doctrine or keep it. custice roberts: we'll hear argument first this morning in case 22-1219, relentless versus the department commerce. mr. martinez.

or aument of roman martinez on behalf of the petitioners martinez: mr. chief justice, and may it please the court: for too long, chevron has distorted the judicialss and undermined statutory interpretation. it should be overror three reasons. first, chevron violates the constitution. article iii emwe judges to say what the law is. it requires them to interpret federal statutes using their best and iepdent judgment. chevron undermines that duty. it reallocates ieretive authority from courts to agenciesanit forces courts to adopt inferior agency constructions that aued for political or policy reasons. in so, chevron blocks judges from serving as faithful agents of congress. it mandates judicial bias and enures agency overreach. and by removing key checks o executive power, it threatens individual liber. chevron also violates the apa. the most straightforwardng of section 706 requires de novo review of legal questions. congress put constnal and statutory interpretation on equal otg, and it required independent legal judgment as to both. as justice scalia wrote, the apa's text contemplates that authoritatively resolveill ambiguities in statutes. and,hi, this court's only justification for chevron is the impllegation theory, but that theory is a fiction. there's no reason tohi that congress intends every ambiguity in every agency statutive agencies an ongoing power to interpret and reint federal law in ways that override itsmeaning.

in this ca, e agency misinterpreted the msa to force struggli fhermen to pay up to 20 percent of their annual profs federal agents. the ment says that even if all nine of you agree with us th the agency's construction is worse than ours, you should nonetheless defer to t construction and uphold their program under chev that's not consistent with the rule of law. if we have the best view of the statute,e should win this case. i welcome the court's questions. justice thom. martinez, how much deference is in tension with the judiciaro? martinez: i think it's very much in tension, your honor. justice thomas: no. how much wouldt require? i mean, your argument is that chevron deference is problemati

but how do we determine how much deference is too much deference? martinez: i think you've certainly crossed the line when you have a rule that says that we' going to allocate interpretive authority from -- from article iii courts to an agency. anwhen -- when you've got deference that amounts to that, which is what chevron deference is, then i think you've -- you've crossed the line because what you've r done is -- justice thomas: i think what i'm trying -- what i'm asking is, how do we know where the lin is? you --w deference. there's skidmore deference. martinez: sure. justice thomas: we are deferential in fact finding, et cetera. i'm just trying to determine whether you're saying that we -- if it'de novo review -- martinez: right. justice thomas: -- without any presumio or deference, then it's problematic. martinez: i -- i thinkence becomes problematic when it requires a judge to say that the law means x wheny the judge thinks the law means y. i think skidmore deference is not problematiuse it doesn't require that. skidmore deference essentially says -- and we would be very comfortable with skidmore -- thatecse the agency has a -- has an important role to play in e ocess, often the agency has helped draft the statute, th agency has knowledge of the policy context surrounding the statute and itimementation.

of course, courts should pay special ultimately has to bring its expertise to br a way that's persuasive. and if the -- the court isn't persuasive, if the crthinks that the law means x even tugthe agency thinks the w ans y, then the court needs to go with the best interpretation of the statute, just like it does in every other -- chief justice roberts:-- martinez: -- area of statutory or constitutional -- chief justice roberts: -- let's -- martinez: -- interpretation. chief justice roberts: -- let's suppose the statute says the department of transportation ll set length limits for trucks that are reasonable. martinez: right. chief justice roberts: is that a legal question for the court, or is that a policy question for the agency? martinez: i think that -- chief justice roberts: it's a -- the -- the legal authority says they' g to be reasonable. that's a term that courts apply inany situations. martinez: i -- i think that a urt looking at that statute would try to determine thees meaning of the statute, and the best meaning of the statute there would be that -- that the use of the term real - "reasonable" confers upon the agency disetn to choose among certain policy options.

noth doesn't mean that the agency can just do whatever it was cause there are limits, and the court has to police that mits. michigan versus epa is a good example. congress used a broad term like "approprteand the question was -- which is similar to "reasonable," in ginthe agency a -- a range of discretion. but, at the same time, when the agency said, well,e n't have to consider costs in figuring out whether somethg appropriate, the court said no, that, as a legalatr, the best interpretation of the word "appropriate" in the context of this statute requires the agency to consider costs. chief justice roberts: well, what if the statute says that thagency can regulate truck -- truck length for vehicles that treln interstate commerce and there's a question whether or not interstate commerce -- the -- the delegation r interstate commerce is satisfied when particular -- martinez: right. chief justice roberts: -- circumstances are present. martinez: i ihink that that would be a case if you're -- if the court realled upon to interpret what -- if the dispute was ouwhether -- what interstate commerce means, i think that would be a classic legal estion that would be a legal question for the court.

and i think it actually highlights -- because interstate commerce is probably there because of the constitutional limitatio, highlights the fact that, really, the sameul should apply to interpreting constitutional -- chief justice roberts: well, i mean -- martinez: -- provisions as statutes. chf justice roberts: -- you could imagine -- you could imagine situations where the interstate commee determination is peculiarly fact-bound, you know, trucks transferring loads and -- at transfer pois the border. is that in interstate commerce for each one or no and isn't the policy judgment of the agencyernent in that situation? martinez: i thin ctainly, the policy judgment of the agencys is pertinent in determining sort of the facts because the agency might be on the ground and understand the ctl scenario. but i think there's a --n important legal component to that question, that in any other context, like, for example, if you were interpreting th constitution, i think the court would -- would quite reasonably

thinit's its own job to interpret the constitutional requirem intstate commerce and would -- would say -- would give it its best meaning. and i think -- justice kagan: well, let me give you -- martinez: -- the same approach -- justice kagan: -- a few more examples along the same lines, mr. martinez. is n product designed to promote healthy cholesterol levels a dietary supplement or a ug martinez: sorry. can you give that one more tim justice kagan: a new product degned to promote healthy cholesterol levels, is it a dietary supplement -- that's a statutory term -- martinez: ok. justice kagan: -- or aru martinez: i -- i think it would depend on -- on the -- the original understanding of the text of that statuten read in context. justice kagan: you -- you want the -- martinez: and i think that's -- a legal questionor court. justice kagan: -- you think that the court should detmi whether this new product is a dietary sulent or a drug without giving deference to the agency, where its t clear from t tt of the statute or from using any traditional methods of statutory interpretation whether, in fact, the new product is a dietary supplement or a drug? martinez: i -- justice ga you want the courts to decide that? martinez: justice kagan, i think with respect to that question or any other ofhe- a legal question, i think what the court

wod do, there -- there are going to be hard questions, but i think the court would bring all the traditional tools of construction to bear -- justice kagan: they do that -- martin: and would -- justice kagan: -- under chevron. they -- you know, we have made clear all the traditional tools, you can find an answer, that is the answer. so the court is very rarely in the situation wch you're talking where it thinks the law means x and ineait says y. if it thinks it means x, under chevron, as we've understood it and made clear and rgn it in a little bit over these last few year 's supposed to say x. but sometimes law runs out. sometimethe's a gap. sometimes there's a genuine biity. and i -- i don't know. in that ca, would rather have people at hhs telling me whether this new product was a dietary supplement or a drug.

