>> we will hear argument next in case 22451, local right enterprise versus raimondo. >> mr. chief justice, may it please the court, this case -- mmercial fishing his heart. space on board the vehicle vessels are tight and margins are titer still. therefore, for my client having to carrfederal observers on

board is a burden, but having to pay their salaries is a crippling blow. congress recognizes muchby strictly limiting the circumstances in which domestic shg vessels can be battle withmonitoring costs and capping them at 2%-3% of the value of the catch. the agcyshowed no such restraint reirg monitoring of 50% of the trips and a cae of 20% of their anal returns. nonetheless the court deferred to the agency because it blew -- view the statue assignment. there is no justification for ging the tide to the government. both the apa and nstitution of what his principles call for de novo review asking only what is the best reinof the statute. asking instead is the statue ambiguous is fundamentally misguided. the whole point s bring clarity and not to identify ambiguit the government defends this pracce not is the best ring of thapa by invoking stte

sizes. that is doubly problematic. the issue is only chevron's methodology and title to reduce the effect. we have no beef with the chevron clean air act hoin and we cannot take issue with apa holding because it fail to mention that statue. second, all of the factors poininfavor of over rudy -- overruling the methodology, unrkle as its threshold is hopelessly ambiguous. it is also a reliance destroying doctrine, because it is a tae agency flip-flopping. the reality here is the chevron to epas to go and should be replaced with only one questi, what is the best reading of the statue? i welcome the course questions. >> you've heard the governme for the generals argument with the use of ndamus -- mandamus

as a basis for deference. could you comment on that? my understanding of mandamus is thdu has to be clear before it actually lies. i would like your comment on that. absolutely, justice thomas. i thk ndamus is a critical recognition of the fact that coress can remedy the availabilities in particar circumstance that is the right way to undeta the mandamus standard. that is que fferent from telling the court they are to engage in as congress clearly did. but then say the a point in which you cannot actually give usthe best answer because yoardeferring. i think it is important from a separation of powers purpose understand it is not as remedies, there is an acunbility difference. i suppose congress could decide are going to go back toa world where the only review of action is mandamus. congress would then be fully reonble for that highly

unpopular decision. that is the ffence, the fundamental difference from a separation opors stamp between a mition remedy and specifically telling the court in the apspifically you have the interpretive authority over statues no less than constitutional sues, but then overlaying a doctrine that says what we are doing is interpretation. that is the critic tng about the interchange between footnote 9 and footnote 11. footnote 9 tells you as clearly can what you are doing a statutory interpretation. in footnote 11it says that a certain point you stop doing statutory interpretation, even thoughyothink there is a better answer. you refer to a different branch of government. it is not the branch the framers gave the interpretive authority two. it is anch the framers gavethe implementing authority. i think from that stan chevron is a fundamental and egregiously wrong decision th gets it wrong on the basis of separation of powers. >> there is such a contention

in this. interpretive authority means discretion. it means there are multiple meetings that you can take from something and someone has to choose among those meetings. it seems like mospeople agree if the statue usesasonable that congress is delegating e definition of reasonable to the agency. the agency is deciding what is reasonable within some outer limits either set wiin the statue or within the law. the point is, it is great etic, mr. clement, but we do delegate. we have recognized allegations to agencies from the beginning of the founding of interpretaon i am at a ss to understand where the argument cos from. >> i think there is a difference

between recognizing discretion and recognizing delegation. there are certain ory terms as you yourself went out that properly construed by the courts definitively would give the agency a realm discretion in which to operate. there are other terms in which its ally a binary question. the fundamental feeling of 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 telecommunications service. it might be hartofigure out which one, but there cannot be one of the tuesday mx on a thursday >> wait a minute, it may binary to you. i do know with the development thnology and with the development of how that implemented in terms of transmission and the internet that over time that is going to change.

the same issue even in the case that we are in right now, there were two areas the congre look that and you that -- reviewed for easy travelfo obvis asons. there is very little outside once those ships leave that the u.s. governntan do to them. the other, i think it was the rtpacific area, but the poinisthat doesn't mean that similar obms didn't arise later and atthe broad words giving the secretar the power to monitor and implement measures to ensure that his conservation goals were being followed wasn't given to the ency. those are the facts and what we should be looking at in my judgment. is thi measure commensurate with what drove a similar ase, not identical, in the

hetwo examples. the agency should have fit crack at that. if they are not similath court will look and say your decionas arbitrary and capricious. if they are similar we might say okay, this is all right. i don'kn the answer. we really haven't dug into that. it is just a point that i am making, which is things change on the ground. a definition you give today may noho up to new facts. >> backs do change on the ground. that is probab pbable chevron and brand x . if there is a difficulty in classifyin broadband today, the difful to get the statue was last passedin 1996. going out of 2023 broadband is a 1996 infoatn serviceor 1996 telecommunications services the granddad a

problem. it does have a binary answer. brgi it home to the statue, what i would say is if you do thchevron ambiguity test if i never like a pro itin the statue or maybe for some people carry. i think that one is pretty clear. to say that rdis ambiguous want to go to step two. but if you look at the at as a whole. if you look att e way you would in any other context, i think what you wod e if this is a classic case, i forget the exact phrase. the point isyohave a situation that in the worst fishery in the country congress that you may not not must-he monitors paid for by the industry. but if you at you must have the fee at 2%-3% of the value of the tc a congress that did that with e st well healed fishery in the nation, i do nothing possibly cvethe authority to the agency to say with a much different fishery in the atlantic where it'sall business people, where going to let you do effectively the same thing, but we are going to let

