we will hear argument next in case 22451, local right enterprise versus raimondo. >> mr. chief justice, may it please the court, this case -- commercial fishing his art. spe board the vehicle vessels are tight and rgs are tighter still. therefor f my client havi to carry federal observers on bod is a burden, but having to pay their salaries is a crippling bl. congress recognizes much by rily limiting the circumstances in whh domestic fishing vessels can bebattle with monitoring costs and capping them at 2%-3% of the value of the catch.

the agency showed no such restraint requiring monitoring of 50% e trips and a cause of 20of their annual returns. nonethels the court deferred to t agency because it blew -- view the statue assignment. there is no justificatiofor giving the deto the government. both the apa and constitution of what his prciples call for de novo revi king only what is the best reading of the statute. asking instead is the statue ambiguous is fundamentally misguided. the whole point was to bring clarity and notoidentify ambiguity. the governntdefends this practice no the best ring of the apa by invoking starter sizes. that is doubly problemic the issue is only chevron's methodology and title to reduce the effect. we have no beef with the chevron clean air act holding and we cannot take ise th

apa holding because it failed to mention that statue second, all of the factors point in favor of over rudy -- overruling the methodology, unworkable as its threshold is hopelessly ambiguous. it is also a reliance destroying doctrine, because it is a taste agency flip-flopping. the reality here is the chevron to step has to go and should be replaced with only one question, what is the best readg the statue? i welcome the course questions. >> you've hearthe government for the generals argument with the use of mandamus mandamus as a basis for deference. could you comment on that? my understanding of mandamus is the duty has to be clear before it actually lies. i wod like your comment on that. absolutely, justice thomas.

i think mandamus is a critical recognition of the fact that congress can remedy the availabilities in particular circumstances. that is the right way to understand the mandamus standard. that is quite different from telling e urt they are to engage in as congress clearly did. but then say there is a pot wch you cannot actually give us the best answer because you are deferring. i think itisimportant from a separation of powers purpose to understand it is not as remedies, there is an accountability difference. i suppose congress could decide we are going to go back to a world whe e only review of action is mandamus. congress wouldth be fully responsible for that highly popular decision. that is the difference, the fundamenta fference from a separation of powers stamp between a limitation on remedy and specicly telling the court in the apa specifically you have thinrpretive auority over statues no less

than constitutiona issues, but then erying a doctrine that sayswhat we are doing is terpretation. that is the critical thing about the tehange between footnote 9 and footnote 1 footnote 9 tells you as clearly as i can what you are doina statutory interpretation. in footnote 11 it says that a certain point you stop doing statuty terpretation, even though you think there is a better answer. you refer to a different branch of govnmt. it is not the branch the framers gave the interpreti authority two. it is the branch the framers gave the implementing ority. i think from that standpoint chevron is a fundamental and egregiously wrong decision that gets it wrong on thbas of separation of powers. >> there is su a contention in this. interpreveauthority means discretion. it means there are multiple meetings that you n take om something and someone has to choose among thos meetings. it seems like most people age

if the statue uses reasonable that congress is deleti the definition of reasonable to the agency. the agcy is deciding what is reasonablewiin some outer limits either set within the statue or within the law. the point is, it is great rhetoric,mr. clement, but we do delegate. we have recognized allegations to agencies from the benng of the founding of interpretation. i am at a loss to understa where the argument comes from. >> i think there is a differen between recognizinretion and recoizg delegation. there are certain statutory terms as you yourlfwent out that properly construed by the courts definitively would give e agency a realm of discretion in which to operate.

there arotr terms in which it is really a na question. the fundamental feeling chevron is it doesn't do a good job of distinguishing between the two. the best example is brand ex. broadband communications are either an information service or telecommicions service. it might be hard to figure out which one,utthere cannot be one of the tuesday mx on a thursday. >> wait a minute, it may be binary to you. i do know with the development of technology and with the development of hothat is implemented in terms of transmison and the internet thatvetime that is going to change. the same issue even ithcase that we are in right now, the were two areas the congress look that and you that -- reviewed for sytravel for obvious reasons. there is very little outside

on tse shs leave that the u.s. government can do to them. the otheri think it was the north pacific area, but the point is that esn't mean that similar problems didn't arise later d that the broad words giving the secretary the power to mit and implement ases to enre that his conservation goals were being followed wasn't given to the agency. those arthe facts and whatwe should be looking at in my judgment. is this measure commensurate with atdrove a similar measure, not identical, in the other two exples. the agency should have first crack at at if they are not similar the court will look and say your decision was arbitrary and caprio. if they are similar wemight say okay, this is all right. i don't know the answer. we real hen't dug into that.

it is just a point that i am making, which is things change the ground. a definition you give today may not hold up to new facts. >> backs do change on th ground. that is probably probable chevron and brd . if there is a difficulty in classifying broadband today, the difficult to get the stat was last passed in 1996. going out of 2023 oaand is a 1996 information service or 1996 telemmications services the granddaddy of a problem. does have a binary answer. bringing it home to the statue, at i would say isif you do the chevron ambiguity test if i never like a pro it in the stueor maybe for some people carry. i think that one is pret clear. to say that word is ambiguous i want to go to eptwo. but if you look at the statue as a whole.

