality

of Auer deference—even as refined by Kisor—it

should hold that Auer is no longer good law after

Loper Bright. Loper Bright held that courts must

exercise independent judgment on questions of law, a

duty rooted in Article III’s conception of the judicial

role and codified in the APA. That principle applies

with equal force to agency interpretations of their own

regulations. After Loper Bright, Skidmore respect

still applies, under which courts can give appropriate

weight to specialized agency expertise without ceding

their judicial duty to exercise independent judgment.

4

Deference on such interpretive questions is no longer

allowed.

ARGUMENT

I. STINSON’S IMPRECISE ANALOGY TO AUER

DEFERENCE DOES NOT PROVIDE A RELIABLE

FRAMEWORK FOR RESOLVING THIS CASE

In Stinson v. United States, this Court held that

the Commentary is “authoritative unless it violates

the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of,

that guideline.” 508 U.S. 36, 38 (1993). To reach that

conclusion, the Court drew an analogy to the

deference then afforded to agencies’ interpretations of

their own regulations under Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410 (1945), and later Auer v.

Robbins, 519 U.S. 452 (1997). See Stinson, 508 U.S.

at 44-45. But the Court acknowledged that the

analogy was “not precise.” Id. at 44. Rather than

continue relying on this imprecise analogy, this Court

should resolve this case by assessing whether Stinson

deference can stand on its own footing.

Important distinctions between the agency context

and the sentencing context undermine the analogy’s

reliability as a guide to whether courts should defer

to the Sentencing Commission’s Commentary on the

Guidelines. Most notably, since this Court’s decision

in United States v. Booker, 543 U.S. 220, 245 (2005),

the Guidelines are now advisory rather than

mandatory, and appellate courts review sentences for

“reasonableness” rather than strict compliance with

the Guidelines or their Commentary, Gall v. United

States, 552 U.S. 38, 46 (2007).

That severely

undermines the analogy to agency deference doctrines

designed for binding rules. See United States v.

5

Vargas, 74 F.4th 673, 699 (5th Cir. 2023) (Oldham, J.,

concurring in part) (questioning the continued vitality

of the Auer analogy because “the cornerstone of the

Stinson regime is the binding nature of the

Guidelines,” and “the Booker Court held that the

Guidelines were not binding on federal courts”), cert.

denied, 144 S. Ct. 828 (2024).

Other considerations specific to the Guidelines

context may also affect the analogy to Auer deference.

The Sentencing Commission “is a peculiar institution

within the framework of our Government.” Mistretta

v. United States, 488 U.S. 361, 384 (1989). As the

Fourth and Fifth Circuits have noted, this unique

institutional position may justify “a distinct

approach” to deference. Vargas, 74 F.4th at 682-83

(citation omitted); United States v. Moses, 23 F.4th

347, 355 (4th Cir. 2022), cert. denied, 143 S. Ct. 640

(2023); see also United States v. Dupree, 57 F.4th

1269, 1284-85 (11th Cir. 2023) (Grant, J., concurring

in the judgment). And while the Commentary is not

technically required to go through public notice, “in

practice, the Commission ordinarily uses the same”

notice-and-comment procedure to revise the

commentary as it does to revise the Guidelines.

Dupree, 57 F.4th at 1281 (Pryor, C.J., concurring).

That distinguishes the Commentary from agency

interpretations of regulations, which are often issued

through sub-regulatory guidance that can be changed

or withdrawn on a whim.

These distinctions may or may not be dispositive

of whether Auer deference can reliably inform what

level of deference the Commission’s Guidelines

Commentary should receive. At a minimum, though,

they significantly complicate the analysis. And

relying on the Auer analogy is even more fraught

6

given this Court’s post-Stinson decisions—most

importantly, Kisor v. Wilkie, 588 U.S. 558 (2019), and

Loper Bright Enterprises v. Raimondo, 603 U.S. 369

(2024)—directly undermining the version of deference

that Auer embraced. See infra at 7-12.

Given these complications, the Chamber urges the

Court not to resolve the question presented here

based on Stinson’s “not precise” analogy to Auer. 508

U.S. at 44. If Stinson deference—or some lesser form

of deference to the Commentary—is to survive, it

must be justified on independent grounds, rooted in

the text and structure of the Sentencing Reform Act,

the nature of the Guidelines and Commentary, and

the Commission’s unique institutional position vis-àvis the Judicial branch. The Court should certainly

not assume that deference doctrines from the agency

context automatically carry over to the sentencing

context.