martinez: so, your honor, i think a couple things. first of all, i don't thin chevron is a doctrine that only applies to tie-breaker 50/50 scenarios. it's never been understood that way. you know, justice scalia in hi famous article in 1989 -- justice kagan: it's not a tie-breaker. there are just some times where you look at a stutand the most honest reading is that there's -- there's -- there's a gap there -- rtez: but -- justice kagan: -- because of the limits olauage, because of the limits of our ability to predict the futu. and so who fills that gap? martinez: but i -- i guess what would sort of push back on is i don't think there's a gap if the court looks at the statute and thinks, hey, this is a really hard case, it's a really close statute. fifty-two percent likely, i think -- you know, iav52 percent confidence that x is right -- justice kagan: i'll give you -- martinez: -- 48 percent likely -- justice kagan: -- i'll give you another one, mr. martinez. do t term "power production" -- i'm just -- these are real cas. martinez: right. justice kagan: these are -- these are prototypical chevron

cas. martinez: but -- juickagan: does the term "power production capacity" fer to ac power that is sent out to the electric grid or dc por at's produced by a solar panel? martinez: i think same answer as the first hypothetic. but let me try to -- let me try to so ogive you a different framework for thinking about this probl. let's imagine that that statute came to a court before an en had even actedn e first place. what would a court do? would a court look at the statute atatutory term like that that's a hard -- presents a hard interpretive question and say: wellth is hard, it's sort of i think the law has run out and i'm just not going to be able to decide this. i think the court would go with the best intpration. justice kagan: the -- the -- the -- the court might -- the court in that case would have to make choice. but, you see, here, the court can say, you know, the option is to listen carefully and to defer if it's reasab and if it's consistent with everything that we know that congress has said, to defer to people who actually know things about these things -- martinez: but justice kagan: -- to -- you know, to people who understand the way particular questions fit within a broertatutory and regulatory scheme, to people who have understanding of the policies and of e cts that led to this. i'll give you thd example. martinez: can i respond?

justice kagan: and this wi b my last one, mr. martinez, and it's going bfairest one because it's going to be one you know about, which is chevron. as a stationary source in the clean air act, does it refer to whole plants or to each pollution-emitting device within the plant? martinez: we think that the decision ichron was -- reflected the best interpretation witmu respect to justice gorsuch's mother's epa. we think that that was the best interpretation. but -- but c iust go back and i think what you described earlier abt stening to the agency and taking into account althose things, our -- our rule would allow that. that's idmore. i think the only difference between our rule and -- d e skid- -- what -- the skidmore sortf proach and the chevron approach is that after listening to the agency's explanation of all the things that you said, the court isn't persuaded by the agency that the agency' interpretation is correct, chevron would say you still have to go with the agency. and that's just like a dramatic thg. justice soto buthy not? meaning i -- i think all of the play in disagreement is around the word "ambiguity." i know that there have been some earlier cases that suggested if there were two plausiblmeanings, you went

with the agency meaning. i think we've gone far beyond that. it has to bewoeasonable meanings. asming -- you -- you make an assumption that there is a best aner i don't know how you can say there's be answer when justices of this court routinely disagree and we utely disagree at 5/4. is the best answer simply a majority answer? i don't think so. martinez: but, your honor, if -- justice sotomayor: i happen, when i dissent, think the others got it wrong. [laughter] justice sotomayor: andhe often do. [laughter] justice sotomayor: but putting thatsi -- but putting that aside, in those situations, there are two plausible -- not ar plausible. there are two best answers. and the question iwhmakes the choice or helps you make the choice. and if the courtan- can disagree reasonably and comes to that tie-breaker point, anit could be 51/49, it could be

52/53, if it'that close, why shoul't the person with all of the qualities you spoke about, the entity with all of the quities, expertise, experience, on-the-ground execution, knowledgef consequences, why shouldn't deference be given to that entity? martinez: justicsomayor, i think your explanation of ambiguitju now just proves the problem with chevron because i think whatou said is that whenever there's a case, a ory se in which the members of the court disagree with oneer, that -- statute is ambiguous becausee reasonable people can disagree. justice kagan: that's what nobody believes -- martinez: well -- justice kagan: -- about chevron, mr. rtinez. as we've described it, iyo-- you work hard to figure out a atutory problem. you don't say, oh, 's difficult. oh, there are two interpretations. oh, you know, not evyby agrees with this in three

seconds flat. you don't say that. you do everything you do, look at the text, look at leglave history if you believe in legislative history. look at context. look at every tool you can, and still therarplaces where we don't know whether this drug is a -- is a -- is a -- whether this produ ia drug or a dietary supplement, and it's best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations. and, you know, judges should know what th d't know. martinez: i -- i agree with that, justice kaga but, with -- with all due respect, i- think i understood justice sotomayor to be saying that whenever judge -- justices of this court disagree abe be meaning of the

statute, because, obviously, everyone on the court is reasonable, that shows t there's an ambiguity. if that's the test, which i think was the implication of the question, then that can't be wrong. that's much broader than -- justice sotomayor: that wasn't -- martinez: -- step one. justice sotomayor: -- my implicatio my implication was that using all the statutory tools, you can still come up, using them in good faith, using them, you can still come up with no answer -- mainez: well, i think -- justice sotomayor: -- with no clear sw. martinez: -- i -- i think you can can come up with no clea answer because some -- justice sotomayor: or no best answer. martinez: -- because some statutes are hard. but i think you can come up with a best answer, and -- and the reason i think that is because -- justice sotomayor: best only because a majority agrees? justice jackson: but - martinez: no, no, because -- because, if you had the same statute with the same interpti question posed to you without the agency having acted, i don't think you woulsathere's no answer here. i think you would choose the best answer. justice gorsuch: i mean, mr. martinez -- justice jackson: but, mr. martinez -- justice gorsuch: -- i guess i'm ruggling to understand what -- ven the questions because, as i understand justice kagan's poeticals, which are -- are hard ones, that one option wou be to say it's ambiguous and, therefore, the agency alwa wins.

that -- that's what i understood evn to mean at least coming in here today. another would be to st carefully to both sides and pride special weight under skidmore to a coequal branch of goveme's views about the law, which one would think we would do anyway, and that they would have -- have -- be considered great weight in arriving at the best answer and that that's what a court wouldof -- if there were no interpretive principles advanced by the executive branch, if there hadn't been so sort of rule or adjudication. is that -- is that corre? martinez: i -- i think that's correct. and i think the ffence between the skidmore approach that you just laid out andhe chevron approach is just, at the end of the d, ce you've considered all the expertise and all the inrmion the agency has to bear -- justice gorsuch: who decides? martinez: who decides? who -- is the jue rsuaded or not persuaded? justice gorsuch: is the judge persuaded at the end of the day, with proper deference given to a coequal branch of gornnt, or does the judge abdicate that responsibitynd say automatically whatever the agency says wins

martinez: right, even -- even if the judge is not persuaded. justice jackson: but, mr. martinez -- justicuch:nd then -- and then -- justice jackson: -- doesn't that -- justice gorsuch: -- and then if i might just -- just finish up, what -- what's the effective fference of that? it seems to me th in the first case, when -- when a judge says here's the law, it's settled, we're done, right? it can be appealed, but at the enofhe day, if the supreme court of the united states upholds that interpretation, we're finished. wheas, under the chevron approach, are we finished? martinez: no. justice gorsuch: what happens? martinez: i think the agency can overrule what the coursa. the agency can overrule what itself said. i think that'a ry strange thing, that in every other area oftatory interpretation, we understand the law to have one fixed ang and the goal is to try to figure out that fixed meaning, but chevron by design creates isorld in which the agency is -- is -- because there's thisonof discretion, the -- the agency and ambiguity, the en can kind of flip-flop and then force courts to flip-flop with them.