if you look at it the way you would in anyotr context, i think what you would see if this is a classic case, i rg the exact phrase. the point is you have a situation thatinthe worst fishery in the country congress that you may not not must-have monitors paid for by e industry. but if you do that you must have thefeat 2%-3% of the value of the catch. a congress that did that with the most well healed fishery in the nation, do nothing possibly convey the authority to the en to say with a much different fishery in the atntic where it's small business people, where going to let you do effectively the same thing, but we are going t you do it to the turn -- terms of 20% of their annual returns. if u rip away chevron this is a fairly ey se where you just make congress had this question in mind in one place or auay replaces the be specific. with every domestic fishery they only gave it in

two instances. in both they said it can be no more than 2% or 3%. if you are arguing the statue is not ambiguouonthat question. if i arguing the best reading of the statute is at my client wins. if i have to, i would -- >> it seems were not contemplating the result. that may be right. you arng this is about a case whe there could be a number of interpretations. i don't think that is coming to grips with the chevron question. ihope it is. what i would say is exactly what i heard juickavanaugh say, which is i do not think there is a differt le in cases where agency is a party or if agency is not. in both cases you cannot get to a certain point and say this is hard. i think the law s n out. in both casesyou are supposed to take it all the way to cong up with your best answer. >> you were just saying the

principal answers the question. if it answers the question, i guess i don't understand how you even get to thechron issue . chevron that one you would give the same the. >> maybe you would, but nobody knows wherstep two against her ends. i mean i suppose now taking the hi om kaiser, which is about something not chevron usa of course you would apply the ofstatutory construction before you get to step the point is in every other case you apply those cannons. if you're not sure about the answeryou dust off the back and see if there are some other cannons. >> because you have no other option, what chrois itis a recognition that in rtain cases you plall those tools and the conclusion you come up with is congress hasn't spoken to this issue. u had no other option, you

are a court and there is a case before you, you try as hard as you can. even though you know you are basicallonyour own. when there an agency what chevron says is w there are two possible decision-makers. there e agency and there is the court. what we thinishat congress would have preferredthe agency to resolve this question. when congressional direction cannot be found, because of the agency's eerse. becae the agency's experience, because the agency unrsnds how this question fits within the statutory scheme. it is a question that the court could not do it. it is a question of on congressional direction cannot beound, who does congress want to do it? >> justice kagan , i do not agree with you that the law runs out, even though there is an agency there. i would give you this, if i did

i woulsaat that point let's give the tie to the citizen. let's nogive the tie to the agency. >> i don't think is what we would do. you will givethtie to the citizen and i to the agency. chevron is about hacongress want. you can call it fictional all u nt, and we have lots of prumions that operate with respect to statuty interpretation. this is just e of them. it is just sayingcongress understands as well as anybody different institutional's comparative attributes and rts. it does not want courts making, i mean it is law, but it is policy laden dgnts. ce congress cannot find direction. >> if we want to talk about what congress wants we probably should advert to the fact that we do have an amicus briefing in this case from the house. it does not want chevron. >> it has total ntl over

chevron. it can reverse it tomorrow with respect to any tur statute and with respect to at generally and it hasn't. for 40 years it has exceeded except for super recases. it has basically said this is the background rule. it gives us a default rule from which to write statute. we have ce -- accepted. >> i am not sure everybody in congress wants to overrule chevron. >> everybody in congress doesn't want to do everything. >> it is really can be for some meerof congress and not have to tackle on the hard questions and allow for thr friends to get them everything they want. evenifcongress did it, the president would be to. i think the third prlem, even more problematic, you get back to that fundamenta premise of chevron th wn there is silence or ambiguity we kw e agency wanted to delegated -- delegate to the

agency it is ficon and in a particular way. it assumes ambiguity is alwa delegation of. but it is not. mo often when ambiguity yes, i n't have enough votes in congress to make it clear. i wa tleave it ambiguous and that is how we are going to get over the hurdle. we will give it to myrids in the agency and they will take it from here. that is that with the eight -- a phenomenon we have major problems in society that are not being solved. instead of doing the hard work of legislation we have to compromise with the other side at the risk of maybe throwing a imary challenger. you rely on aexecutive branch grant to do what you want. it isothypothetical. >> you y we end up in gridlock, which we have w. what i am saying chevron is a big factor contributing. i would think the uniquely 21st- century phenomenof cryptocurrency would have been

addresd congress. i certainly would've thought that would've be te in the wake of the ftx debacle. it hasn't. why? because there is an agency head t there who thinks he already has thauthority to address this uniquely 21st-century problem with a couple of statues pass the 1930s. he's going to waive his want and say the words investment contracts are ous and that is want to suck all of this into my regularbit, even though when that same person is a professor this is probably a job for the cfdc. >> i was just going to say let's assume for the sake of argument that i agree that in 706 congress has spoken toth problem we are not applying a ctnal presumption. congress has told us we want the court ide questions of law. solicitor general in thla argument talks about how litigants will be lining up fo state -- cases decided under step two to reopen challenges to the agency's interpretation. what you have to say about the

destructive conseqnc of overruling? >> i think the solicitor general will be saying the exact opposite if this ur overrules this decision. what i would say is this court has moved away dramatically from certain methods interpretation. more dratilly than just we look at legislative history lesson we used to. implied causes of action as far as i can te our dad. that didn't mean that every decision that was decided in the battled days was overruled. >> that is a littledierent. those apply causes of actions, what the statute means. s is i do not apply to the cause of action or whatever. this would be different. the court would stbe saying it may not be the best, but the agcy's interpretation is reasonable. it does not settle in the same way that some of those old implied cause of action cases did. >> if you don't wantthe to be disruption all you have to do is make the prece vel of generality that you alluded to. i would inin every one of

these chevron cases the question is is the agcy's interpretation of the statute lawful? if the court has already held yes, i would think that would sele the matter. as i y a brief, the only reason i have any doubt is becausofbrand x. brand x is a huge embarrassment for the government and the government's friend. i looked through the amicusan i counted 13 amicus brief's . only two sided brand x. it will be nice for that decision tojust go away, wouldn't it? >> sorry, justice thomas. ugh if >> that absolutely keclear this is a reliance destroying doctrine. frkly if you said that chevron is over and all of those step two cases that re decided are going to have starry sizes affect cae of the level of generality point, you will begiving you stability to thla it will be improving stability. that is an important distinction from kaiser. the kaiser doctrine never had