II. AUER DEFERENCE IS NOT VIABLE AFTER LOPER

BRIGHT

If this Court nevertheless concludes that the

Stinson question presented here turns on an analogy

to agency interpretations of their own regulations, it

should hold that deference in that context is not

permissible after Loper Bright. There, the Court

rejected Chevron deference to agency interpretations

of statutes based on its extended analysis of the

inherent role of Article III courts, as reflected in

Section 706 of the APA. That analysis applies with

equal force to agency interpretations of their own

regulations.

And although Kisor upheld Auer

deference on stare decisis grounds, that holding has

now been fatally undermined by Loper Bright and

7

post-Kisor experience. Going forward, courts should

exercise independent judgment when interpreting

agency legal interpretations, giving Skidmore respect

to relevant agency expertise, when appropriate,

without ceding interpretive responsibility to the

Executive.

A. Loper Bright Forbids Deference

Agency Interpretations Of Law

To

1. In Loper Bright, this Court overruled Chevron

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

467 U.S. 837 (1984). Chevron had required courts to

defer to “‘permissible’” agency interpretations of the

statutes those agencies administer, “even when a

reviewing court reads the statute differently.” Loper

Bright, 603 U.S. at 377-78; see Chevron, 467 U.S. at

843. Loper Bright held that Chevron deference is

fundamentally incompatible with the “traditional

conception of the judicial function,” under which

courts have a duty to exercise independent judgment

on questions of law. 603 U.S. at 395-96. It explained

that this duty was rooted in Article III, reflected

throughout our Nation’s history, and codified in the

APA. Id. at 384-401.

As the Court emphasized, the Constitution assigns

to the federal judiciary the responsibility to interpret

the law. Article III vests the “judicial Power” in the

federal courts, U.S. Const. art. III, § 1, cl. 1, and the

Framers understood that “interpretation of the laws”

would be “‘the proper and peculiar province of the

courts,’” Loper Bright, 603 U.S. at 385 (quoting The

Federalist No. 78, at 525 (Alexander Hamilton)

(Clinton Rossiter ed., 1961)). The Court noted that it

had “embraced the Framers’ understanding of the

judicial function early on,” with Chief Justice

8

Marshall declaring in Marbury v. Madison that “‘[i]t

is emphatically the province and duty of the judicial

department to say what the law is.’” Id. (alteration in

original) (quoting 5 U.S. (1 Cranch) 137, 177 (1803)).

And the Court underscored that Marbury’s core

teaching on this point was reflected in many

subsequent decisions acknowledging the Judiciary’s

“‘solemn duty’” to exercise independent judgment

when declaring the meaning of federal law. Id.

(quoting United States v. Dickson, 40 U.S. (15 Pet.)

141, 162 (1841)).

The Court then held that Section 706 of the APA

codified this traditional understanding of the judicial

function. Id. at 391-96. It noted that Section 706

directs a “reviewing court” to “decide all relevant

questions of law, interpret constitutional and

statutory provisions, and determine the meaning or

applicability of the terms of an agency action.” Id. at

391 (quoting 5 U.S.C. § 706). The Court explained

that Congress enacted Section 706 against the

“settled pre-APA understanding that deciding

[questions of law] was ‘exclusively a judicial

function.’” Id. at 392 (quoting United States v. Am.

Trucking Ass’ns, Inc., 310 U.S. 534, 544 (1940)).

Section 706 thus “codifie[d] 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.” Id. at 391-92.

Applying these principles, the Court then held

that Chevron “defies” the APA because it requires a

court to “ignore, not follow, ‘the reading the court

would have reached’ had it exercised its independent

judgment.” Id. at 398-99 (quoting Chevron, 467 U.S.

at 843 n.11). And while Article III and the APA are

9

perfectly consistent with giving “‘respect’” to agency

interpretations, they do not permit courts to

“mechanically afford binding deference to agency

interpretations”—which is precisely what Chevron

required. Id. at 399 (citation omitted). The Court

recognized that Chevron deference is “the antithesis

of the time honored approach” embodied in the APA.