you do it to the turn -- terms of 20% ofthr annual returns. if you strip away chevron this is a fairly easy case where you just make congress had this question in mind in one ac 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 guing the atue is not ambiguous on that quti. if i am arguing the best reading e statute is that my client wins. if i have to, i would -- >> it seems were not contemplating the result. that may be right. you are saying this is about a case where there could be a number of interpretations. i don't think that is coming to grips with the chevron question. >> i hope it is. what i would say ctly what i heard justice kavanaugh say, which is i do notk

there is a different rule in cases where agency is 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 has run out. in both cases you are supposed toake it all the way to coming up with your best answer. >> you were just saying the principal answers the question. if it answers the question, i guess i don't understa w you even get to the chevron issu. chevron that onyo would give the same in the. >> maybe you would,bunobody knows where step two against her ends. i mean suose now taking the hits from kaiser, which about something not chevron usa of cour you would apply the canons of statutory construction before you get to step two. the point is in every other case you apply those cannons. if you're not sure aut the answer you dust off the back

d see if there are some other cannons. >> because you have no her option, what chevron is it is a recognition that incertain cases you apply all those tools and the conclusion you come up with is congress hasn't spoken to this issue. if you had no other option, you are court and there isa case before you,you try as hard as you can. even though you know yoare basically on your own. wh there is an en what chevn says is now there are two possib cision-makers. there is the agency and there is the cour what we think is that congress would vepreferred the agency to resolve this question. when congressional direction cann be found, because of the agency's expertise. because of the en's experience, because the agencyunderstands how this question fits within the statorscheme. it is not a question that the

court could not do it. itquestion of once coreional direction cannot be found, who does congress want todoit? >> justice kagan , i do not agree with you that the law runs out, even though thereis an agency there. i would give you this, ifi did i would say at that point let's give the titohe citizen. let's not give the tie tothe agency. >> i don't think is what we uld do. you will give the tie to the citizen and i to thagcy. chevron is about what congress want. you n ll it fictional all you want, and wehave lots of presumptions that operate with reecto statutory interpretation. this is just one of them. it is just saying congress understands as wellas anybody different institutnas comparative attributes and virtues. it does not want courts making, i mean itis law, but is policy laden judgments. once congress cannot

find direction. >> ifwe 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 control over chevron. it can reverse it tomorrow with respect to any titular statute and with respect statue generally and it hasn't. for 40 years it has exceeded cept for super rare cases. it has basically said this the background rule. it gives us a default rule from which to write statute. we have except -- accepted. >> i am nosure everybody in congress wants to overrule chevron. >> everybody in congress don't want to do everything. >> it is really can be for some members of congress and not have to tackle on the hard

questions and allow for their friends to get them everything they want. even if congress did it, the president would be to. i think the third problem, even more problematic, if you get back to that fundamental premise of chevron that when there is silence or biity we know the agency wanted to delegated -- delegate the agency it is fictional and in a particular way. it assumes ambiguity is always delegation of. but it is not. more often when ambiguity yes, i don't have enough votes in congsso make it clear. i want to leave it ambiguous d at is how we are going to get over the hurdle. wewill give it to my friends in the agency and they wilta 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 hark of legislation we have to compromise with the other side at the risk of maybe throwing a primary challenger. you rely on a executive branch grant dwhat you want. it is not hypothetical.

>> you say we end up in gridlo, ich we have now. >> what i am saying chevron is a big factor contbung. i would think the uniquely 21- century phenomena of cryptocurrency wod have been addressed by congress. i certainly would'vethght that would've been true in the wake of the ftx debae. it hasn't. why? beusthere is an agency head out there who thinks he already ha the authority to address this unue 21st-century problem with a couple of statues passed in the 1930s. he's going to waive his want and say the words instment contracts are ambiguous and that is want to suck al this into my regulatory orbit, even though when that sam person is a professor that this is probably a job for the cf was just going to say let's assume for the sake of argument that i agree that in 706 congress has spoken to the problem we are not applying a

fictional presumption. congress has lds we want the court to decide questions of law. solicitor general in the last argument talks about how litigants will be lining up for state -- cases decided under step two to reopen challenges the agency's interpretation. what you have to say about th destructive consequences of overruling? >>i ink the solicitor general will be saying the exact pote if this court overrules this decision. what i would say is this court has moved away dramatically from certn thods of interpretation. more dramatically than just we look at legislative history lesson we used to. implied causes of action as far as i can tell our dad. at didn't mean that every decision that was decided in the battled days was overruled. >> that is a little different. those apply causes actions, the court was saying this is what the statute mean i do not apply to the cause of action or whatever. this would be ffent. the court would just be saying

it m t be the best, but the agency's interpretation is reasonable it does not settle in the same way that some of those old implied cause of action cases >> if you don't want there to be disruption all you haveto do is make the precise level of generality that u alluded to. i would think in every one of these chevron sethe question is is the agency's interpretation of the statute lawful? if the court has alady held ye would think that would settle the matter. as i say in a brief, the only reason ha any doubt is because of brand x. brd x is a huge embarrassment for the government and the government's friend. i looked through the amicus and i counted 13 amicus brief's . only two sidedbrand x. it will ce for that decision to just go away, wouldn't it? >> sorry, justice thomas. laugh if >> that absolutely makes clear this is a reliance dest doctrine. frankly if you said that