justice gorsuch: and i'm struck on that orby the brand x case, which involved broadband, in which this ursaid, okay, agency, you automatically win withesct to one interpretation of the bush administration, i believit was, and then, of course, the ne ainistration came back and proposed an opposite rule. martinezrit. justice gorsuch: and then the ne administration came back and flipped it back closer t the first. and as i understand it, the esent administration is thinking about going bk where -- martinez: that's -- that -- that'extly right. justice gorsuch: -- where we started. martinez: that's exactly right, juice gorsuch, and i think it -- it plays up the real problem. chevron really is a reliance-destroying doctrine. age if you're a person or a regulated entity and you're trying to figure out what the law is. u should be able to rely on the best interpretation ofhe law and not have to, you know, check the -- the c.f.r. every up years to see if the law has somehow changed, even though congress hasn't acted. justice gorsuch: at's the delta between skidmore and chevron? martinez: i thk i think that's right. i mean, skidmo, think, would allow for -- for courts to give meaningful wghand consideration to -- to persuasi onions by agencies. the only thing skidmore doesn't do ireire a court to give up its --

its interpretive -- ultimate interpretive say and defero interpretation that is not persuasive. justice gorsuch: thank you. justice jackson: mr. martinez, what -- what i'm stuck on is what seems to be an assumption in your argument that every question pedith respect to interpreting -- interpreting a statute is a legal one. i see chevron as doing t vy important work of helping courts stay away from policymakin a so i -- i'd like for you to sort of think of it throughhalens and help me understand why, if we do awh chevron's framework, we won't have a problem of cous tually making a policy decision. so justice kaganavyou a

number of examples, and i think the reason why those examples are hard or why they're ambiguous or whatever is because, at bottom, they're not asking legal questis;hey're asking policy questions. how is it that, you know, stationary source is to be defid? that's not really a legal question. i mean, there could be several reasonable ways of iereting that. and at the end of the day, i think the way i've been thinking about chrois congress has given that policy choice to the agency. and my concern is that take away something like chevron, the cill then suddenly become a policymaker by majority rule or not, making policy determinations. so how can we avoid that? martinez: so we agree, obviously, that -- that courts should not be in the business of policymaking. and i think the whole enterprise of statutory interpretation, when properly detood, is -- is designed to take courts out of policymaking because what the court is trying to do is -- is act as a faithful agent of what congress has done anfi the best -- justice jackson: but isn't that -- martinez: --pretation. justice jackson: -- isn't that what chevron does? i mean,'t chevron, step one, even in this very case, asking

the question, one, has congress made that policy dnation? so, for example, here, the question is whether or not monitors on the boats have to be paid for bthowner of the boat. i see that as a policy question. congress could have said yes or no. there's nothing about law really hently in the question of should the monitors on the boats be pr by the owners or the government. so step one is has congress in the statute swed that question. when we say no, everybody agrees that'not in the statute, then we say the agency can make that determination so long as they so in a reasonable way. so, for example, here, the question is whether or not monitors on the boats have to be paid for by the owner of the boat. i see that as a policy question. congress could have said yes or no. there's nothing about law really inherently in the questi o should the monitors on the boats be paid for by the owners orhe

government. so step one is has congress in the statute answered that question. when we say no, everybody agrees that's nohe statute, then we say the agency can make that rmination so long as they do so in a reasonable way. and the -- and courts sort of police the boundaries of reonableness, but whether or not the monitors are paid r not really a legal question. martinez: i think the question of whether or not the law allows to force the monitors to be paid for by private industry is absolutely a legal question. i agree thou that when congress -- justice jackson: but isn't that the same question as to whether or not -- isn't ust another way of saying, can this policy determination be dey the agency? mainez: no, i don't think so. i think the differces when the -- when the -- when the policymaker, whether it's congress or the agency, is sitting there and trying to figure out, like, what the best cy is, would the world be a better place if industry has to pay for these monitors or not, that's absolutely a policy question. justice jackson: ok. so tt's the question -- martinez: but -- but -- justice jackson:- ght?

martinez: no, because, when it cos to a court, the court is not figuring out what the best thinfothe world is. the court is figuring out, well, what did cgrs actually want here. it's -- juice jackson: but i guess i'm afraid that the court really is figuring out what the best thing in the world is if we -- martinez: but -- but -- justice jackson: -- look at it through your ls,ight, because, if the answer to the question is, you know, sul-- shouldhepay for it or not, the agency has a view, and unless we're deferring to that view, i don't see why we aren't overriding the -- the agency's policy prerogative. martinez: the -- the question that the court should be answering is not should -- should industry pay for the monitors. the questionhathe court should be answering is, did ress require or allow agent -- industbe forced to pay for the monitors? and that's a very different question. that's the different between law and policymaking. d think the whole assumption and the whole understanding of statorinterpretation under this court's cases is there's a difference between law and policymaking. judges are there not to exercise force or will. they're there to exercise judgment. they're -- t're serving as neutral umpires. they'reot players on the field. justice jackson: all right. how does that --

ste barrett: mr. martinez -- under your interpretation -- so, here, what -- what is the estion we're supposed to be answering? ma: the question you're supposed to be answering is, did -- does this statute require -- has congress requi either required the -- the monitors to befor by industryoras it given the agency the authority to make decision? and d't think -- i think ats a legal -- both of those versions of that question ar legal questions, and the answer is no. justice barrett: mr. martinez, can i ask you a questi aut the line between law and policy? and i want to ask you in the context of one of juic kagan's examples, the dietary supplement or drug. where is theinbetween something that would be then subject to arbitrary and capricious review and somethg that's a question of law? because i'm just wondering whether we could say that the definition of dietary supplement or drug might be somethi that's a question of statutory interpretation in the context of the statute, but which category any one thing fell in might be a question of policy for the agency. martinez: right. i -- justice barrett: is that poible? martinez: -- i -- i think that's right. ink that would be more of a -- of a, you know, application of law to fact or a factual question.

t i think the core question of, like, you know, what is the meaning of dietary supplement, and i forget wt e other alternative was, those are legal qutions. justice barrett: but whether the particul clesterol-reducing drug fell -- martinez: right. justice barrett: -- in one category or the other, iea you know -- a --inez: that -- that would be justice barrett: -- presumably, that depends on hodo this function? what is the mechanism by which it decreases cholesterol? martinez: i -- i think that's right. but i think it's -- i do think it is important to make -- retain the sort of legal component ofhaquestion and -- and make sure that the courts ve authority over that legal component. justice barrett: i want to ask you something about yo aicle iii argument too. you know, justice thomas ask you what the line is. and, you know, courts all of the time make judgments about whether things are reasonable. but i -- i don't understand you to be disagreeing that things like whether something -- that an agency could be tasked with deciding what was the most feasible, most useful, most asable. well, courts could do that too. so is that a delegation of judicial power tt uld offend article iii in your view, to give those kinds of -- martinez: no, i think -- justice barrett: -- decisions to angency? martinez: -- i think the way to

think about those kinds of -- of statutory provisions would be that the best interpretation of the statute, given the nature of the word "reasonable" in context, is to confer a range of direon on the agency. and so i think a court in that case -- if -- if the agency is operating in the range of discretion, that's arbitrary and prious review. if the agency is sort of operating at the edges, you have to figure out where the guardrails are. that's thl question. so, if the -- if the statute says, you know, the agency can pick redbl, or green, then the choice among those three options is for t ancy. but, if you have a legal estion like, oh, does pink count as red, that's lel question. chief justice roberts: thank you, mr. martinez. how much of an actual question on the ground is this? i saw some study that said we haven't reedn chevron for 14 years. and judge kethledge has written -- he's been a judge for 10 years. he's never invoked chevron step o. you know, judges a ud to deciding things, and when they get around tdog it, they

tend to think what they've come up with is not only the best answer, but it's the only answer. [laughter] and -- and i just wonder how often this comes up? martinez: i think it comes up a lot, your honor. and this court hasn't relied on chevron since 2016, but the lower courts still havtopply it. and i think these two cases, the -- the two tt u're going to hear this morning, sort of show what happens when -- when courts are applying this doctrine because they're -- they're essentially getting ta point where they don't really veo figure out the best answer and they can just -- you know, instead of asking what es the statute mean, they can ask a different threshd question, which is, is this statute ambiguous enough that -- that we should just, you know, let the agency do the work for us chief justice roberts: thank you. justice thomas? juice alito? justice alito: mr. martine would you agree that one of the reasons why chevron was originally so popular wa concern that judges were allowing their poly ews, consciously or unconsciously, to -- to -- to flnce their inrptation of the statutes in question?