Id.

2. Auer deference cannot be reconciled with Loper

Bright. Although Loper Bright directly addressed

agency interpretations of statutes, its reasoning

applies with equal force to agencies’ interpretations of

their own regulations.

Deference to agency

interpretations of regulations thus violates the

traditional conception of the judicial role—and the

APA—no less than deference to agencies’

interpretations of statutes.

Auer deference is inconsistent with Loper Bright’s

conception of Article III judicial power, as understood

throughout our Nation’s history. Loper Bright held

that Article III courts have traditionally “decide[d]

legal questions by applying their own judgment”—not

by deferring to the Executive’s preferred reading. Id.

at 391-92. That rule applies to the interpretation of

regulations no less than the interpretation of

statutes. After all, regulations have the “‘force and

effect of law’” and bind the public just like statutes.

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015)

(citation omitted). Indeed, “regulations implementing

federal statutes have been held to pre-empt state law

under the Supremacy Clause,” Chrysler Corp. v.

Brown, 441 U.S. 281, 295-96 (1979)—which

commands that “the Laws of the United States . . .

shall be the supreme Law of the Land,” U.S. Const.

art. VI, cl. 2 (emphasis added).

10

When courts interpret regulations, they

accordingly exercise the same “judicial Power” that

Article III vests in them—the power “to say what the

law is.” Marbury, 5 U.S. (1 Cranch) at 177; see U.S.

Const. art. III, § 1, cl. 1; Loper Bright, 603 U.S. at 385.

The “solemn duty” to exercise independent judgment

in “interpret[ing] the laws” thus plainly applies to

regulations no less than to statutes. Dickson, 40 U.S.

(15 Pet.) at 162 (emphasis added); see Loper Bright,

603 U.S. at 385; Perez, 575 U.S. at 119 (Thomas, J.,

concurring in the judgment).

For similar reasons, Auer deference contradicts

Loper Bright’s interpretation of APA Section 706. As

explained above, Section 706 directs a reviewing court

to “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; supra at 8. Loper

Bright read this command as requiring courts to

exercise independent judgment on legal questions,

concluding that Section 706 “specifies that courts, not

agencies, will decide ‘all relevant questions of law’

arising on review of agency action”—“even those

involving ambiguous laws.” 603 U.S. at 392 (citation

omitted).

This reasoning directly governs an agency’s

interpretation of its own regulations. Again, a

regulation is a “law” because it is binding on private

parties. Supra at 9. The proper interpretation of a

regulation therefore presents a “question of law” that

Section 706 assigns to Article III courts. And Section

706 separately requires courts to “determine the

meaning or applicability of the terms of an agency

action,” 5 U.S.C. § 706—which includes an agency’s

“rule making,” id. § 551(4)-(5), (13); see Perez, 575

11

U.S. at 110 (Scalia, J., concurring in the judgment).

Deference to agency interpretation of regulations

cannot be reconciled with Loper Bright’s view of

Section 706.

3. Auer’s incompatibility with Loper Bright has

not gone unnoticed. For example, the Fourth Circuit

has pointed out that Loper Bright “calls into question

the viability of Auer deference.” United States v.

Boler, 115 F.4th 316, 322 n.4 (4th Cir. 2024). Judge

Bibas has explained that Loper Bright “casts doubt”

on judicial deference to agencies’ regulatory

interpretations. United States v. Chandler, 114 F.4th

240, 241 (3d Cir. 2024) (Bibas, J., dissenting from

denial of reh’g en banc). And Judge Bea has echoed

that sentiment as well.

See United States v.

Trumbull, 114 F.4th 1114, 1126 (9th Cir. 2024) (Bea,

J., concurring in the judgment), cert. denied, 145 S.

Ct. 1952 (2025).

Prominent academics have made the same point.

Professor Squitieri notes that “Auer is in tension with

the overall thrust of Loper Bright” and that “Loper

Bright suggests that Auer is no longer deserving of

[stare decisis] protection.” Chad Squitieri, Notice &

Comment, Auer after Loper Bright, Yale J. on Regul.

(Oct. 15, 2024), https://www.yalejreg.com/nc/auerafter-loper-bright-by-chad-squitieri/.