chevron er and all of those step two cases that were decided are going to ve starry sizes affect because of the level of generality in you will be giving u stability to the law. it will be improving stabilit that is an important distinction from kaiser. thkaer doctrine never had s and x moment where this court make clear the agency can ip180 degrees. indeed in kais self it suggests that the opposite. here with chevron wekn this is a reliancedestroying doctrine. here ianher thing to think about in terms of kaiser. as i read the court's decision in addition to the fa tt we know it doesn't directly speak to chevron, i alsoad it as all this at the unitspecial justification. i think we've offered specia justifications in droves. 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 bea fferent world if chevron went in and russell with 706 is that despite all xtural indication it focles review of statute. i suppose i would have to be here ki every single starry cisis argument. that is not what chevron did. it did not ntn the relevant patch you. i do not want to en as running away from the starry decisis factors. i am happy to walk through all of them. i think all of them cuinur favor. the decision is tremendously unwoab. nobody knows what ambiguity is. even my learned friend on the other side says there is no formula. that is an elaboration of what the governme id the last time, whic nobody knows what ambiguity means. let's talk aboureance and talk about the brand problems that are very serious problems . i love the brand x se brought their regulation provides a perfect example of the flip-flop that can happen, but it is not my only example. there are icus brief to talk about the national labor of

relations were flip-flopngon everything. ask little sisters about stabily d reliance interest as their fate changes from administraonto administration. and then you get to the real world effects on cize that justice gorsuch alluded to. i would like to emphasize its effect on congress. the court was originally doing chevron it was looking only at a comparison beeearticle two and article three. i think you got even th question wrong. it failed to think about the incentives it wasgiving the article on branch. that is what 40 years of experience h own us. in 40 years it has shown that it is virtually poible to legislate a meaningful issu and major questions, if you will. right now roughly half the people in congress at any given point of want to have the friends in the executive branch. their oi on a controversial issue is compromised and forges a long-term solution atth cost of maybe getting a primary challenge of orangedad, just

call up your buddy who used to beyo call staffer in the executive branch now d have him give everything on your wish lis based on a broad statutorte. my friends asked for empica evidence, i think you just have to look at th or stockett. it's been one major ruleft another. it hasn't been one major statue afr other. i would've thought congress might have addressed the loan forgiveness if it s ch an important issue to one pay in congress. i would've thought they would fix the eviction moratorium. i could go on and on. they don't get addressed because chevron makes it so easy for them not to tackle the hard issues and forge a permanent solution. my friends on the other side also taedabout this is grt. it leads to uniformity in the law. i do nothg at is in itself. if it were up to me, if you think unorty was so great let's have uniformity and the thumb on the scale of thsi of citizen. the kind of uniformity that you

get your chevron is something only the government can love. toagree on the current ry has 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 whatthstatute means. >> mr. clement, can asked the same question i asked mr. martinez about why chevron was itially popular people who were very sophisticated and had a deep understanding ofhow judges decide what a statute means and a deep understanding of how administrative agcies work thought that chevron would be an improvement because it wod take judgesouof the position of making what were essentially policy decisions. werehewrong then and if not what if anything has changed? >> think they we partially right. let me say what has changed and what hasn't, i.e. wh the missed.

what has changed we have come a long way in statutory inrptation. you know, if chevron was response to some of the excesses of the d.c. circuit in the freewheeling days of the late 70s and the use of giative history and oh, by the way, the text of this statue appearinthe margin of my opinion. i'm not going to talk about it again because i'm off to the races. i think the focuismuch greater on the text of the statute. once you recognize that you recognizthe problem feing at a certain pot the agencies. let's look at the track record ofhe agencies before this court. if they are so expert the should be able to persuade you in case after case that they are getting the statues right. by my count and cato institut and their amicus brief brief since the court last friday chevron the administration is batting about 300. expert not all it's cracked up to be. atis 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 say thatu cannot havespital chain specific icing without first doing a survey. >> i don't know rather you can say we have none. >> i was going to say that. no one was trouble to writ a dissent. let me put that way. i can use other examples. in thca where the court says chevron wasn't applicable because ofa procedural defect. itsplit the core 5-4, but how did you decide thcase? it had a definitive cannon. do you think the labor department is the expert on distributive canon or do you think the courts are? >> thank you, mr. clement. the answer from mr. martin several questions about what happens when you get rid of chevron inthis case with skidmore. if gilmore is going oupy a more prominent role going

forward, i would like to know extly what your understanding of that principle is? >>y understanding of get more consistentitjustice kavanaugh is it is t a difference. turn. call the doctrine of weight or peuasiveness. as i understand and i suppos the defect aswell, i think the skidmo tt allows yoto consider the weight of the agency's views, but en consider if the something they came up with right aftee statue was passed? so it actually sheds light on the meang the statue or is it something they di'tadopt until 20 years later? or did they get that one policy after the li was passed and flipped it over 20 years later? all of that is something skidmoen account for the chevron has never been caused to account for. you can modify it and try to add all of that, what i do think the chevron experiment s failed. >> it is usually described as a dereedoctrine.