martinez: yes. justice alito: why was that fear unfounded? y you think now that the fear was unfounded? martinez: well, i think three things. first of all, i think the fear has -- it'reonable to think the fear has diminished over time, regardless of what it was then, in large part due to the ver salutary developments in the way that this court and the lower courts generallyowhink about statutory construction. in the old days, there was l of reliance on legislative history and onorof more free-fm alysis that i think made it easier for policy considerations to infect the judicial decision-making process. t is court has now made clear that, you know, real, should be text-focused, we should be focuseonaithful agency to congress. so i think that is one difference. i think another difference is courts now he come more appreciative of the fact that w're not just talking about, you know, judicial -- rules of, li, judicially made common law about how to interpret statutes. we have the apa here.

justice scalia was a big defender of chevron in its original incarnation but, over time, came to realize athe apa had text that actually bore on this question. and i think, when you're enforcing that text, you come to the same place as our article iii argume, ich is that courts have to exercise independent judgment. justice alito: do you think that the canons of interpretation ate have now and all of the other tools that we have in r statutory interpretation toolkit are like the enigma mainand so we have these statutes and the're sort of written in code and we run them through the enigma machine and, abra cadabra, we have the best interpretation? do you really think that's how wks? martinez: i -- ihi that what this court does with respect to the normal canons of construction is it's used the -- it'--t's generated those canons as rough rules of thumb to help guide the interpretive process because, if the court believes that the canons best oximate the best original meaning of the statute,

especially -- and then there's some canons that -- th st of are not purely textual canons but that sort of are informed by constitutional- undational constitutional values. i think evn's very different from that because, with chevron, you're doing something -- you're notrng to find the best interpretation anymore. you're, in fact, agreeing that you have to impose the not-best interpretaonecause you have to defer. and so, unlike all the other canons, chevron ishenly one that says to courts, you can stop doing your normal interpretive function and we're going to allocate that interpretive function outside of article iii. justice alito: thank you. chief justice roberts: justice sotomayor? juicsotomayor: i counted over, i think -- not i -- the solicitor general or someone has given us a list of 77 cas which the court has used the chevron apprchnd interpreted what the law was. your overruling chevron puts a quti to all those 77 cases. martinez: no, your honor, i think -- is it's stare decisis now?r out

martinez: right. so -- justice sotomayor: until the agency does meing else? and then people can come back because it's not stare decisis ymore? martinez: so i think, with respect to the efff -- of applying normal rules of constructi he instead of chevron, i'd say two things. first of all, e holdings or whatever, the bottom-line holdings in those cases would get stare decisis, so they wou not be undermined. so there's no convulsive chan t law with respect to that. justice sotomayor: i don' understand how that happens. on you have a new approach, i'm not sure. martinez: i -- justice sotomayor: but l m move on to the second part of my question, which is the cases that come to the court are usually the hard ces so you say in the last 14 years we've belreferenced chevron. and do you know what the breakup is? how often have we consistently upheld the agency in those cases? martinez: in -- in the cases since 2016? justice sotomayor: yes. martinez: i -- i d't know the track record on it, your honor.

justice sotomayo inow, it's interesting. martinez: but i llay, i mean, there -- there's some promen-- justice sotomayor: but -- but putting that aside where we disagree, do you suggest that our disagreement wasas on ignoring of chevron or us doing exactly what you say we ou be doing, which is to say this is outside the bounds of reasonableness or around the guardrails becau y're going outside pusible -- martinez: i -- juicsotomayor: -- of reasonable interpretation? mainez: -- i think the court in cases like the american hospital case or the digital realty case, which i think are two really good recent examples, the court unanouy overturns the lower court decision because it does exactly the right thing. it does all the canons at step one and it -- and it essentially says, like, the state clear. t i think what those 9-0 decisions show is how confusing and unworkable chevron is because the lower ur, you know, purported to do or didn't really do what they were supposed and they came to the opposite conclusion, not necessarily because they thought at-

that your interpretation wasn' the best but rather because it thght that the statute was ambiguous enough that it required deference. and so it's like a threshold -- justice sotomayor: counsel, that judgment is inherent in every question. i mean, that -th kind of problem is just a part not just of judging but of decision-making, period, of life. anso it's not clear to me that the fact that there may beom ambiguity about what -- how much ambiguity, the queiothat justice thomas asked, it doesn't take away from the basic premise of chevron, which is a reasonable ieretation within the bounds of -- of common statutory interpretation shoul be given deference. rtinez: right. but i do think the aigty trigger introduces a whole kind of threshold question that's very hard to alyeutrally. i mean, yoha great judges, judge kethledge, i think, was referenced. he doesn't -- he never found a case that required him to go past step one. ju silberman, another great judge, said that in most ces he thought the statute was ambiguous.

and if there's that much disagreement, then i think that's a sign that chevron really isn't workable. and this court has tried to rein in chevron in numerous ways, but i think that what all of those efforts show is that you kind of ne a secret decoder ring to figure out what the law means under this court's approach. you have to do step zero. you have to apply need. then you have too robust step one inquiry, taking into account fono 9 and taking into account, you know, how much ambiitis needed. in this -- in the d.c. ciuit, you have to do step one and a half, where you have to figure out whether the agency recognized that the statute was under kisor, there's maybe a step three that says you turn off deference when the agency's operating outside of its area expertise. and then overlying all that you've got the major questions doctrine. and so i think, if -- if -- if that's kind of what -- justice sotomayor: well, that's the court's creation. martinez: right. but it's the court's creati because it's trying to solve the fundamental problem, whichs that chevron is doing something very weird. it's takingntpretive authority that belongs to courts and it'ging it to agencies. so all of these bells and whistles are efforts to kind of

claw it cko address the symptoms, but i think it's ti for the court to address the disease, the underlying problem, which is chevron itself. chief justice roberts: justice kagan? juste gan: mr. martinez, i want you to think of this from congress's perspective. so i was tnkg what is the next big piece of legislation on the horizon and who knows, don't have cstal ball, but i'm going to say -- i'm going to guesth it's artificial intelligence. so let's imagine congress enacts an artificial intelligen bl and it has all kinds of delegations, maybe it creates an agency for the purpose or maybe it uses existing agencies and it has all kinds of delegations to that agency or agencies about how to regulate artificial intellen so that this nation can capture the -- the -- the opportunities but also meet the challenges of that. and then, just by the nature of things and especially the nature of the subject, there are going to be all kinds of places where, although there's not an explicit delegation, congress has in

effect left a gap. it has created an ambiguity. and what congress is thinking is, do we want courts fl that gap, or do we want an agency to fill tt p? when the normal techniques of legal interpretation have run out, on the matter of artificial teigence, what does congress want, mr. martinez? rtinez: i think congress wants courts to interpret the best interpretation othr -- justice kagan: congress doesn't know -- kagan: -- apply the best interpretation -- justickan: -- what that answer means. congress knowshathere are going to be gaps because congressanardly see a week in the future with respect to this subject, let alone a year or a decade in the future. and congress knows that there are going to be things that it ites that it's just not going to be clear how this will apply or what it will mean with respect to countless factual situations that this country will have to address. does the congress want this co decide those questions,

policy-lenuestions, of artificial intelligence? martinez: i -- i don't think core wants the court to do policy. i think congress wan t court to do its ordinary function, which is interpret the law and figure -- and the best understanding of the law. and i think that the impliti of your question is that this is delegation by congress that chevron deference is -- is this implicit delegation. but i -- i don't think that's rit. i think many people, including a very insightful arthat -- that you wrote 20 years ago, make clet this is fictional. this is delegaonf a fiction. justice kagan: fictional just an-- is like academic speak for presumed. we are indd esuming congressional intent. thcoressional intent, you know, the -- the delegation that'not explicit on the face of this statute, but what we're thinking is congress knows things about different initions, about what they know, about what they're competent with respect to, and congress knows that this cou and lower courts are not mpetent with respect to