According to

Professor Sunstein, Loper Bright “sits (umm, err)

uneasily with Kisor,” making it “awkward to maintain

both [decisions].” Cass R. Sunstein, Our Marbury:

Loper Bright and the Administrative State, 74 Duke

L.J. 1893, 1895 n.6 (2025). Professor Wright agrees:

In his view, “Auer deference may well not withstand

the logic and ‘mood’ of Loper Bright.” R. George

Wright, The Loper Bright Regulatory Landscape, 35

Ind. Int’l & Comp. L. Rev. 245, 256 (2025); see also

12

Shannon S. Pickrell, Ambiguity’s Final Auer:

Insisting on Consistency After Loper Bright

Enterprises, 75 Emory L. J. 425, 461-65 (2026).

Meanwhile, no one—no court and no academic—

has offered a persuasive way to reconcile the logic of

Loper Bright and Auer. No such reconciliation is

possible. Auer cannot be squared with Loper Bright’s

embrace of the cardinal principle that judges must

exercise independent judgment when “say[ing] what

the law is.” Marbury, 5 U.S. (1 Cranch) at 177.

B. Kisor And Auer Should Be Overruled

In Kisor, this Court declined to overrule Auer

deference, but the Court “c[ould not] muster even five

votes to say that Auer is lawful or wise.” 588 U.S. at

592 (Gorsuch, J., concurring in the judgment).

Instead, the majority’s decision rested on stare decisis

grounds. See id. at 590-91 (Roberts, C.J., concurring

in part). This Court’s exclusive reliance on stare

decisis to reluctantly uphold Auer deference in

Kisor—five years before Loper Bright made explicit

that interpretive deference is legally unsupportable—

should not stay the Court’s hand a second time.

Kisor’s stare decisis analysis rested entirely on

two points. First, the majority emphasized that the

petitioner in that case had not pointed “to changes in

legal rules that make Auer a ‘doctrinal dinosaur.’” Id.

at 588 (quoting Kimble v. Marvel Ent., LLC, 576 U.S.

446, 458 (2015)). Second, the majority noted that the

petitioner had “not claim[ed] that Auer deference is

‘unworkable.’” Id. (quoting Patterson v. McLean

Credit Union, 491 U.S. 164, 173 (1989)).

Both of those factors now weigh strongly in favor

of overruling both Kisor and Auer. To the extent that

Auer’s ongoing vitality bears on the Stinson question

13

presented in this case, the Court should reject any

further reliance on Auer’s flawed deference

framework.

1. Kisor recognized that a key factor in

determining whether to overrule precedent is

whether a decision remains compatible with the

broader legal framework, or whether its logic has

been

contradicted

by

intervening

doctrinal

developments. See id. at 588. Stare decisis is the

means by which courts “ensur[e] that the law . . . will

develop in a principled and intelligible fashion.”

Citizens United v. FEC, 558 U.S. 310, 378 (2010)

(Roberts, C.J., concurring) (citation omitted).

Preserving doctrinal rules whose premises have been

overtaken by later decisions undermines that

objective. See Agostini v. Felton, 521 U.S. 203, 235-36

(1997).

Applying this factor in Kisor, the majority viewed

Auer as generally compatible with the then-current

landscape of administrative law.

The majority

refused to overturn Auer because it could identify no

“changes in legal rules” rendering Auer’s deference

regime obsolete. Kisor, 588 U.S. at 588 (citation

omitted).

Things have changed dramatically since 2019.

This Court’s 2024 Loper Bright decision is, by nearly

all accounts, a landmark ruling of administrative law,

reversing decades of judicial deference to agency legal

interpretations. See 603 U.S. at 398 (describing

Chevron as a “watershed decision”); id. at 479 (Kagan,

J., dissenting) (describing Chevron as a “cornerstone

of administrative law”). Loper Bright is precisely the

type of “change[] in legal rules” that the Kisor

majority was not able to identify in 2019.

14

After Loper Bright, this Court’s administrativelaw jurisprudence now rests on the understanding

that (1) it is the Judiciary’s duty to determine legal

meaning through the exercise of independent

judgment, and (2) the APA codified that historical

understanding of the judicial role. Auer deference

holds the opposite on both fronts. Supra at 9-11. The

two

decisions

thus

rest

on

irreconcilable

understandings of the judicial role under Article III

and Section 706.