people talk about skidmore >> yes they do, and that d me a little bit. i went to the dictionary and looked upderence. the most commondefinition is yielding to the will of another. i think if that is the definition, you should not apply chevron or 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 to yield to the position of thexutive branch. >> skidmore has been understood or said that the persuasiveness ofhegovernment's interpretation pes 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 pedantic. i do think, get deference you to footnote 11 land in a junior varsity way. i think that would be unfortunate. >> skidmore means if we think

you are right we will tell you you are gh the idea that skidmore is going to be a backup once you get d of chevron , that skidmore means anything other th nothing. skidmore has always been nothing. >>justice jackson, the earlier one would beg to differ with you on that score. he thought it was quite poant. i think if you look at the skidmore case itself, it tk into account the view of waiting time. ironical ough in that case said you can't have a bright netest one way or the other. the agency has looked at this and it's going to be more fact dependent. we can ta tt into account. in some of the situations yo are going to be able to look at the agency's experti d make a judgment that this is in their favor and eyave made some really good points. in other contacts with the the agency wants you to defer to

his own view, which in this case is we ran out of money. it sure would be if we can impose a fine and continue to monitor these people and make them pay r it instead of us. >> justice thomas? >> i guess what i am struck by, mr. clement, and this follows from the skidrething. skidmore is not a doctrine of humility. chevron is. chevron is a doctrine tt says , you know, we recognize there arsome places where congressional progression has run out and we think congress wouldhave one of the agency to do something rather anthe court. we accept that. that is the best reading of congress and also because we know in our heart of hetsthat agencies know things that courts do not. that is the basis of chevron. you take that doctrine of mility and you put on top of it starry decisis, another

doctrine of humility , which to suggest we do not willy-lly rers things unless there is a special justification. reaiser said it is even more than that. there is even more reason not to reverse somein because there have been 70 supreme court decisions relyinon chevron. because there have been 17,000 lower her decisions relying on chevron. u are saying blowup one doctrine of humility, blowup another doctrine of humility, and then expect anybody to think th e courts are acting like court. >> with respect, your honor, th court has on multiple locations corrected its own errors when comes to statutory interpretation, how to deal wi qualified muty, implied causes of action. t encino motor case there was a canon of construction thataiexemptions the flsa provisions could be construed narrowly. this court overruled an event that should have no role to

play in interpreting thflsa. he did not run through the starry decisfactors. i don't know whether you call it humility or ju arity, buwhen the question is judicial methodology, i think it'serreared to ask congress to fix your problems for you. i don't think you want to invite or candor that rtular fox into your henhouse to tell you w go about interpreting statutes or deing with qualified immunity. >> inkaiser five justices, a majority of this court, make clear that our deference with subject to normal judicialor normal principles of starry decisis. to the extent there was a ratcheting up ratcheting down, it ratcheted them up. in understood that deference decision supported was the basis for tens, hundr thousands of other decisions. >> so i am going to be at a dvantage in debating what exactly kaiser health.

the way i read kaiser is it said that you need a special justification beyond a decion . i think we have given you thatinspades. kaiser did not, with all due respt,ussell -- wrestle with the opinion. i think i can reconcile all of your law by saying when it isa procedural rule or court made world of interetion, 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 terminyou don't overturn those rules. section 1982 still has an applied cause of action, 1981, those cases don't get overturned. >> juste gorsuch? >> one lesson of humility is to admit enyou are wrong. justice kolea, which took chevron, which nobody understood, to include this two-step rule d turned it

into what we now know and late in life he came to regret that decision. what we make tt lesson about humility? i do think reconsidering particularly a methodology error isarof judicial humility. i do think if you ok at the justice scalia perez opinion, one of the things he said most clearly and said all along with r decision in chevron with heedless of section 706. if you're looking for a special justification to overturn an opinion i ink it's got to be at the top of the list. >> thank you. >> justice kavanaugh ? >> a couple questions, first on skidmore i want to say how thought about it. yotell me whether this is wrong. that itrespects contemra is

-- contempones and consistent interpretations as evidence of the proper original meaning of the statute because that is common sense in statutory interpretation more generally. if it was contemporaneous and consistent it is more likely to be correct. at is with respect, buthe word deference, i would not have used there. >> i think you have that exactly righ one of the virtues of looking at skidmore that way isit is consistent with the principle this cot ticulated in the crisp number -- christhe against smith case, sometimes the industry is the one with a nstent long-term understanding goes all the way back and sheds light on the original meaning. it seems skidmore allows you to say that the industry says it has taken a positi nsistent from the beginning and the agency flips 25 yearsin the enterprise, skidmore gives you the tools for sayi a right, you are going to lose that case. >> right. in a big difference between skidmore and chevron is when

the agency changes poti every four yearsthat is going to flyou chevron deference, but skidmore with respect to that interpretatn ll drop out. it is not consistent and contemporaneous or consistent from the contemporaneous aspect. >> absolutely. it is a matter of a difference. if you look at some of the things justice scalia said in the beginning when he was enthusiastic about the doctrine, he viewed the fact th agencies flip-flop as being an affirmative virtue. >>justice kagan raises an important pot about humility in times of chevron. that is an important concern for any judge. the ipde is the other concern for any judge's abdication. to the executive branch running ughod over limits established in the constitution or in iscase, by congress. i thinwehave to find or that

iswhit's hard to find the right balance between restraint and letting the executive getaway withoomuch. on that front, there was questis rlier, do judges really relon chevron? >> i would lo tspeak to that. i think that is an important nseration. one of the premises in the first argument was rarely get to chevron step tw there are statistics. e most exhaustive survey of over 1000 cases by baett and walker we cited on page 33 the blue brief. if found coursewere rich except to in 70% ofthe cases. the cato institute brief, you might think things have gotten better because that was longitudinal study. you might thk things are ttg better because we have signal chevron is on life support. ran the numbers from 2020-2021,

it is still llover the time your average judge in the court of appeals is getting to step o. thspeech hasn't been updated, but as far as i know ill hasn't gotten to step two one. that is an unsettling of the la adisconnect that is very hard to get your fingers around at least if one circuit says the statute means x and another y everybody can see that this cot n decide the case. if course are dedi that one step two in ways in radically different i don't know how you unearth that. i think that is another huge problem. >> if chevron was overruled i think urbrief says we should go ahead and decide the statutorise. can you speak rybriefly to why?