deciding all the questions about ai that are going to come up in the future. and atongress wants, we presume, is for people who acal know about ai to decide those questions. and also, those same people who know about ai are peop w, to so degree in some way, are accountable to the political process. they have constituencies. they have fact-finding abilities. they are obligated to go consult with people. theyept to a president, who needs to be elected. inll kinds of ways, both with -- with respect to expertise and with respecto eir connections to the public and to other policymaking eits, those are the op congress wants to decide questions about ai. we don't even know what the questions are about ai, let alone the answers to them, we beg e court. martinez: justice kagan, i think, if we're tinto figure out what the -- what the reasonable thing to infer that congress has preme i think the far more reasonable presumption and the one tha's most consistent with our

constituon structure is that congress is going to presume at courts are going to do law and not policy, they're going to pick the best interpretation and enforce the best interpretation to this statute in the exact same way that they wouldo with respect to any other -- any other statute. and i this think case actually -- you kno ais a trickier example -- 19 example. i mean, this case, you know, whetr 's -- it -- it was a correct interpretation or not a correct interpretation of chevron is really not the issue that we're deciding here. the issue we're decidg re is more like that, is more like the countless policy issues that are going to confront this country inheears and decades ahead. will courts be able to decide these issues as to things they know nhi about, courts that are completely disconnected from the policy process, from the political process, and, you know, that just don't have any expertise and -- and experience in an area, orreeople in agencies going to do that? martinez: i --

justice kagan: that's what this case is about. martinez: -- i think the cotitional answer is that congress needs to set the rule with respect to ai. itan delegate some policymaking discretion to agencies, but onceheaw is written and the interpretive function haseg, then that job is -- is for the courts. and i thk is case actually really is a good example because i think the problem with chevron is that, like, no one really -- i mean, i'm cuouto see what the solicitor general will say about this, but do aone really think that congress was presuming thathegency would get to decide the question of who pays for the mits? justice kagan: ok. i have one last quti. do you think that congress could codify -- codify chevron? martinez: i -- i don't think so because i inthat -- that a statute that codifies chevron wod y, essentially, that the interpretive authority has been reallocated from the court to thagency. i think that -- justice kagan: congress -- martinez: -- interpretive authority -- justice kagan: -- cannot decide that in cases -- after all the statutory tools have been used and there remains a gap or an ambiity, congress could not decide that it wants people who know something about something to decide the questions that

will be left over? martinez: i -- i think that gives away and -- and would -- would take away from courts and give to agenesore judicial interpretive authority. i don't think congress could do that. in the same way that congress cod't tell the president how to exercise the veto power or the pardon power, it can't tell courts how to do interpretation and to defer to someonel. justice kagan: thank you. chief justice bes: justice gorsuch? justice gorsuch: dweave to decide that constitutional question martinez: i think it makes sense to decide the constitutional question. i think you could -- justice gouc that wasn't -- do we have to? martinez: i think you coul resolve this case under the apa, and we would certainly welcome an -- an interpretation of the apa that comes out ouray especially if it's informed by constuonal avoidance principles that i think have a lot of salienche. justice gorsuch: are -- does anything in your argument suggest or depend upon the idea that juds ould make or decide policy questions about ai or anything else martinez: no. we -- we a hundred percent agree that judges should not do

policy. we just think thatheshould do law. and that's in -- chevron is about legal questions. justice gorsuch: then there was someueion about past decisions, and as you pointed out, this court's moved away fr ung legislative history to some degree in favor of text, and we've made othechges in our interpretive approaches too without congress's intervention, for example, in sovereign immunity contexts, returning to the clear statement rule that d eexisted this court's jurisprudence for 200 years,nd then we wandered off into legislative historancircled back around and corrected our own mistake. we had to deal with the question of what to do thhose precedents, and our answer was to leave them alone from -fr those ancient regimes, as we -- martinez: right. justice gorsuch: -- called them. are you asking us to -- to do anything different when it comes to chevron? martinez: no, and if i could just explain what -- how i think the world would look with respect to the old cases. i think stare decisis would apply to the holdings of those old cases. i don't think that -- that anything would change. you know, stationary source

would still mean what it meant when -- when the court issued that bottom-line interpretation. and so i don't think that this ul-- a ruling in favor of our side would -- would reir or entail overturning y those old cases. i think what we really care about is prosptily, both with respect to the fishing reguti here but also with respect to other cases that come forward to the courts, making sure that courts are the ones doing the interpreting andot agencies. justice gorsuch: thank you. chief justice roberts: justice kavanaugh? ste kavanaugh: several questions. first of all, on sdme, there was reference to skidmore deferenc a i guess i don't think that's the right term, thatt's respect or pay attention to, but i think, if we throw the term "deference" into idre deference, we're going to walk into another probl - martinez: some -- justice kavanaugh: -- li t one we have with chevron deference. martinez: some might say "deference" is ambiguous. i think that -- [laughter] -- that it's imprecise.

i think the better way -- i thk oftentimes, when people say "deference," what they mean ishaif you think the answer is x, you should defer to someone else's answer, which is different. i don't think -- i think absolutely that that would be inapproprie. so i would not use "skidmore deference" because i think it -- it runs the risk of -- oging that implication. i think that, really, we're talking about very serious nseration of the points that the agency makes, but, ultimately, you have to be persuaded. and if you're persuaded, then that means thay've concluded that the agency has the best interpretation and then you just apply the norm res. justice kavanaugh: right. i thought idre was about the power to persuade, not the power toonol. martinez: exactly. justice kavanaugh: yeah. martinez: we -- i agree with that. justice kavanaugh: ok. on the constitutional issue that justice gorsuch and juste kagan were raising, you have lots of arguments here, and mr. clement does too, for overruling chevron without reaching the constitutional issue. so i guess why -- why would we reach it? if -- if we agreed with you on overruling chevron on other grnds, i don't see the need to address the hypothetical that justice kagan raised abo

congress passing a chevron-type regime. martinez: i think three things on that. like i said earlier, we would certainlweome overruling chevron, especially under the a and especially if informed by constitutional avoidance prinpl. but i think there are three reons why you should consider going beyond that to the constitutional holding. there are going to bso cases that, as a technical matter, section 706 of the apa wouldn't -- doesn'apy. and so, ift's an apa holding, it may be that in those cases there ghbe lingering uncertainty about whether deference should -- should apply to cases that aren't technically under section 706. i think the second thing is that a lot of the analysis in guring out what the duty under the apa to interpret theawi think a lot of that analysis really overlaps with the constitial points. and i think, if you -- if you get to a place where you agree with us on the apa, it's not that far, not that different to ultimately agree with us on the constitution as well. anth, finally, i would just say that although, of course, th court often prefers to rule

on non-constitutional grounds, i think it's also recnid in cases like pearson versus callahan that there'going to be a value and a benefit to the judicial system to pving clarity about what the constitution mns i think -- i would respectfully suit this is one of those situations. justice kavanaugh: on th question of how much does chevron matter on the ground, i think you addressed this a lile bit by citing judge silberman, but do you wa t elaborate on that? i mean, are -- there are cases, i assume, that g tchevron step two pretty regularly. martin: ry regularly, your honor. it happensllhe time. and i think, if a case like this one or two cases like these two can get to chevron step tw i think that suggests that it's really hard to figure out ho chevron step one is supposed to work i mean, the digital realty case is another great example. that's a case where there was a statutory definition of the term "whistleblower" that required the pers thave gone to the sec and -- and, you know, submitted a -- a cplnt, and the government and the lower court colud that that was

ambiguous and that it might actually apply, it was reasab to read the statute to not require a report to the sec. so i think there are cases there are examples like these that come upllhe time, and, you know, thankfullyth court doesn't have to intervene every single time, but t rson that the problem is there is because you've told lower courts how to do their interetion. and as long as that instruction is out there, there are going to be a lotf ses that get it wrg,nd you're not going to want to be in the business of sort of error correction on each one. juice kavanaugh: on the question of how congress can operate without chevron, i just want to elaborate -have you elaborate on that a little more. my understanding is congress ofntes will use terms like "the agency can regulate reonable limits" or "appropriate limits," and that gives, under state farm, a lot of discretion to the agency to make choices to wt justice kagan was talking about, to think about the world i exists five years from now or 10 years fr n and not have to worry about going back to congress.