Any doubt about the incompatibility of Loper

Bright and Auer deference is dispelled by the starkly

different interpretations of Section 706 embraced by

the Loper Bright majority and the Kisor plurality. In

Kisor, the pro-deference plurality strained to

reconcile Auer deference with Section 706. To do so,

it argued that Section 706’s instruction that courts

must “determine the meaning or applicability of the

terms of an agency action” allows a court to

“determine the meaning” of a regulation by deferring

to the agency’s reasonable interpretation. 588 U.S. at

581 (plurality).

Loper Bright has now squarely rejected that

reading. There, the Court held that Section 706

“codifies for agency cases the unremarkable, yet

elemental proposition . . . that courts decide legal

questions by applying their own judgment”—a

standard the Court held was incompatible with

“deference” to agencies’ interpretations of legal texts.

603 U.S. at 391-92, 395. In reaching this conclusion,

the Court echoed the argument Justice Gorsuch had

made in his Kisor concurrence, criticizing the

plurality:

Section 706’s “unqualified command

requires the court to determine legal questions—

including questions about a regulation’s meaning—by

15

its own lights, not by those of political appointees or

bureaucrats.” 588 U.S. at 604-05 (Gorsuch, J.,

concurring in the judgment). Loper Bright vindicated

that view, which now represents this Court’s settled

understanding of Section 706.

Loper Bright also rejected the Kisor plurality’s

primary justification for both Chevron and Auer

deference: the presumption that “ambiguities” in

legal texts “are implicit delegations to agencies.” 603

U.S. at 399; see Kisor, 588 U.S. at 569-70 (plurality)

(explaining that Auer deference is “rooted in . . . a

presumption that Congress would generally want the

agency to play the primary role in resolving

regulatory ambiguities” and that “‘the power

authoritatively to interpret its own regulations is a

component of the agency’s delegated lawmaking

powers’” (citation omitted)). Loper Bright called this

delegation theory a “fiction” that does not

“approximate reality.” 603 U.S. at 399, 404. An

ambiguity, the Court explained, is “simply not a

delegation of law-interpreting power” to the

Executive; it is the inevitable result of “’imperfection

of human faculties’” and the inherent limits of

language.

Id. at 399-400 (citations omitted).

Resolving ambiguities therefore requires courts—not

agencies—to “apply[] all relevant interpretive tools”

and determine the “best” reading. Id. at 400, 402-03.

The Kisor plurality’s contrary premise cannot be

squared with Loper Bright.

In Kisor, the majority assessed Auer deference

against the then-applicable doctrines of judicial

review in the agency context. At the time, that

approach reflected an understandable attempt to

vindicate the stare decisis goal of promoting the

16

“evenhanded,

predictable,

and

consistent

development of legal principles.”

But the Kisor majority implicitly recognized that

circumstances could change—and that upholding

Auer deference might no longer be warranted if legal

rules evolved to the point that Auer became a

doctrinal outlier.

That is precisely what has

happened in the years since Kisor. Loper Bright’s

landmark ruling has now clarified the judicial role in

legal interpretation in a way that cannot be reconciled

with Kisor. The Kisor majority’s own reasoning now

supports setting Auer deference aside.

2. The Kisor majority also declined to overturn

Auer because the petitioner there had “not claim[ed]

that Auer deference is ‘unworkable.’” 588 U.S. at 588

(citation omitted). But post-Kisor developments have

shown that Auer deference—even as modified by

Kisor—is indeed unworkable.

One workability problem flows from Auer’s

reliance on a judicial finding that a rule is “genuinely

ambiguous” to trigger deference to the agency in the

first place. Id. at 574. Before Loper Bright, such

ambiguity had likewise served as the trigger for

Chevron deference. As this Court explained in Loper

Bright, “[t]he defining feature of [Chevron’s]

framework is the identification of statutory

ambiguity” at the first step. 603 U.S. at 407-08.

Loper Bright’s stare decisis analysis expressly

held that Chevron’s reliance on the ambiguity trigger

rendered Chevron deference “unworkable.” Id. The

Court explained that “the concept of ambiguity has

always evaded meaningful definition.” Id. at 408.