its brand x moment where this urt make clear the agency can flip 180 degrees. indeed in kaiser itself it suggests thatheopposite. here with chevron we know this is a reliance destroying doctrine. here is another thing to think abt terms of kaiser. as i read the cot'decision in addition to the fact that we know it doesn't rely speak to chevron, i also read it as all th at the unit a special justifatn. i think we've offered special justifications in drov. special justification beyond the decision. i do not know of a case where you would defer when the relevant decision did not cite the relevant statue at all. this would be a different world if chevr nt in and russell wi 7 is that despite all textural indication forecloses review of statute. i ppose i would have to be here making every single starry decisis argument. that inowhat chevron did.

it did not mention the relevant patch you. i do not want to be seen as running away frothstarry decisis factors. i am happy to walk through all of them. i think all of them cut in our favor. thdecision is tremendously unworkable. nobody knows what biity is. even my learned friend on the other side says there is no formula. that is aboration of what the government said the last time, which is nobody knows wh biguity means. let's talk about reliance and talk about e brand x problems that are ryserious problems . i love the brand x case, brought their regulati provides a perfect example of the flip-flop that can happen but it is not my only example. erare amicus brief to talk about the national lar of relations were flip-flopping on everything. ask little sisters about stability and reliance interest tir fate changes from administration to administration. and then you get to the re world effects on citizens that justice gorsuch allud .

i would like to emphasize its effect on congress. the court was originally doing chevron it s oking only at a comparison between article two and articlthe. i think you got even that question wrong. it failed to think about th incentives it was giving the arcle on branch. that is what years of experience has shown us. in 40 years s shown that it is virtually impossible to legislate a angful issues and major questions, if you will. right now roughly half the people in congress at any gin point of want to have their friends in the executive branch. their choice on a controversial ise is compromised and rges a long-term solution at the cost of maybe gettina imary challenge of orange dad, just ca up your buddy who used to be your call stafr the executive branch now and have him give everytngon your wish list, based on a broad statutory term. myriends asked for empirical evidence, i think you justha to look at this or stkett.

it's been one major rule after another. itasn't been one major statue after another. i would've thghcongress might have addressed e loan forgiveness if it was such an important issue to one party in congress. i would've thought they would affix the eviction moratorium. i could go on and . they don't get addressed because chevron makes it so easy for them not to tackle the hard issues and forge a permanent solution. myfrnds on the other side also talked about this is great. it leads to uniformi ithe law. i do nothing that is in itself. ifitwere up to me, if you think uniformity was so great let'ha uniformity d e thumb on the scale of the side of citizen. the kind of uniformity that you get your chevron is something only the government can love every court in the country has to agree on the current administration's view of a debatable statue. you don't get the kind of uniformity you actually want, a stable decision to assess this is what the statutmes. >> mr. clement, can asd e

same question i asked mr. martinez abt y chevron was initially popular? people who were very sophisticated and had a epunderstanding of how judges decide what a statute means and a deep unrsnding of how administrative agencies work thought that chevron would be an improvement because it would take judges out of the position of making what were essentially policy decisions. were they wrong then and if not what if anything has change >> i think they were rtlly right. let me say what has chand d what hasn't, i.e. what the missed. what has changed is we have come a lo y in statutory interpretation. you know, if chevron was a response to some of the excesses of the d.c. circuit in the freewheeling days of the late 70s and the use of legislative history and oh, by

the y,he text of this statue appears in the margin of my opinn. i'm not going to talk about it again because i'm off to th races. i think the focus is much greater on the xtof the statute. once you regne that you recognize the problemdeferring at a certain point to the agencies. let's look at the track record of the agencies before this urt. if they are so expert they should be able to persua y in case after case that they are getting the statues rit. by my count and cato institute and their amicus brief brf since the court last friday chevron the administration is batting about 300. expertise is not all it cracked up to be. that is true even in the most complicated cases. look at the american hospital association case. i don't think you will find a statue that is more complicated. this court had no trouble unanimously y that you cannot have hospital chain specific pricing without first doing a survey. >> i don't know rather you can say we havenone.

>> i was going to say at no o s trouble to write a dissent. let me put it that way. i can use other examples. in the case where the court saysheon wasn't applicable because of a procedural defect. it split the corebut how did you decide the case? it had a tive cannon. do you think the labor department is the expert on distributive canon or do you think the cots are? >> thank you, mrclent. the answer from mr. martinez on several questions about what happens when you get rid of chevron in this case with skidmore. if gilmore is going to occupy a more prominent le going forward, i would like to know exactly what your understanding of that principle is? >> my understanding of get re consistent with justice kavanaugh is it is not a difference. rn call the doctrine of weight or

persuasiveness. as i undeta and i suppose the defect as well, i think the skidmore test allows you to consider the ig of the agency's views, but then consider if the somethg ey came up with right after the statue was paed so it actually sheds light on the meaning of the statue or is it something they didn't adopt until 20 years later? or did they get that e licy after the policy was passed and flipped it over 20 years later? l of that is something skidmore then account for the chevron has never been caused to account for. you can modify and try to add all of that, what i do think the chevron experiment has failed. >> it is usually describeasa deference doctrine. people lkabout skidmore deference. >> yes they do, and that puzzled me a little bit. i nto the dictionary and looked up deference. the most comm definition is yielding to the will of another. i think if that is the definition, you should not apply chevron skidmore rather in a way where you