and it would also be a lesson as to how far judges 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. you have the context of the statute and the fact the only other places that put these kinds of fees on fisheries, they put a serious cap and they it for the most well-healed fisheries or in certain ciumances, this is an easy case. >> thank y. >> and justice barrett? >> can we have a host of cannons, clear statement rules, so are constitutional inspired. the last argument about whether chro should be thought of as a part of the package. she said chevron coulde distinct that chevron was iq. can you address that? >> i think she's right about that and it sitshroughout in an island and that's a part of the reason to overrule it. i think all the other cannons that i could think o are fully conste with the no vot

statutory interpretation. i might be missing o. but the ones i think of when you're doing the constctn, you take into account all of those cannons. evron is the only one i know that says in a certain point, you just stop that stuff a you sort of surrender even under circumstances wherehey would keep going. only chevron does that. >> one last question. you sd on our docket, we've had multiple cases in which they have come up. do you think that chevron is going to solve that prle in a lot of theases, they have heir hat on wds like prriate, you know, and the tell me if you disagree,ut when a statute uses a word that leaves room for discretio like appropriate and feasible and reasonable. so don't y tnk they will still continue to rely on words like that in ways that might not, you know, limit our

emergency docket? >>'m not so naive to say i is going to solve all the problems with the emergency docket, but it is going to make it a lot better. sure, they wouldry to use modify, which is bold in light of at&t, but whatever. picked some those words, coming here and that is a case thatdn't be. but some days, sy is going to litigate whether it is a crypto contract just as they are confidentha a.i. is going to get here because of the statute and it is more likely they will thing.ere is some scientific but my own view of this is it' not a cure all, but it's going to move things very much in the right direction. >> thank you. >> thank you. >> general, welcome back. >> thank you, mr. justice. and may it please the court.

throughout the litigation at times this morning, petitioners ve characterized this case as presenting a fundament question of the separation of powers and a test of article iii. wi crts continue to say wt the law is? but i want to me sure what doesn't get lostn the shuffle is that petitioners have made an important concession that i think illustrates that the issue he i actually far narrower and the attacks onhevron lack meritnd are unnecessary. the concession is this. petitioner anowledge congress can expressly delegate to agencies the authority to define terms and fil gaps. and imagine if the statute said they were asked to define t administrator. i take both petitioners to give that up and recognize that is a delegation and crts should respect that. the role of the court in that circumstance is to make sure the agency has followed the procedures and statedithin whatever outer bounds congress

has set. and all of that complies with the constitution, of course, because congress has the authority to delegate the gap authority to agencies and the executiveas core article ii authority to fill in those gaps. that's the core exercise of t executive power. then the article three courts are just fulllg their judicial role when they will gi affects to what congress has done and the choice to rely on the agency in that regas. but i think what all of this shows is tonstitutional attacks on chevron and the suggestion that it is reously wrong, lacks merit. because there's no constitial distinction between that kind of expressed delegaonnd the delegations recognized in chevron. if congress can expressly invest in agency with the authority to interpret the law through an expressed delegation a then they could do the same thing. especially in a worldhe congress has to provide the agency with the expressed authority to car t stute into operation with the effective law. now we can debate wth they drew the right lin in

identifying exactly when these delegations have occurred. ihink they got that right for all the reasons that i tried to explain th morning. but i think it is important to recognize that that debate doesn't have a constitutional dimension to it th will fall out of the equation and that it is just a question o whether theyre that right line. if you recognize that and what iseft over are the practal concerns that have been raised about cheonnd i don't want to show you the forcef the concerns that some members have articulated. but those cces are manageable. the court could do in this case what it d in kaiser and it coul clarify and articulate the limits without taking the drastic step andhat is the right thing to do there andha they will be calling a part of the rules here. in this case, they will decide

to council in favorite of retaining chevron. i welcome the court's questions. >> and h doe see the silence? >> and so i think it would be wrong suggest that you can neatly categorize cases as those involving silence and those involving ambiguity. i recognize that you spoke to those tms and they were trying to be showingou where they directly resulted in the issue. andhe are goingo have to appoint to the rule and t directive from congress to p that into ifect, where it will be at least the baseline of this contt. and thatou help with their authority and this is the perfect example as they said that the act here is silent on

the issue of whether the industry cld be required to pa for monitors. we will he four that we pointed to that will undermind the authority and that it says th they can require the vessels to carry the monitor. and it could include arite third party and the penalty provionhat says in the circumstance where they have contracted with the private third party and not paid. the agency can penalize. finally the authority to enact necessary and appropriate terms. so we don't think thiss a case about that at all. >> yes, again, we are back to the same question that the chief had of m clement. that is exactly like the bread and butter of what we do every single day and we can resolve that. >> we think tt the statute will be car >> the fact that you think it is

clrnd they thought i was ambiguous shod tell us something, shouldn it? >> no, i disagree with that a actually if you look at what the dc circuit and the first circuit were doing in these cases, they recognize the force. they are true and they will acknowledge that ultimately it couldn't conclude with confidence thathe statute fitely authorized the agency explicitly. >> but you think it does? >> and yes, under step one, yet here we are. >> i don't think it is unusual to thi that they have t clear interpretation of the statute on its side and that the agency h acted reasonably. >> it's a trigger thatoby knows what it means. let me ask you about the delegation as yr example in the opening, which is interesting. and i total uerstand that statute that does and you make up what rate you think.