Because ambiguity “‘may have different meanings for

different judges,’” a rule that turns on identifying

17

ambiguity is “wholly ‘in the eye of the beholder’” and

is bound to produce “different results in like cases,”

rendering the doctrine “‘arbitrary in practice.’” Id.

(citations omitted); see Brett M. Kavanaugh, Fixing

Statutory Interpretation Judging Statutes, 129 Harv.

L. Rev. 2118, 2150-54 (2016) (book review). The Court

therefore concluded that Chevron’s unworkability

weighed in favor of “letting Chevron go.” Loper

Bright, 603 U.S. at 407.

Auer suffers from the exact same defect. Under

Kisor’s clarification of Auer, deference is triggered

only after a court concludes that a regulation is

“genuinely ambiguous.” Kisor, 588 U.S. at 573-74.

But if—as Loper Bright held—ambiguity “evade[s]

meaningful definition” in the context of statutory

interpretation, the same must be true in the context

of regulatory interpretation as well. The question

“How clear is clear?” does not become any easier to

answer simply because the legal text at issue is a

regulation rather than a statute. Like Chevron,

Kisor’s framework turns on a trigger—ambiguity—

that no one has succeeded in defining with any

precision and that different judges will inevitably

apply in inconsistent ways.

Beyond the ambiguity trigger, Auer has also

proven unworkable in other respects. In its effort to

rehabilitate Auer and mitigate the tension with

Section 706 and the judicial function, the Kisor

majority reformulated Auer deference into a five-step

inquiry. A court must (1) first determine whether the

regulation is “genuinely ambiguous” after applying all

the traditional tools of legal interpretation. See Kisor,

588 U.S. at 574. If yes, the court must (2) then ask

whether the agency’s interpretation is “reasonable.”

Id. at 575-76. And even if the first two conditions are

18

satisfied, the court must (3) make “an independent

inquiry into whether the character and context of the

agency interpretation entitles it to controlling

weight”—considering (3a) whether the interpretation

is the agency’s “‘authoritative’” or “‘official position,’”

(3b) whether it implicates the agency’s “substantive

expertise,” and (3c) whether it reflects the agency’s

“‘fair and considered judgment.’” Id. at 576-79

(citations omitted). As Justice Gorsuch observed, this

complicated, multi-step framework was “destined

only to compound the confusion” from the beginning.

Id. at 627 (Gorsuch, J., concurring in the judgment).

The Judiciary’s experience applying Kisor

confirms Justice Gorsuch’s fears. In the post-Kisor

world, appellate judges routinely—and forcefully—

disagree over whether regulatory language is

“genuinely ambiguous,” the threshold requirement

for an agency’s interpretation to receive deference. In

Walker v. BOKF, National Association, for example,

the Tenth Circuit considered whether to defer to an

interpretation of the Office of the Comptroller of the

Currency addressing whether overdraft fees were

“‘interest’” or “‘non-interest’” charges under OCC

regulations. 30 F.4th 994, 998 (10th Cir.) (citations

omitted), cert. denied, 143 S. Ct. 354 (2022). The

majority purported to undertake “the rigorous inquiry

required under Kisor” and concluded that the

regulations were genuinely ambiguous, ultimately

deferring to the OCC’s interpretation. Id. at 1007.

But according to Judge Eid, the majority was too

quick to find ambiguity and thus “cast[] aside the care

and caution that the Supreme Court stressed in

Kisor.” Id. at 1016 (Eid, J., dissenting). Similar

examples abound. See, e.g., Rafferty v. Denny’s, Inc.,

13 F.4th 1166, 1180-81 (11th Cir. 2021) (majority

19

concluding Department of Labor regulation was

“genuinely ambiguous”); id. at 1195-97 (Luck, J.,

concurring in the result) (concluding that regulation

was not “genuinely ambiguous”); Boler, 115 F.4th at

323-29 (majority concluding that Sentencing

Guideline was “genuinely ambiguous”); id. at 329-38

(Quattlebaum, J., dissenting) (concluding that

Guideline was “not ambiguous”).