actually say all right, this is super close. i think i have the right answer, but i'm going yield to the position of the executive branch. >> skidmore has been understood or said that the persuasiveness of the government's interpretation depends upon the circumstances and some of those you enumerated. call it what you will, that is what it is. >> i don't mean to be ic. i do think, get deference gets you to footnote 1 in a junior varsity way. i think that would be unfortunate. >> skidmore means if we think you are right we will te u you are right. the idea that skidmore is going to be a backup once you get rid of chevron , that skidmo means anythingotr than nothing. skidmore has always

en nothing. >> justice jackson, the earlier one would beto differ with you on that score. he thought it was quite important. i think if you okt the skidmore case itself, it took into account the ewof waiting time. ironically enough in that case said u can't have a bright line test one way or the other. the agency has looked at this and it's going to be more fa dependent. we can take that into account. in meof the situations you are going to be ab look at the agency's expertise and make a judgment th ts is in their favor and they have made some really odpoints. in other contacts with the the agency wants you to defer to his own view, which in this case we ran of money. it sure would be nice if we can impose a fine and continue to monitor these people and make them pay for it instead of us. >> justice thomas? >> i guess at am struck by,

mr. clemt,nd this follows from the skidmore thing. skidmore is not a doctrine of humility. chron is. chevron is a doctrine that says , you know, werecognize there are some ples where congressional progression has run t d we think congress would have one of thagcy to do something rather than the court. weaccept that. that is the best readi congress and also because we know in our heart hearts that agencies know things that courts do not. that is the basis of chevron. you taketh doctrine of humility and you put onop of it starry decisis, another doctrine of hulity , which is to suggest we not willy-nilly reversed things unless there is special justification. here kaiser said it is even mo than that. there is even more rean not to reverse something, because

there have bn supreme court decisions relying on chevron. cae there have been 17,000 lower her decisions relying on chevron. you are saying blowup one ctrine of humility, ow another doctrine of humility, and th expect anybody to think that the courts are acting like court. >> with respect, your honor, this court has on multiple cations corrected its own errors when it comes to statorinterpretation, how to deal with qualified immunity, implied causes of action. in the encino motor case there was a canon of construction that said exemptions the fl provisions could be construed narrowly. this court overruled an event that should have no role to pl in interpreting the flsa. d not run through the starry decisis factors. i don't knowwhher you call it humility or just clarity, but when the question is jucial methodology, i think it's very reared to ask congre fix your problems for you. i don't think you want to

invite or candor that particular fox into your heou to tell you how to go about interpti statutes or dealing with qualified immuni. >> in kaiser five justices, a majority of this court, make clear that our deferee with subject to normal judicial or normal principles of starry decisis. to the extent there was a ratcheting up ratcheting down, it ratcheted them up. in understood that deferenc decision supported was the bas for tens, hundreds, thousands of her decisions. o i am going to be at a disadvantage in debating what exactly kaiser health. the way i read kaiser is it said that you need a special justification beyond a decision . i think we have given you that in spades. kaiser did no wh all due respect, russell -- wrestle with the opinion. i thini n reconcile all of your law by saying when it is a

procedural rule orou made world of interpretation, maybe we look to the same factors. they do not apply with the same weight as they would if they were substantive result. that does make sense, at least in our view of the world, we drew lock from a bad terminology you don't overturn those rules. section 1982 stilan applied cause of action, 1981, those cases don't get overturned. >> justice gouch? >> o sson of humility is to admit when you are wrong. justice kolea, which took chevron, which nobody understood, to include this two-step rule and turned it in wt we now know and late in life came to regret that decision what we make of that lesson about humility? >> i do thk coidering particularly a methodogerror is part of judicial humility.

i think if you look at the stice scalia perez opinion, one of the things he said most clrl and said all along with our decision in chevn th heedless of section 706. if you're looking for a special justification to overturnan opinion i think it's got to be at the top of the list. >> thank you. >> justi kavanaugh ? >> a couple questions, first skidmore i want to say how i thought abt it. you tell me whether this is wrong. that it respects contemporary is -- contemporaneous and consistent interetions as evidence of the proper original meaning of the statute becaus that is common sense in statutory interpretation more generally. if it was contemporaneous and consistent it is mo likely to be correct. that is with respect, but the

word deferen, would not have used there. >> i think you have that exactly right. one of the virtues of lki at skidmore that way is it is nstent with the principle this court articulated in the isnumber -- christopher against ith case, sometimes the dustry isthe one with a consistent long-rm understanding goes all the way back and sheds light on the original meaning. it seems skidmore allows you to say that the instry says it has taken a position consistent from the benng and the agency flips 25 years into the enterprise, skidregives you the tools for saying all right, you are gointoose that case. >> right. in a g fference between skidmore and chevron is when e agency changes position every four years that is going to fill you chevron deference, but skidmore wi respect to that interpretation will drop out. it is not consistent an contemporaneous or conste

from the contemporanes aspect. >> absolutely. it is a matter of a differen if you look at some of the things justice scal id in the beginning when he was enthusiastic about the doctrine, he viewed the fact that agencies flip-flop as being an affirmative virtue. >> justice kagan raisesn important point about humility in tesof chevron. that is an important coer for any judge. the flipside is the other concern for any judge's abdication. to the executive branch running roughshod over limits estaisd in the constitution or in this case,by congress. i think we have to nd or that is why it's hard to find the right balance between restraint d tting the executive getaway with too much. on that front, there was questions earlierdo judges really rely on chevron?