it might pose a delegation or it might not. bute know that they delegated. that's one thing. atou're asking uso do is to infer from that ambiguity that may not be the productf any intent at all. it might mean more in some circumstances. and not that we should go look at that context and other clues within that statute itself to determine who has the better reading, but ty should always win that case. >> no, not at all. that will be a different tool t finish up. i understand telegation of one context, but i struggle to see if wehould infer t friction of delegation. >> i disagree that there is a fiction of delegation in the circumstances that will trigger chevron. at the outset i want to make perfectly clear that o course the statutory context and stcture is one of the importtools of interpretation that a court

should use a step one. if we're in a world where the court can walk through those factors a ascertain tha congress spoke to the iue, let me be very car we recognize that they should get u back to what cones was saying. if you'reuggesting then in a rl where congress hasn't actually spoken to t issue, the court should give no respect at all to the agency's interpretation. i disagree that that is implementing congress' inten what they recognize in a circumstance wherehe have not spoken to the issue, given the express grant of rule making auority to the agency. and necessarilyecnize that the agency is going to have to fill the g along the w it's perfectly sensible to consume they want the agency to do it. >> let m ask you about michigan verses epa too. is somewhere in between so forth and to come up with rules. about the meaning of the word and.

and essentially appropriate is necessary. did the court find tre were outer boundaries there that can be exceeded, right? >> yes absolutely. we are not sgeing in that world. >> so you can do that, right? what i'm disputing is the idea there isls an answer either way, rather than the discretion. >> there is an agency? >> yes, under review. if i understood m friend correctly today, he seems to suggest in a context, you couldoo and say they dictated th or an answer withespect to how didhey find that source? what they recognizend what i think iust absolutely true as a matter of the on the ground realities and how the legislate, that congress doesn't actually decide allf these issues. when congress hasn't decided it and some follow on, they will need to fill in the gap. it's a question of whether it should thes or the agency. there is a presumption here that

they intended it to be the agency. but always subject to the ardrails about making sure the cotruction is reasonable. >> mr. clement suggested that we should ignore chevron because it d not deal with 706. do you have a theory as tohy they did not address 706? and how do you reon to this part of the argument? >> yes. soyheory for why theyid not address 7 is because 706 has ner been understood at any ti. at the time it was enacted or in any of the eight decades since have dictated the review with no inherit attention. it's further information on what the epa's ownisry shows. what i was trying to explain, this is a situation wre the court has recognized tha the epa wasn't meant to create dramatic changes it would have been aratic change going fro all the

principals deployed and the case law including immediately leading up to thepa to a standard on a prospect of basis going forward would have been a ghange in the relationship of how judicial reviews. no one mentioned that. no one suggested it was the right way. it's nev how this court interpte it. and justice barrett in response to you questions about the epa, u know, it's not as though this is a one off decision. theou has had any number of decisions over 70 applying chevron. i think in eac 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 thert's own understanding of stion 706 is entitled to a waive here. >> i have a question about the relationshipeten brand xnd your suggestion that we kaiserrized chevron sentially. i understand brand x to say a court must let go of its best

interpretation of the statute if they advance i a plausible one. one way toane this is say what we said in the kse context that no, use all the tools and come up with youres interpretation. why should we take on brand x >> if you understand brand x to hold that the court tnks it has the best interpratn and figured out what congress was ying about this issue and congress ske nevertheless has to adopt an inferior interpretation, then that's inconsistent with our approach we don't read brand x that way. i understand brand x t be distinguishing between stepne and step two holdings. so if there is a step one ldg where, in fact, the court has got it at the end of the day and recognizes that congress spoke to the issue, there's no room under brand x to let the ancy come along under the fact and say they should be understood in some different

way. it's only in the circumstance where there was chevron granted under step two. a part of that is recognizing at's because the statute was terpreted at the first time to not actually supply and answer dictation by congress. >> they the best answer that it is a step to question and it will seem to me tha having the best awe will suggest that you engage in statutory interpretation that came up with your best answer that might be relyard. so setimes if the court outside the agency context confrontedhe difficult question of statutory interpreti then you might say look, i'm 90% confident or i'm 95% confident. but i mean i think your reading bnd x might depend on the triggerormbiguity is, right? >> i do think that it will be clearly demarcating the line between step one and step two holdings, so a least the rules of the road are clear with reec to when the agey might have been granted to revisit their prior conclusion. if you're suggesting there's a way to rebrand brand x

and factoring into the equation th psibility that they meant to delegat t the agencyhat there is a better interptation, the best interpretation that congrs resolved it. i just don't think that you would ever get into the brand x scar. that sounds like a ruling. i take the point that there are some inhen lack of precision in a term like ambiguity. that's not somethinghas uniquely created by chevron, of cose, there are triggers in eaw and all kinds of context. but it's als that kind of thing that might be wearing you. it's not anything that's cured. was saying to justice kagan in the first argument, i think it'll open up the world where there is a lot of inconsistency in howuds are applying the principles inhe case of ambiguity. >> on tt point, somef the briefs point out the eernce of the states with chevronnd some don't have chevron and other states haven't had something like chevron,ut eliminated it in recent yrs and decades, and they are