A recent study by Professors Hammond and

Walker puts the problem in sharp relief. They

reviewed nearly 1,000 judicial decisions citing Kisor

over its first five years. See Andrew Hammond &

Christopher J. Walker, Stare Decisis and the Missing

Administrability Inquiry, 100 N.Y.U. L. Rev. 1883,

1899 (2025). Their bottom-line conclusion: “[L]ower

courts have struggled to apply Auer deference in a

consistent fashion after Kisor.” Id. at 1917.

Of particular concern, when reviewing courts

ultimately defer to an agency’s regulatory

interpretation—where one would expect full

application of all five Kisor steps—courts address all

five steps only 42% of the time. Id. at 1907-08.

Meanwhile, agency-win rates “vary dramatically

based on the reviewing circuit court” and agency,

suggesting that outcomes depend more on which court

hears a case or what agency brings a case than on any

coherent application of Kisor’s framework. Id. at

1887-88. The study minces no words, concluding that

“the Kisor approach to Auer deference has not been

administrable in the lower courts.” Id. at 1917.

Faced with a doctrine that the Court could not

defend on the merits, the Kisor majority sought a

middle ground—preserving Auer deference while

limiting its reach through a series of procedural

guardrails.

But adding complexity has created

20

problems of its own. Kisor has spawned inconsistency

and unpredictability—the very ills stare decisis is

meant to prevent. Both Kisor and Auer should be

overruled.

3. Overruling Auer deference would promote the

stare decisis ideals of uniformity and predictability

across the legal system.

By applying their

independent judgment to the meaning of

regulations—as Loper Bright requires for statutes—

courts would follow a coherent approach to judicial

review of agency action and allow for the

“evenhanded” and “consistent development of legal

principles” across the statutory and regulatory

contexts. Payne v. Tennessee, 501 U.S. 808, 827

(1991).

Overruling Auer would also incentivize agencies

to effectuate their intent through legislative rules

adopted after notice-and-comment rulemaking,

instead of relying on sub-regulatory guidance

documents readily changeable without input from the

public. That approach would be faithful to the core

logic of the APA’s notice-and-comment requirements.

“A fundamental principle in our legal system is that

laws which regulate persons or entities must give fair

notice of conduct that is forbidden or required.” FCC

v. Fox Television Stations, Inc., 567 U.S. 239, 253

(2012). Notice-and-comment rulemaking serves this

fundamental principle by allowing regulated entities

to shape regulatory decisions and to understand the

standards by which their conduct will be judged.

Auer deference, by contrast, encourages agencies

to “promulgate vague and open-ended regulations

that they can later interpret as they see fit, thereby

‘frustrat[ing] the notice and predictability purposes of

rulemaking.’” Christopher v. SmithKline Beecham

21

Corp., 567 U.S. 142, 158 (2012) (alteration in original)

(quoting Talk America, Inc. v. Mich. Bell Tel. Co., 564

U.S. 50, 69 (2011) (Scalia, J., concurring)). That

comes at the expense of the clarity that businesses

and other regulated entities need to conform their

conduct to the law. Overruling Auer would restore the

proper balance.

C. Skidmore Respect Is Consistent With

Loper Bright And Allows Courts To

Benefit From Agency Expertise

Overturning Auer deference would not force courts

to disregard the expertise of agencies when

interpreting their own regulations. In Loper Bright,

the Court recognized and preserved an interpretive

tool—Skidmore respect—that courts have applied in

the context of administrative interpretations of law.

Eight decades ago in Skidmore v. Swift & Co., the

Supreme Court suggested that courts should give

“weight” to an agency interpretation based on “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.” 323

U.S. 134, 140 (1944). In Loper Bright, the Court was

careful to frame Skidmore as a form of “respect”—not

controlling deference—based on the agency’s power to

persuade. See, e.g., 603 U.S. at 412-13 (“Careful

attention to the judgment of the Executive Branch

may help inform that inquiry.”); id. at 403 (“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.”). That same interpretive tool applies to

22

judicial review of agency interpretations of their own

regulations.

Under Skidmore respect, agency interpretations

are not controlling, but they “constitute a body of

experience and informed judgment to which courts

and litigants may properly resort for guidance.” 323

U.S. at 140. Skidmore thus recognizes that agency

regulatory interpretations possess a “power to

persuade”—and courts may accord their views

“weight”—without demanding that courts treat such

interpretations as binding. Loper Bright expressly

preserved—and blessed—Skidmore respect.