>> i would love to speak to that. i think that is an important consideration. one of the emes in the firsment wararely get to chevron step two. there are attics. the most exhaustive survey of over 1000 cases by barnett and walker we cid on page 33 of the blue brief. if found course were rich to in 70% of the cases. thca institute brief, you might think things have gotten better because that was a longitudinal study. you might think things are getting better because have signal chevron on life support. ran the numbers from 2020-2021, it is still well over e time your average judge in the court of appeals isgeing to step two. the speech hasn't been dated, but as far as i know he still hasn't gotten to step two one. that is anunsettling of the

law, a disconnect that is very rd to get your fingers around. at least if one circuit says the state ans x and another y everybody n see that this court can decide the se. if course are deciding that on step twoin ways in a radically different don't know how you unearth that. i think that is another huge problem. >>f chevron was overruled i think your brief says we should ead and decide the statutory issue. can you spk very briefly to why? and it would also be a lesson as to how far jge will get astray by applying chevron. another problem with chevron i'll still try to be brief, it tends to focus on one or two terms. you lose the context of the statute. if you have the context of t statute and the fact the only other places that put these

kinds of fees on fisheries, they put a serious cap andy did it for the most well-healed fisheries or in certain circumstances, this is an easy ca. >> thank you. >> andusce barrett? >> can we he a host of cannons, clear statement rules, some are constitutional inir. the last argument about whether chevron should be thought of as a part of the package. she said chevron cld be distinct that cvron was unique. can you address tha >> i think she's right about atnd it sits throughout in an isld d that's a part of theeason to oveul it. i think all the oer cannons that i could think of are fully consistent with the no vote statutory interpretatio i might be missing one. but the ones i think of wn you're doing the construction, you take into account allf those cannons. chevron is the only one i know that says in a certain point, you just stop tha stuff and y sort of surrender even under

circumstce where they would keep gng only chevron does that. >> one last question. you said on our docket, we've had mtiple cases in which the have come up. do you think that chevron is g to solve that problem? in a lot of the cases,he have hung theirat on words like appropriate, you know, and the kind of language and you can tell me if y disagree, but when a statute uses a word that leaves room for discretion like apopriate and feasible and reasonable. so don't you think they will still continue to rely on words li that in ways that might not, you know, limit our emergency docket? >> i'm not so nai to say it is gog to solve all the problem with the emergency docket, but it is going to make it a lot beer sure, they would try to use mofy, which is bold in light of at&t, but whatever.

they picke some of those words, hat broad band case is coming here and that is a case that shouldn't be. to litigate whether it is agoing crypto contract just as they are confident that a.i. is going to get here because of the statute and it is more likely will say there i some scientific thing. but my own v of this is it's not a cure, but it's going to move things very much in the right direction. >> thank y. >> thank you. >> general, welcome back. thank you, mr. justice. and may it please the court. throughout t litigation at times this morning, petitioners have characterized thisas as presenting a fundamental question of t separation of powers a a test o article iii. will courts continue to say what the law is? but i want to make sure what doesn't get lost in thehuffle is thatetioners have made an

important concession that i think illustrates that the issue here is actually far narrower and their attacks on chevron lack merit and are unnecsa. the concession is this. petitioners acknowledgeongress can expressly delegate to agencies the autri to define terms and fill gaps. an imagine if the statute said they we asked to define the administrator. take both petitioners to give that up and recognize that is delegation and courts should respec that. the role of the cou in that circumstance is to make sure the agency has followed the procedur a stated within whatever oer bounds congress has set. and a of that compliesit the constitution, of course, because congress has the authority to delegate the gap authory to agencies andhe executive has core article i authority to fl in those gaps. that's the core exercise of the executive power. en the article threeourts

are just fulfilling their judicial rolhen they will give affects to what cones has done and their choic to rely on the agey in that regards. but i think wt all of this shows is the constitutional attacksn chevron and the suggestion that it is egregiously wrong, lacks merit. because there's no constitutional distinction betweenha kind of expressed delegation and the delegations regnized in chevron. congress can expressly invest in agency with the authority to interpret the la tough an expressed delegation and then they could do the same thing. especially in a world where congress has to provide the agency with the expressed authority to carry the statute into oration with the effectiveaw now we can debate whether they drew the right line in identifying exactly when these delegations have occurred. i think they got that rig for all the reasonsha i tried to explain this morning. t i think it is important to recognize that that deba doesn't have a constitutional dimension to it that will fall out of the equation and that it is jus a

question of wheer they drew that right le. if you recognize that and what is left over are the practical concerns thatav been raised about chevron and i don't want to show you the force of the ncerns that som members have articulated. but those concerns are manageable. the court could do in this case what it did in kaiser a it could clarify andrticulate the limits witut takinghe drastic step and that is the right thing to do there and that they will be calling a part of the rules here. in this case, they will decide toouiln favorite of retaining chevron. i welcome theou's questions. >> and how do we see the lence? >> and so i think itould be wrong to suggest that youan neatly categorize cases as those

involving silence and those involvg biguity. i recognize that you spoke to those terms and they were trying to be showing you where they directly resulted in the issue. and they are going to have to appoint to the rule and the directive from congress to put that into ict where it will be at least the baseline of this context. and that would help withhe authority and this is the perfect example as they said that the act here is silent on the issue of wth the industry could be required to pay for monitors. we will have four that we pointed to thatil undermind the authority andha it says that they can require the vessels tcay the monitor.