the question really is for congress and its drafting choices, i think, what kinds of broad, capacious ter iuses, as opposed to using more defined terms or statutory terms -- usual kinds oftatory language. yes, ic't rewrite that. at least that's how i thought congress could operate in a world where chevron does not exist. rtinez: i -- i think that's exactly right, justice kavanaugh. and i think that, like i said earlier, in -- in those situations, the court's job is basically figuring out what the best interpretation of that word is. and in many cases, maybe most cases, those types of capacious words are basically -- the bes understanding of those words is at congress is, in fact, conferring the discretion on the agency. that's very dfent from chevron, where, instead of having any sort lguage like that or express language conferring a delegation, you're -- you're basically applying this fictional implied delegation that -- that is triggerembiguity, which is like -- you know, frankly, it's -- it'-- it's not -- it's fictional, it's made up.

so i think a world in which congress, when it was delegate to agencies, needs to be express and use language like that or otheuage, i think is a better world from the perspective of -- ofrtle i and from article iii. justice kanah: thank you. chief justice roberts: justice barrett? justice barrett: mr. martinez, i want trern to the question that justice sotomayor raised about stare decisis. so you said that overruling chron wouldn't have an effect the many cases that have gotten to chevron step t a then deferred to the agency. you said -- am i -- did i understa y correctly? martinez: those bottom-line so isn't it inviting a flood of litigation even if for the moment those holdings stay intact? mainez: so i would say the bottom-line holdings in os cases, i would just quibble slightly, i ul-- i would describe the bottom-line holding as being that the en's action was lawful. and so that's the bottom line. i think it's true that people could come and s, ok, the interpretive methods have changed since this bottom-ne holding waised and we think that -- that, you know, a different result n suld apply.

and -- and that's why courts consider requests orturn precedent. but i just think that they would apply the same standards that they would apply to other stare decisis inquiries, and i think it would be the rare caseha would require -- that -- where a court would say is- this decision not only isn't the best interpretation, bui's like so bad and so practically important that we're going to overturn our own precedent. so i think that would be the safeguard. justice barrett: so, when you say that the botne holdings, you -- you've kind of changed the level of gity, right? if you say the bottom-line holding is tt e agency's interpretation is lawful, you think it'open to people to come back then and say, well, it's acal not lawful, this is wrong. the court got it wrong because the best interpretation isn't the agency's. rtinez: i -- i think litigants could make that argument, but i think they would have to overcome the normal stare decisis test, which is very hard to overcome, and so they would probably have to show that it's really wrong and really accally important.

and i think most courts, and i age this court, is -- is going to find that that threshold is -iset, like, almost -- very rarely, maybe almost never. d so, as a practical matter, you're not going to be upending, u know, those -- those bottom-line decisions -- justice barret o martinez: -- even if you let people in theory come and challenge them, which they can do now. justice barrett: so lemesk you -- you -- you just referred to the, yoknow, serious stare decisis threshold, you know, that would veo be overcome. martinez: yeah. justice barrett: so let's lk about the stare decisis threshold here. why is it ffent here than it was in kisor? you know, in kisor, the court declined to overrule auer and the part -- the opinion that was for a majority of the court was largely it was on stare decisis grounds. so why would a different result obtain here? rtinez: i think my first answer is that the chief justice's opinion suggested it might be different and i think the reasons 's -- it's

reason -- it's -- it's -- it relys different is because there are important differences betweeron and auer. the most important that i think plays on the riae question is this idea that chevron allows and -- and almost like a feature of chevron, not a bug, is that it encourages anws agencies to flip-flop. and so the reliance consideration with respect to evn is -- is much, you know, weaker for -- for -- for the ment's side because the agency is allowed to flip-flop alatnce, whereas, with our deference, the idea is that the agency's going to be very hard for the agency to flip-flop. so i think it's more important to correct chevron because it's -- it has that mistake that auer doesn't. there are hedifferences. you know, chevron is problematic because it lets enes say what congress intended or what congress's meaning s opposed to just saying what they themselves meant with the regulation that they themselves enacted. so i think thee kind of -- you know, the deference makes more see en you're deferring to the entity that actually created the provisn question as opposed to deferring to their interpretation of a provision that was created by congress. i in in addition, you know, chevron is not limited to agency expe auer is limited to agency expertise. so auer is -isarrower. and then, finally, i do think there's difference even with respect to the apa where i think the apa learly puts constitutional interpretation and ory interpretation on equal footing, and that might play intthanalysis. you know, this court, the plurality in -- in kisor sort of emphasedhat -- that the apa was enacted after seminole -- a ar after seminole rock, and so maybe that was a basis tthk

that -- that congress was okay with something that looked like auer deference. but that's not true here. chevron came many years after the apa. so i think there are a lot of differcethat really flesh out, i think, the importint that the chief justice was making, which was th t analysis there doesn't automatically transfer over to chevron. justice barrett: thanks. chief justice roberts: justice jackson? justice jackson: so i've heard you say severatis that you agree that judges should not be doing policy, theyd be doing law. and i guess i too agree with that, and my concern is that i's actually not as easy as it seems to distinguish betwe t two and -- and that it appears in a lot of your answe tt you sort of say, well, you come up witthbest answer, it's a legal question b'm not so sure it's a legal question as opposed to is it t be under the sort of policy regime. and i think that there's a real separation-of-powers danger here

to the extent that you' sing that the judges are deciding whether or not this is something the agency should do or not, whether this is a legal question or not. you know, there'old saying that when you're a hammer, everything looks lika nail. and i'm concerned that judges are going lk at all of the questions related to a statute ancall them legal if we don't have something like chevron that quires judges to be actually thinking about their proper role lave to this issue. so how can you assuage my concern in that ga? martinez: so i think two points. i think the first point i ul make on the distinction between law and policy and how they kind of maybe seem like thebl together, i think that -- that there e st so many instances in which a court can get a question that comes before it that maybe it involves an agency

regime, but the agency hasn't acted yet. and i thk e court in that circumstance just does its best. it doesn't ve guidance, it doesn't have instructions from the agency. it does its best. and i think, when it does its best justice jackson: but does it have to, mr. martinez? me, there are -- there are other regimes in which a court is pre with a question and it identifies it as a policy question tt cannot answer. so what i'm saying is that it's not cearily true that just because the court gets an issue, it automicly says, oh, this must be legal, i have to act. mainez: but, if -- if the court got -- just to go ba t justice kagan's hypothetical, the question of what -- wh i a dietary supplement and the agency hadn'acted, i think the court would absolutely give meaning to tha and i don't think the court would think that what it's in is making policy. justice jackson: well, let me veou a -- a particular example, all right? in the food and drugnd cosmetic act situation, new drugs can be approved only if an adequate -- "adequate and well-controlled investigation" shows that the drug will have its attend -- intended eec and well-controlledan "adequate investigation," is it your view thatoness wanted the courts to decide what it means for a study badequate or well-controlled? i mean, how ula court go about determining whether that's thing it's supposed to be doing or the agency is supposed toe doing?

martinez: i think th -- the court would -- would do exactly the kind of analysis there that it would do if it had that exact same statute without the agency acting. and i think what that means is the courwod go in and it would do everything that -- that we all agree hpe-- should happen under step one. i think the only difference that if, after doing that step one analysis, the court coludes that there's a better view and a less better view, then the court should just go with the better view justice jackson: but when -- when does the court decide tt this is not my call? martinez: well, i think at the -- justice jackson: i gue tt's the part that's dropping out for me iyo analysis. you just say, you know, we do a step one analysianthen the court makes the interpretive decision about what thisea. and i guess -- martinez: i -- i -- i don't think the court ever says that it's not my call if the question in front of it is a question of statorinterpretation, because i think that's a core job -- ste jackson: so every statutory interpretation question is one of law that a court can decide, you're saying?