experienced, they say, has shown it's workable in such a regime. so i just wt to make sure you can rpond to that? >> yes, so my underanding is about half the states still have something, a kin to a principle of indifference or aariant that looks like chevron. but i acknowledge that some states he olished any indifferences. i do think there is a lot leoncern at the state lev about the lack of uniformity o consistency. so one of the value that chevron implementsnd recognizes for why they would prefer forhe agency to be able to set these rules and for the cotso respect that is the value of ensuring there are cotry.m rules throughout the the state level. now exists in and as well, a lot of the states and the political responsibility could differ as well because many state court judges are elected. >> did indstand you in response t the question for justice thomas to say chevron doesn't apply to constutnal questions? >> yes, it is only a doctrine

that applies in statutory interpretaon >> it couldav an effect on that. does it apply in that situation? the deptmt of education will have some rule. is will apply to all soo, you know, and it could aly to religious schools because this is how we interpret, you know, whatever the impact of the rule is. when we interpret it that way we don't think that thereaise any free exercise problems. so is there a chevron difference there? >> i think if a particular interpretation creates serious constitutional problems, then they avoidnstances. one of the traditional tools that the cou could consult in order to understand if congress is up to the issue. >> the agency says they don't think this causes a particular constitutional problem. that is our expertise about how we apply this provision. given that, we think there iso free exercise problem. >> no. a court would not defer to

that. this is all happening in step one. i think this is a part of the process if the court determining etr congress spoke to the issue and the court has been very clear. the difference doesn't com in at all unless you get to step two. th agency views they deserve the chevron difference or you its take on one of those step one issues. it's getting any difference in th stage of the case. i do want to take another shot atryg toxplain why i believe petitioners are wrong to characterize chevron as resting on aiction. what they have tried to say is this doesn't really reflect what congress is intend iting. but i see three problems with that. e first is i tnk that actually lking at it from a matter of first principles, there is a lot of merit and wait that in a situation there are good reasons for congress to wa to vest with this kind of

authority. and it is the recognition that agenesf necessity are going to have to fill in those gaps and they are complex and technical and they are going to require the agency to draw on their long standin eerience with the program and the expertise that's accumulated in working with that industry that will also encompass i think inheritly some policy. th ancy could run a decision making process in doing thi chevron only applies in circumstances where there is a sufficient level o formality and that it is usually the rule making. that's the process where they could come in and tell the agency here are our views. here is what you shoulthk about. >> and that notice points very important it seems to be your arment. because that rationality that they wou want to favor the government rather an an opposition equally rational that it would want to

favor the individuals. and if you assume that the government has provided everybody a notice and an opportunity to b heard. but oftenhe government will seek the difference for addications between individual parties and then app that to everybody without notice to them. or differeeor interpretive rulesor which no notice and comment and let alone formal rule making for the proceedingisequired. and so there are many circumstances in which they will see the difference for a view of the law that affected parties would have no chance to be heard about. when do weo that? >> and with respect to the category, it is true that they have not ruled out that they could receive the appropriate circumstances. >> and so you would have us take that? i would just have them reiterate. and it is not as

though any is going to. >> nobody knowshathat means. and they would complain about that too and so i don't know with that and is that another factor? >> it is another important check of ensuring there is a deleti here and that they vesed that appropriate procedure. >> and so they will be out? >> they would raise a mh harder question with that and do they rule in or out? >> they haveot ruled them out and if you thoug- >> what would you have us do? >> and their interpretive rules is my question. >> i don't think that y could treat them as a class. and the interpretive rule. >> sometimes they are required and sometimes they aren't. and you keep those in, i'm sure. >>es, we certainly thinkha they will have that core plation. it is not the

same ability to take these input from them, but the court has emphasized where it has been applyi chevron that there is a possibility of the centralized decision making process in order to ensure the agency is gaering the facts and they will have the tls in their disposal, and that it is to have them do it through the litigation. the very least, its easy to see why they might think that is not as good of an alternative. and that they could come out of nowhere with respect to that party. wl have a brief froth small business. everybody. >> and until it is 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 view and tt many

people withoutotice, any notice or any chance to be hrd are bound. >>nd so myonrn what i was focusing on, with respect to litigation is that it is not as though every party will snd to get back by those cases tono about it. and look at the brief thatas filed. >> and of coue they won't have that notice and when that government comes for them, they get to take their case to court. >> andongress has often expressed a preference f not having these issues resolved pie by piece in different courts around the country. >> and that is provided for formal and informal rule making and adjudications. it is most rules that will be

resolved that way. for a long time those pross have not been used, andhey rely on the rule making. really now today, perhaps as a product of chevron. and agencs that have advocated that and moving more and more towards terpretive rules, where they don't have to provide notice. >> and i think that it circles us back to the facthe do not suggest that those rules are going to trigger the differences. so at least in that case that they have looked at from the agency and it is an important process. >> and on the front, they would talk specifically about that in particular andow thatgey will move from that post fairly often. there's a concern rse there and that is a situation that you cannot suggest your behavior ahead of time necessarily based on the new rule and the new changes and what this has done hat case that will affect

the people that didn't have a notice or any response to tt brief or scenario or youan to tell me why that's wrong? >> and that ishe set of ncns and that they will have tousfy it and whatever tools they are cruising. and that they are going to have to justifyhat they are doing. and in particular, they have fosed a lot on the idea and that they are changing their minds and the burden that they will need to take account for the interest and they get into state farm, i think, but with respect to that, they could take those kinds o consideration into account. >> thankou >> did you want t finish your answer on what you would say to your friend's view of intent? >> so i was trying to defend as a matrnd that it ishe first order answern this and