and it could include a private third party d the penalty provision that says in the circumstance where they have contracted with the privat third party and not paid. the agency can penalize. finally the authority to enact necessary and appropriate terms. so we don't think this is a case about that at all. >> yes, again, we are back to the same question that the chief had of mr. clement. that is exactly le the bread and butter of what we do every single day and we can resolve that. >> we think that the statute will be clear. >> the fact that you thi it is clear and they thought it was ambiguous should tell us something, shouldn't it? >> no, i disagree with that and actually if you look at what the dc circuit and the first circuit wereoing in these cases, they recognize the force. they are true and they will acknowledge that ultimately it couldn't conclude with

confiden tt the statute definitely authorized the anc explicitly. >> but you think it does? >> and yes, under step one, yet here we a. >> i don't think its unusual to think that ty have the clear interpretationfhe statute on its side andha the agency has acted reasonably. >> it's a trigger that nobody knows what it mea. let me ask you about t delegation as your example in the opening, which is interesting. and i totally understand that statute that does and youak up what rate you think. it might pose a delegation or it might not but we know that they delegated. that's one thing. what you're asking us to do is infer from that ambiguity that may not be the product of any intent at all. it might mean

more in some circumstances. and not that we should go to look at that context and other clues withint statute itself to determi who has the better reading, but they should always win that case. >> no, not at all. that will be a different tool to finish up. understand the delegation of one context, but i struggle to see if we should infer the friction of delatn. >> i disagree that there is a fiction of delegation in the circumstances that will trier chevron. at the outset i wt to make perfectly clear that of course the statutory context and structure is onef the important tools of interpretation tha a court should use as step one. ife're in a world where the cour can walk through those factors and ascertain that congress spoke to the issue, let me be very clear, we recognize that they should get us back to what congress was saying. if you're suggesting then in a world where congress hasn' actually spoken to the issue, the cou should give no respect

at all to the agencs interpretation. i disagree that that i implementing congress' intent. what they recognize in a circumstance where they haveot spoken to the issue, givenhe express grant of rule making authority to the agency. and necessarily recognize that the agencysoing to have to fill the gap along the way. it's perfectly sensi to consume they want the agency t do it. >> let me ask you about mhigan verses epa too. it is somewhere in between so forth and to come up with rules. about the meaning of the word an and essentially appropriate is necessary. did the court find there were outer boundaries there that can be exceeded, right? >> yes, absolutely. were not suggesting in that rl >> so you can do that, right? >> what i'm disputing is the idea the is also an answer

eier way, rathe than the discretion. >> there is an agency? >> yes, under review. if i understood my friend correctly today, he seems to suggest in allonxt, you could look and s they dictated that or an answer with respect to how did they find that source? what they recognize and what i think is just absolutely true as a matter of the on the ground realities and how they legislate, that congress dsn't actually decide all of these ises when congress hasn't decided it and se follow on, they will need to fill in the gap. it's a question of whether it should be the courts or the agency. there is a presumption here that they intended it to be the agency. but alway subject to the guardrails about making sure the construction is reasonable. >> mr. clement suggested that we should ignore chevron because it did not deal with 70 do y have a theory as to why they did not

address 706? and how do you respond to this part of the argument? >> yes. so my theory for why they did not address 706 is because 706 has never been uerood at any time. at the time it was enacted or in any of the eight deces since to have dictad the revie whe no inherit attention. it's further information on what the epa's own history shows. what i was trying to explain, is is a situation where the cour has recognized that t epa wasn't meant to create dramatic changes. it would haveee a dramatic change going from all the principals deployed and the case law including immediate leading up to the epa to a standard on a prospect o basis going forward would have been a big change in the relationship of how judicial reviews.

one mentioned that. no one suggested it was the right way. it's never h this court interpreted it. and justice barre i response to your questnsbout the epa, you know, it's not a though this is a one off decision. the court has had any number of decisions over 70 applyin chevron. i think in each and every one of those, it's important to recognize there hasn't been it this kind of attention between the epa and chevron itself, which further shows the court's own understanding of section 706 is entle to a waive here. >> i have a qstion about the relationip between brand x and your suggestion that w kaiserrized chevron essentially. i understan bnd x to say a court must leto of its best teretation of the statute if they advance in alaible one. one way to handle this is say we sd in the kaiser context that n use all the tools and ce up with your best

interpretation. wh should we take on brand x? >> if you understand brand x to hold that the court thinks it has the best interpretation and figured o what congress was saying about this issue and congress spoke. nevertheless has to adopt an inferi ierpretation, then at inconsistent with our approach. we don't read brand x tt way. i understand brand x to be stinguishing between step one and step twooldings. so if there is a step one holding where, in fact,he court has got it at the end of the daynd recognizes that congress spoke to the issue, ers no room under brand to let the agency come alongnder the fact and say they sul be understood in some difre way. it's only in the circumstance where there was chevron granted under step two. a part of that is recognizing that's becausehe statute was interpreted at the first time to not actually supply and answer dictation by congress. >> they have the best awe that it is a step to question

and it will seem to me that having the best answer will suggest that you engage in statutory interpretation that came up with your bt answer that might be really hard. so sometimes if the court outside the agency context confronted the difficult quti of statutory interpretation then y might say look, i'm 90% confident or i' 95% confident. but i mean i think your reading of brand x might depend on the trigger for ambiguity is, right? >> i do think that it will be clearl darcating the line between step one and sp two holdings, so at least the res of the road are clear with respect to wn the agency might have been granted to revit their prior conclusion. ifoue sgesting there's a way to rebrand brand x and factori into the equation the possibility that they meant to delegate to the agency that there is a better interpretation, theest interpretation that congress resolved it. jt don't think that you would everet into the brand x scenario. that sounds like ruling. i take the point thathe are some inherent lackf precision

in a term likembuity. that's not something that's uniquely created by chevron, of course, therere triggers in the law and all kinds of context. but it's also that kind o thing that might be wearing you. it's not anything that's cured. as i wasing to justice kagan in the first argument, i think it'll open up the world where there is a lot of inconsistency in how judges are applying the principles i the casf ambiguity. >> on that point,ome of the briefs pnt out the experience of thetates with chevron and some don't have chevron and other states haven't h something like chevron, but eliminated it in recent years and decades, and they are experienced, theyay, has shown it's workable in such regime. so i just want to makeur you can respond toha >> yes, so my understanding is about half the states still have something, a kin to a principle of indifference or a variant that looike chevron. but i acknowledge that some