The

Court emphasized that expertise “has always been

one of the factors which may give an Executive

Branch interpretation particular ‘power to persuade,

if lacking power to control.’” 603 U.S. at 402 (quoting

Skidmore, 323 U.S. at 140). According “due respect”

to agency interpretations, the Court explained, is

fully consistent with Loper Bright’s vision of the

judicial role. Id. at 403. Under Skidmore, courts

accord weight to an interpreter’s views based on its

reasoning and consistency—but they retain the final

word on “‘whether the law means what the agency

says.’” Id. at 392 (citation omitted).

The distinction between Skidmore respect and

Auer deference is critical. Skidmore invites courts to

consider and learn from an expert’s views; Auer

requires courts to subordinate their independent

judgment to those views. The first is a hallmark of

careful judging; the second, an abdication of the

judicial role.

Skidmore respect ultimately makes sense because

agencies often have deep familiarity with the realworld problems that federal statutes and regulations

are designed to address. Indeed, agencies often work

23

together with Congress to draft legislation, and they

are directly responsible for drafting regulations. And

as this Court has recognized, an agency’s views can be

“especially informative” when they rest on “‘factual

premises within [its] expertise.’” Id. at 402 (citation

omitted). In other words, sometimes the government

may have a perspective that helps courts understand

a regulatory framework, perhaps due to its informed

and contemporaneous knowledge of the meaning of

the regulation or its specialized expertise

implementing a regulatory scheme.

When the

government’s views are thoughtful and well informed,

they may well be entitled to significant respect.

Federal preemption is one area where agency

expertise can yield valuable insights. In Wyeth v.

Levine, this Court noted that in prior cases, it had

given “weight” to an agency’s views about “how state

law affects [a] regulatory scheme.” 555 U.S. 555, 57677 (2009) (listing cases). This was warranted, the

Court explained, because agencies “have a unique

understanding of the statutes they administer and an

attendant ability to make informed determinations

about how state requirements may pose an ‘obstacle

to the accomplishment and execution of the full

purposes and objectives of Congress.’” Id. at 577

(citation omitted); see also Geier v. American Honda

Motor Co., 529 U.S. 861, 883 (2000).

The same principle applies across many

regulatory contexts.

An agency’s unique

understanding of a complex statutory and regulatory

scheme will often prove persuasive, particularly

where the agency has maintained a consistent

interpretation over the years rather than shifting

with changes of administration. For example, this

Court has given respectful consideration to

24

Department of Labor bulletins interpreting ERISA

provisions where the agency’s view reflected “a body

of experience and informed judgment.” Raymond B.

Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541

U.S. 1, 18 (2004) (quoting Skidmore, 323 U.S. at 140).

Rejecting Auer deference will not leave courts adrift

when analyzing sometimes byzantine regulatory

schemes; agency interpretations will continue to

provide valuable insights, so long as the authoring

agencies can still justify their interpretations.

In short, recognizing agencies’ “power to persuade”

ensures that their expertise will properly inform a

court’s interpretation, while the court retains final

responsibility for determining what the law means.

Skidmore thus allows courts to benefit from practical

expertise without abandoning their duty to

independently determine the law’s meaning. Binding

deference is “simply not necessary to ensure” that

courts are “well informed by subject matter

expertise.” Loper Bright, 603 U.S. at 402-03.

*

*

*

For the reasons noted, the Court should resolve

Stinson’s fate without relying on an imprecise

analogy to Auer deference. That analogy was dubious

at the time, and it has only grown less reliable after

Booker, Kisor, and Loper Bright. But to whatever

extent the Court believes administrative-law

principles bear on the Stinson question, it should

recognize that Auer deference is no longer appropriate

in any context. Going forward, courts should resolve

legal questions by applying their own independent

judgment, just as Loper Bright commands.

25

CONCLUSION

The Court should resolve the question presented

in a manner consistent with the principles discussed

above.

Respectfully submitted,

MARIA C. MONAGHAN

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

ROMAN MARTINEZ

Counsel of Record

URIEL HINBERG

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-3377

roman.martinez@lw.com

Counsel for Amicus Curiae

The Chamber of Commerce of the

United States of America

July 7, 2026