that there are oen really good reasons why they wouldan an expert agency toake that first crack in filling the law and there is it no way around it and that they have got to do it and this court has said that they are interpreting them underway and what tt law means. and that in this situation where theresore dbt and thats what congress would have expected that it is a pcedent from the court. it's not likehey have flown under the radar and they are unaware of it and they don't realize it's out there. and what they are doing. this is one of the most biggest decisions from that crt and in particularhat i would tnk that the intent will become all the more sound because they have not chosen to displace it and that it will trigger that strong

form of story that they applied in kaiser when they recognize in that suation where congress is ally the best constitutional and that it something about it. doesn'tter that they thought to change them any kind of way. >> thank you, l. >> i do have one me. this is not in that intelctl e request, but how do you respond to their point about the interpretation that this particular statute and his reliance on the theory that congressefitely, when it capped the big industry paying 2%, 3%, whatever the number is, they would not have wanted small fishermen to pay 20%?

>> and so we wl have a range of reaction t that and i was suggesting that we think there is a lot inhi statute to relary authority here and that specifically contemplates that the vessels might have that relationship with the monitors and therefore might be in a situation where they have not paid and that there c be circumstances in that footnote dhe way that the other two monitors, they were government monitors, corct >> and so this is our program that my friends he relied on to see the negative statute and two of those will apply and so it isery different and they

pay fees tohe government including entering into that relatish and those contractors that will p for administrative expsend that program operatis in this way. it mighte possible that they wi move in a be required to contract with those monitors, and that is the whole thing and it doesn work because they will put tha penalty in that section of the act that will apply to thoseessels. it is meant t tack on to that program. that wl be inexplicable. they say to wrap this up, it's

hed of and i want to be clear that they are latchingn to a part of the rule that acknowledged that the costs cod go up and they acted in response to thatnd created to respect some of the issues in these cases in that range. so this is something that they could look at and review that they were arbitrary for that cost and rightll so. >> and i just wanted to ask what would that mean? would it mean doing what ty did to that difference? and would there be adjustmen that would be necessary? would they want to go further in any respect? and what does it mean to chevron? >> and so i think that the courts in this cas that they

will he some concerns about the issues, they could do four ital things, which will draw heavily and look different in particul. they will need to reemphasize that analysis. this is drawn fro kaiser as i mentioned before as we have seen the lower courts. and in respect to this. and that they don't want to weigh that flag and don't give up just becausef the statute that is hard to par and instead there are a l of hard questions that will be solved to reveal their intt if they apply all theools and they really exhau tm. so that will take care of the ol category of cases. at step two,he court could again do what ty did in kaiser, which is to reinforce th reasonableness is not ything that will go and you ca s them saying at times athe government will win a that is not the standard. even at that stage, it is differential, but the crt should be enforcing any bounds

in that statute and making sure they have not tragrsed those. that's the third thing they coul d and that they will get off that ground whereou have that agency begirectly empowered by congress to speak wi the force of law and then exercising appropriatelyhe level of authority in imementing the statute. so i think tt is an important thgs well that there are ceai context 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 little bitifferent from kaiser, tompsize that it is always important to look at any indication that chevron does notea to apply. what i'm thinking here of our thgs like situations where the nature of the statutory question as the crt has said in other ses, it is not one that you would expect them to give to the agency and through t major

questions and i don't wan to rule out other scenarios. and congress candjust and react and take stute specific steps and support should pay attention to that andhey should not dictate to this and that inste iis rebuttable. >> and is there something about th mter now? >> and so i think that already, they are in an area where they arunr burden to duff and that they made clear whe they need to explain why tse shouldn't alter what they are doing in that kind of revised approach. d they also frequently if it ha come from a re making wl have to run that process all over again and that it will take a substantialnvestment of the agency resources. in that context too, theyould

make sure the agency is following the procedural requiren to ensure that it has informe dision making. in the end of theay, if they could run that gauntlet, then the fact they haveome discretion to changehe approach is not something to say it is kind of a bug in that statute and it is a fea where congress would want to give them the ability to adapt and to new information or the experience that is accumuled under the prior program. >> justice gorsuch? justice barrett? >> tk, council. rebuttal? >> just a few points. first my fend started with express delegation andt will show all the problems withhis implied delegation. what they will do is delegate implementing or exercising the authority and it does not do

what they will report to d can put limits onhe tax andt you again, it is a perfect example of that and they do raise that ns. you can check for that as well. and to that principlehan that silence, and in terms of, you know, this premise that it is entirely ftional and that in most cases it is something that they did not have enough votes to maket clear. and every statute has a binary answer. there are statutes like that a there are things that the salesperson who is iold in the servicing of cars, i say yes, but you can say no a it is binary. but you can't tell thewo

apart. at a ctain point, they look ambiguous. but youno what can tell the two apart? that the construction will find out what that wd mns and elasticity. telecommunication svi is not. and they can do theob now let me s one thing about the mystery of why section 706 did not appear in that decision. there is a really easy awe and the courts sort of stumbled into these announcements that you should go about that and it was a mistake. that is a special justification to revisit the decision ando get the decision right. let m say one word abo expertise. they do not have to go hd in hand i a way that wil preclude that review. we have the court of international trade. they all deal with technical

specialized issues. every one of them, the legal quesonare reviewed. and that is the basic unrsnding with the stu like section 706. lastly let me say this. u cannot kaiserrize the chron doctrine without overruling brand x. the fac y can take into account 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 and that is a feature and you can't kaiserrize it without overruling brand x and that it just went out the window and we might as we