states have abolished any indifferens. i do think there is a lot less concern at thetate level about the lack of uniformity or consistency. sonef the values that chevron implements and recognizes for why they would prefer for the agency to b able to set these rules and for the courts to respect that is the value of ensuring there are uniform rules throughout the country. i don't thit same experience right now exists in the state level. anell, a lot of the states and the political responsibility could differ as well because many state court judges are elected. >> did i understand you in response to the question for justice thomas to say chevron doesn't apply to constitutional questions? >> yes, it is only a doctrine that applies in statutory interpretation. >> it could have an effect on that. does it apply in tt situation? the department of education will have some rule. this will aly to all schools,

you know, and it could apply to religious schools because this is how we interpret, you know, whatever the impactf the rule is. when we interpret it that way, we don't think that there raise any free exerce oblems. so is there a evn difference there? >> i think if a particular interpretation creates serious constitutialroblems, then they avoid instances. one of the traditional tools thathe court could consult in order to understand if congress is up to the issue. >>he agency says they don't think this causes a particular constitial problem. that is our expertise about how we apply this prosi. given that, we think there is no free exercise probl. >> no. a court would not defer to that. this is all hpeng in step one. i think this is a part of the pres if the court determining whether congress spoke to the issue and the crt has been veryle. the difference doesn't come in at all unless you get to step two. the agency views they deserve the chevron difference or you know, its take on one of those

step one issues. it's gti any difference in that stage of the case. i do want to te another shot at trying to explain why i believe petitioners are wrong to characterize chevron a resting on a fiction. what theyave tried to say is this doesn't really reflect what congress is intend iting. but i see three pblems with that. the first i i think that acal looking attrom a matter of first principles, there is a lot of merit and wait that in a situationhe are good reaso f congress to want to vest with this kind of authority. and it is t recognition that agencies of necessity are going to have to fill in those gaps and they are complex a technical and they are going to require the agency to draw on their long standing experience with the program and the

expertise that's accumat in working with thatndustry that will also encompass i think inheritly some policy. the agency cld run a decisn making process in doing this. chevron only appliesn circumstances where there is a sufficient level of formality d th it is usually the rule making. that's the process where they could come in and tell the agency he are our views. here is what you should think about. >> and thatote point is very poant it seems to be your argument. because tt rationality that they would want toav the governmt rather than an opposio equally rational that it would want to favor the indidls. and if you asse that the government has provided everybody a notice and a opportunity to be heard. bu often the government will seek theifference for adjudications between individual parties and then apply that to

everybody without notice to them. or difference for interpretive rules for which no notice and commentnd let alone formal rule ming for the proceedings is required. and so there are many circumstances in which they llee the difference for a view of the law that affected parties would have no chance to be heard about. when do we do tt? >> and with respect t the category, it is true that they have not ruled out that ty could receive the appropriate circumstances. >> and so you would have u take that? >> i wouust have them reiterate. and it is not as though any is going to. >> nobody knows what that means. and they would complain about that too and so i dotnow with that and is that another factor? >> it is another important check

of ensuring there is a delegation here and that they have used that appropriate procedure. >> and so they will be out? >> they would rse a much harder question with that and do they rule in or out? >> they have not ruled them o and if you thought -- >> what would you have us do? >> and their intprive rules is my question. >> i don't think that you could treat theas class. and the inrptive rule. >> setimes they are required and sometimes they aren't. and you keep those in, i'm sure. >> yes, we certainly think that they will have that core application. its not the same ability to take these input from them,ut the court has emphasized where it has been applying chevron that there is a possibility of the centralized decision making process in order to ensure the agency is gathering the facts a they will have the tools in their

disposal, and that it is to hav them do it through the litigation. the very least, it is easy to see why they might think thats not as good of an alternative. and that they ul come out of nowhere with respect to that party. we will have a brief from that small business. everybody. >> and until it i recognized. >> they could have impacts on the parties that are outside and even that person who is bound by the president could appeal it. and that will be under your vw and that man people without notice, any tice or any chance to be heard are bound. >> and so my concern what ias focusing on, with respe to litigation is that it is not as though every party will stand to get back by those cases to know

about it. d look at the brief that was filed. and of course they won'tave that notice and when that government comes for them, they get to take t case to court. >> and congress has often expressed a preference for not having these issues resolved piece byie in different courts around the country. >> and that is provided f formal and informal rule making and adjudications. is most ruleshat will be resolved that way. for a long tim those processes have not been used, and they rely on the rule making. really now today, perhaps as a pruct of chevron. and agencies that have advocated that and moving more and more towards interpretive rules, where they don't have to provide notice.

>> and i think that it circles us back to the fact they do n suggest that those rules are going to trigger the differences. so at least in that ce that they have looked at from the agency and it is an important process. >> and on thero, they would talk specifically about that i particular and how that agency will move from that post fairly often. there's a concern raised there and that is a situation that you cannot suggest your behavior ahead of time necessarily bed on the new rule and the new changes and what this has done in that case tt will affect the people that didn't have a notice or any response to that brief or scenari or you want to tell m why that's wrong? >> and that is theet of concerns andha they will have to justifyt and whatever tools

they are cruising. and that they are going to have to justify what they a doing. and in particular, they have focused a l on the idea and that ty are changing their minds and the burden that they will nee take account for the interes and they will get put into state farm, i think, but with respect to that, they could te those kinds of consideration into account. >> thank you. >> did you want to finish your aner on what you would say to your friend's view of intent? >> so i was trying to dend as a matter and tt it is the first ordernsr on this and that there are often really gd reasons why they would want an expert agency to take that first crack in filling the law and there is io way around it and that tyave got to do it and thourt has said that they are interpreting them underway

and what that law means. and thatn this situation where there is more doubt and that is what congress wld have expected that it is a precedent from the court. it's not like they have flown under the radar and they are unaware of it andhe don't realize it's o tre. and what they are doi. this is one of the mostigst decisions from that court andn particular that i would think that the ien will become all the more sound because they have not chosen to disple it and that it will trigger that strong form of story that they applied in kaiser when they recognin that situation whereongress is actually the best constitutional actor to do something about it. and that it doesn't matter that theyht to change them in any kind of way.