martinez: yes, and that -- justice jackson:he's never a statutory interpretation question that is one of policy that you see congress may have been intending the agency to answer? martinez: i think, by definionif we're talking about interpreting a statute, then you' talking about a legal question in the same way that if you'realking about interpreting the constitution, then you have a cotitional question. no one would say that you would pldeference there. justice jackson: so there's never a rlyou -- maybe we just differ on this. i'm worried about the courts becoming uber-legislators, that when we have a policy -- so one way that some of the experts have lood at this, some of the legal -- legal scholars have looked at this, is that they say, when ere's an ambiguity, there are actually different kinds of ambiguities. so you might have a situation in which there's statutory term and it's ambiguous in the sense that thereeveral reasonable meanings of what "stationary source" might an for example, several different ways that you could define tha

when you get down to that level of analysis, tstion is, who's going to make the choice as between what osmeanings are? might be a best choice, but i guess, if we're tki about a policy question, there are several reasonable meaning w should the court be the one to make that determination? martinez: i -- ste jackson: and -- and couldn't we be in a world where core intended for the agency to actually decide which choice is bt? martinez: i think where i -- where i would just sort of disagree is what you said at the end when you sort of assumed that it was a policy question. i would just say that if it's -- if the question is theeang of a statutory term, that's an interpretive question th's a legal question and would be treated as a legal questio you got that exact same question before the agency had acted. justice jackson: all right. let me ask you one more thing abt practical implications. so let's say it is, you know, a lel question, as you have analyzed, adequate and controlled invtitions. if i'm an agency and i'm trying to be responsie,ow is this going to work as a practical

matter? ishegency going to go to court every time it gets one of these unfid terms in a statute and seek, you know, a declaratory judgme ato the meaning of "adequate and controlled" -- and elcontrolled investigations" before it goes forward with its po martinez: no. juste ckson: all right. so the agency can come up with itown definition and implement it and then wait to be sued with respect to that, and -- and every term und in a statute we're gngo have litigation about? think what the agency has to do is what everyone else has d which is try to figure out what the -- what the law means and then act aorngly, and if someone challenges that, then that'll get sorted out. if there's a -- a stat -- a legal question, a statutory interpretation question, then that' g sorted out by the courts. but the agency isn't, like, paralyzed -- justice jackson: what do we do about the -- t cos that we talked about in -- in the city of arlington case th ces from perhaps having different courts, right? weav11 different, you know, jurisdictions that have legal authory.

so something like the definition of "adeqnd well-controlled investigations," you say the courts will so iout. well, first of all, it will take years perhaps for the to sort it out. what is the agency supposed to beoi in the meantime? and different courts from all of different jurisdictions could actually have a different viewasustice sotomayor pointed out, of what "adequate and well-contr investigations" are supposed to do, so -s. so isn't it sort of impractical and chaotic to have d in which every undefined term in a statute is subject to litigation if you're trying to govern? martinez: well, i -- i don't k it's impractical. i think that to the extent that juste gan's questions sort of indicate that there's acally a relatively small set of cases in which chevron's into make a difference, you're going to have that same probm th respect to the cases that maybe 20 years ago under a loos aroach to chevron wouldn't have gotten deference.

justice jackson: wouldn't you have more of a problem in a world in which we've gotten rid of chevron because it's going to givenctives to parties to raise legal issues that they wouldn'ha raised before? martinez: i -- i don't think it's prlem to -- to have parties, if they think an agency is oversteinthe boundaries and if they're right that -- justice jackso n i understand, but, under a chevron regime, right, if that's e background rule, then you're going to have parties thinng twice before going down a litigation road with respect to a term because they're going to say, at the end of the day -- martinez: right. justice jackson: -- the agency has a asonable interpretation, that's what the court's going to find, so it's not any -- you're -- right. you're going to have parties being lessy to challenge agency action that is unlawful under the beerpretation of the statute because they know that when they g cou, the judge is not going to apply its independent neutral judgment and instead is going to tilt the scales and defer to the agency. justice jackson: thank you. martinez: and -- chief justice roberts: thank you, counsel. generaprogar. oral argument of gen.

prelogar: mr. chief justice, and may it please thcot: the chevron framework is a bedrock principle of administrative law with deep ros this court's jurisprudence. overruling a prede is never a small matter, but overruling a precedt foundational as chevron should require a truly extraordinary stication, and petitioners don't have one. they say that article iii requires de no riew of all statutory interpretation questions. but that's flatly inconsistent with precedent going back to the marshall court and with the tritnal limits on mandamus jurisdiction, which governed most judicl view of executive action in the early republic. they've said that chevron violates dueross. but the application deferential standards of review doesn't constitute impermissible bias. and they c that the apa requires de novo review. but that theory is inconsistent with the statute's history and the way it's been uerood ever since its enactment, including in the more than 70 ca which this court has relied on chevron to sustain an agency' interpretation. on top of all that, reliance interests incontext are at their apex.

congress, agencies, states, regulated parties, and the american public have all relied on chevron and the regulations upheld under it to make important decisions that could be upended by overruling that framework. thousands of judicial decision sustaining an agency's rulemaking or adjudication as reasonable would be openo challenge, and that profound disruption is espeal unwarranted because congress could modify or overrule the chevron framework at any time. congress has many times considered proposals to do so, but it's never taken that step. std, congress has legislated for decades with chevron as the bagrnd rule informing the degree of discretion that congress hashon to confer on federal agencies. just five years ago in kor this court declined similar calls to overrule the auer deference doctrine based on many of the sa flawed arguments that petitioners are making here. the court obseedhat it would

be the rare overruling that would introduce so much instabitinto so many areas of the law, all in one blow. overruling chevron would be an even greater and unwarraed shock to the legal system. i welcome the court's questions. justice thomas: general, section 70ofhe apa was not mentioned in chevron. how would you reconcile e requirements of -- on this- federal courts under 706 with ur view of chevron? general prelogar: section 706 says that courts should decide all releva qstions of law and interpret statutes, buno of that is inconsistent with the chevron frewk because 706 doesn't prescribe a universal standard of revi tgovern those kinds of statutory interpretation questions. and the cour a interpreting statutes when they walk through the chevron framework.

rst, there's all the work that the court does at step one of chevron. that is using the tools of interpreti to identify whether congress has spoken to e sue in the case and, if so, chevron said that's the end of the matr. so, in that sense, in a step one case, the court has, of course, interpreted the stut but, in a situation where, at the end of that interpretive pres the court is left with no conclusion that it's actually leo ascertain that congress has spoken, then, in that rcumstance, i think the right interpretation of thstute is that congress left a gap or maybe created an ambiguity and simultaneouslyesd the agency with the important responsibility, pursuant to an expresdegation, to administer that statute with the regulations that have the force of l. and that's within -- tells the court what the relevant question of law that's left over to resolve is.

it's whether the agency acted within the bounds that congress itself prescribed. so i don't think there's any fundamental coatibility with section 706 and what chevronictes about how to think about congress's delegation justice sotomayor: can i say, counsel -- general, i know enty of statutes where congress uses the word "de novo ididn't here, correct, in 706? general prelogar: that's correct. justice sotomayor: i thought it, and i do tnkt, would be revolutionary to say that congress can't lit dicial review. aedpa is the quintessential question where we noon give deference to state court decisions, we say even if it g it wrong, if it didn't get it unreasonably wrongwere superseding the court's ability to declare a violationf e constitution and give relief. so i -- i ihink it would be radical to say that congress codn't implement chevron. in fact, there is legislation to erle chevron, requiring de novo review, that hasn't pass. there are statutes that basically don't -- say apply de novo revw,orrect?