>> thank you, council. >> i do have one more. this is notn that intellectual e request,ut how do you respond to their point about the interpretation that ts particular statute and his reliance on the theory that congress definitely, whent capped the b industry paying 2%, 3%, whatever the number is, they would not have wanted small fiermen to pay 20%? >>nd so we will have a range of reaction to that and i was suggesng that we think there is a lot in this statute to regulatory authority here and

that specificallyontemplates that the vessels might have that relationship with the monitors an therefore might be in situation where they have not paid and that there can be rcumstances in that footnote and the way that t other two monitors, ty were government monitors, correct? >> and so this is our program that my friends have relied on to see the negative statute and two of those will apply and so it is very different andhe pay fees to the government includgntering into that relationship and those contractors that will pay for

administrative expenses and that program operations in this way. it might be possible that they will move in and be required t contract with those monitors, and that is the whole thing a it doesn't work because the will put that penalty in that section of the act that wil apply to those vessels. it is meant to tack on to that program. that will be inexplicable. they say to wrap ts up, it's unheard of and i want to be clear that they are latching on to a part of theul that acknowledged that the costs could go up and they acted in response to that and createdo

respect some of thesss in these cases in that range. so this is something that they could look at and review that they were arbitrary for that st and rightfully so. >> and i just wanted to ask what would that mean? would it mean doing what they did to that difference? and would there be adjustments that would be necsa? would they want to go further in an rpect? and what does it mean to chevron? >> and so i think that the urts in this case that the will have some conrn about the issues,hey couldo four critical things, which will draw heavily and look diffent in particular. they will need to reemphasize that analys. this is drawn from kaiser as i mentioned before as we he seen

the lower courts. and i respect to this. and that they d't want to weigh that fg and don't give up just because of the statute at is hard to parse and instdhere are a lot of hard questions that will be sold to reveal their intent if they apply all the tools and they really exhaust them. so that will take care o the whole category of cases at step two, the court could agn do what they did in kaiser, which is to reinforce that reasonableness is not anything that will go and you can see them saying at times that the governmentil win and that is not the standard. even at that stage, i is differenal but the court should benforcing any bounds in that statute a makingur they have not transgressed those. at the third thing they could do and that they will get off that ground where you have that agency being directly empowered byoness to speak with the force of law and then

exercising appropriately the level of authority in implementing the statute. so i think that is an important thing as wellhat there are certain cte in which the agency is not actually speaking with the force of law. that will be fitting with the delegation that they have provided. this is a ltl bit different from kaiser, to emphasize that is always important to look at any indication that chevron do not mean to apply. wh i'm thinking here of our things like situatis where the nature of the stutory question as the court h said in other cases, it is not one that you would expect themo give to the agency and through the major queson and i don't want to rule out other scenarios. and cones can adjust and react and take statute specific steps and support should pay attention tohat and they should not dictate to this and that instead it is rebuttable.

>> and is there sething about that matter now? >> and so i think that alrea, they are in an area whe they are under bden to duff and that they made clear where they needo explain why those shouldn't alter wt they are doing in that kind o revised approach. and they alsoreently if it has come from a rule making will have to run that process all over again and that it will take a substanal investment of the agency resources. inhat context too, they could make sure the agency is following the procedural requirements to ensure that it has informed decision making. in the e of the day, if they could run that gauntlet, then the fact ty have some discretion to change their approach isot something to say

it is kind of a bug in that statute and it i a feature where congress w want to them the ability to adapt and to new information or the experience that is accumulated under the prior program. >> justice gorsuch justice barrett? >> tank, council. rebutt? >> just a few point first my friend started with express delegation and it will show a the problems with this impliedelation. what they will do is delegate implementing or exercising the authority and its not do what they will report to do, which is that authority, but you can put limits on the tax a again, it is a perfect example t and they do rse that concerns. you can che for that as well.

and to that principle than that lence, and in terms of, you know, this premise that it is entirely fictional and that in mo cases its something that they did not have enough votes to make it clear. an everytate has a binary swer. there are statutes like that and there are things that the salespernho is involved in the servicing of cars, i say s, but you can say no and it is bar but you can't tl the two apart. at a certain point, theyoo ambiguous. but you know what can tell the twopa? that the construction will find out what tt word means and elasticity. telecommunication service is not.

an ty can do the job. now let me say one thing about the mystery of why section 706 did not appear in that decision. there i a really easy answer and the courts sort of stumbled in these announcemts that you shodo about that andt was a mistake. that is a special justification to revisit the decision a to get theecision right. let meay one word about expertise. eyo not have to go hand in hand in aay that will preclude that revie we have the courtf international trade. they all deal with technical spialized issues. every one of them, the legal questions are reviewed. and that is the basic understanding with the statute like section 706. lastly let me say this. you cannot kaiserrize the chevron doctrine without overruling brand x. the fact you canake into

accot the agency had flip-flopped and it was a part of the rational with kaiser before you applied it and that is a feature, my friend andhat is a feature and you can't kaiserrize it without overrin brand x and that it just went out the window and we might as we