general prelogar: yes. justice sotomayor: and there are statutes that require differential review explicitly to legal questions, correct? general prelogar: yes. justice sotomayor: besides general prelogar: yes. justice sotomayor:llight. so now we have -- we're now at 70 and my -- your adversary, your opposing c, said that he didn't see that much disruption from overruling chevron, that nobody would really brinup those old cases. do you have a view on that? general prelogar: i think that my friend, it -- it might be easy for him to say that because he is nogog to be involved in the endless litigation that i think would result if this court were to overrule chevron. unrstand his point to be that all of the holdings in

those cases will be secure because stare decisis llpply in those contexts. but the important thing to realize is that in those cases, as justice barrett's question emphasized, the court has decided that what the agency did was reasonable. the statute has essentially been interpreted vt the agency with discretion such that the agency's reguti is being held lawful or valid on the basis of reasonablenes a i think that that means that litigants will come out of the woodwork seeking to open those decisions and contending that they didn't actually address what they now say is the reva question, not whether the agency's interpretation is reonle or whether the regulation can be upheld on that s, but how the statute should be interpreted without grantingeferce to the agency's interpretation. chief justice roberts: counsel, i'll ask you the same question i asked your friend. you be saying chevron is foundational. we g aot of statutory interpretations from agencies, and i don't know whether it was 14r 16 years, we haven't relied on chevron over that time. i -- i mean, have we overruled it in practice even if 've let the -- had to leave the lower courts to continue to grapple with it? generaprogar: no, i don't think so, mr. chief justice. it's been eight years since this urrelied on chevron at step

two, but there's no case that my friends have beeab to point to where the court has said that a statute was ambiouor left a gap and chevron would otherwise apply, butheourt is not going to defer in that circumstance. i think that that -- chief justice robes:o. but, i mean, that's simply a function of e ct, when -- when we go through the work of trng to interpret what a statute means, when we get to the end, that seems to be the right interpretation, and -- general prelogar: i agree. those are step one holdings. so i -- so i think thath are consistent with thchron framework. and the fact that this court hasn't had a step two case in recent years in no way indicat that in those cases where congress is, in facting ambiguities or gaps, chevron no longer sets the right ground rule for understanding the scope of the delegation. justice kavanaugh: c isk you about wh iee is an internal inconsistency in chevron itself? it relates to footnote 9, which is -- instructs that a court shld use all the traditional tools of statutory interpretationefe getting to

step two. my concern about that or my nfusion about that is, if you use all the traditional tos statutory interpretation, you'll get an answer. and we know that because, in cases where we don't have an agency involved and we use tho same traditional tools, we get an answer. so how do we deal with footnote 9, whi sms to suggest that you'll never get to step two if you follow footnote 9 by what it sa? general prelogar: so what the court said in otte 9 is that the court should use all of the traditiol ols to ascertain whether congress had an intent on the issue. and that, of course, is an important part of this framework because, if congress actually spoke to the issue, then the agency doesn't have any discretion to act in a way that's contrary to congress's express direction. justice kavanaugh: do you think that'different from ascertaining what the statute mes? general prelogar: i think th there can be a relevant difference and it touches on acy what you were asking about in the context where a court has dit without an agency. in that circumstance, i think it's absolutely right that the court is ultimately going to keep working and decide how it thinks the statute should best be adminted, even in the circumstance where there might be an ambiguity or a gap to

fill. but what chevron recognizes is that there is a third option available. it's not just conesspoke to the issue and it necessarily authorized what the agency did or congress spoke tohessue and it prohibited what the agency did. there is a category of cases and statutes outhe where, really, using all of the tools, the bestntpretation of the statute is that congress didn't resolve it. it left that gap or ambiguity and coupled ititthis express authorization to the agey carry that statute into effect. this is congress and the agencies wki together hand in hand to put into effect this -- justice kavanaugh: how would you define ambiguity or how would yo iyou were a judge, say, yes, this is ambiguous or no, that's not ambiguous? general prelogar: so i wou draw on what the court said recently in kisor where it said a statute is aigus when the court has exhausted the tools of interpretaonnd hasn't found a single right answer. and i recognize, justice kavanaugh, and you have pressed these concerns that there are some limits of language here and it's not subject to precise mathematical quantification, but th's because i think it's a standard

that inherently requires the application of juden and at the end of the day, what the courshld be looking for and asking itself is, did coress resolve this one? do i have confidence that actuly've got it, i -- i understand what congressea to say in this statute and it meant to proscribe a -- a uniform approach to stationary soce, that it has to be plant-wide or it has to be a particul pce of equipment? but, in a circumstance like evn itself with stationary source or some of the exames that the justices have been talking about with reasonable or feasible, i think you can get to the end of that process and a judge could say: i think, actually, the way -- the right way to understand this statute is that it's conferring discretion on the agency to take a range of permissible approaches. justice kanah: do you -- do you think it's possible for a judge to say, the best reading of t stute is x, but i think it is ambiguous and, therefore, i'm going to defer to the agency, which has offered y?

general prelogar: no, i think that thawod probably -- justice kavanaugh: that can't happen? i think that happens all the time. general prelogar: well, i thin that there are two diffent ways in which courts use the term "best interpretation of the statute." so, if what you're asking me is, tre a world in which a judge could go through the rigorous steoninquiry, apply all of the tools, and say, i think there's a best interpretation insofar as i ink congress spoke to the issue, but the agency's inrpretation is it could be permissible, i recognize there's me doubt here, the answer is no. chevron does not require a crt to ignore what is ascertained doing the step one inquiry. at that point, that is the -- the judge's conclusion tha congress actually spoke to the issue and chevron is totally clear about this, give effect to it. but, if what you're asking me is, is tre world in which the court could get to the end of the step one inquiry, decide that congress hasn't spoken to the issue, andhesay, if, in fact, the courts had been given the role ofiing the gap, i would have done it differently, i would have exercised whatever direon that congress left open in this statute in a different way, even lookg things like the overall objectives in the statutory program as a whole, enes, of course, in that circumstance, it's -- it's implementing congress's dictes -- justice gorsuch: i mean, general

-- general prelogar: -- for the cour not -- interrupt, but those are two different -- very different views about what qualifies as an ambiguity you've just given us. one is there is a better terpretation. i provide it as a court. the other is: well, yeah, t i'm going to defer anyway given whatev csiderations you want to throw into the ambiguity bucket. and that'exactly the problem that your friends on the other side suggest have persisted in the lower courts for 40 ar and why some judges claim never

to have found an ambiguity and other equally excellent circuit judges he id they find them all the time. and it's also why, i d't know, maybe a dozen or more circuit judges have written asngs to overrule chevron. and -- and -- and -- and- d it also may be why one of your colleagues last year said i n't know what ambiguity means at this lectern. and should thabe clue that something needs to be fixed here, that even the fera government at the podium can't answer the question what triggers ambiguity? you've given us two different alrnatives today, and so many lower court judges who just want flow whatever we tell them to do faithfully can't figure it out. general prelogarsohere's a lot packed in there, justice gorsuch, and i want to respond to each of yr ncerns. first, i would draw from chevron and kisor in defining wh ian ambiguity. its en a court has applied the tools of construction and can't ascertain that congress d an intent on the matter. so i think that that is e re question for a court at step one of chevron, and if that's the circumstance, thatou only ever move a court to applying deference at step two. now i understand the concern you expressed that maybe lower courts are too reflexively finding that there's ambiguity at -- justice gouc well, you gave us a second definition just a

moment ago, and -- general prelogar: i was trying to -- to explain how i thought that sometime-- justice gorsuch: some -- yeah. general prelogar: ithe case law "best interpretation" -- justice gorsuch: yes. general prog: -- is used in two different -- justice gorsuch: right. general prelogar: i don't think that's a different understanding of chevron. justice gorsuch:el-- general prelogar: i think that's really a difference -- justice gorsuch: -- your -- your friend -- general prelogar: -- between step one and step two. juicgorsuch: -- your friend a year ago thought so and -- and -- a ler court judges think so. general prelogar: so lete respond to the concern -- justice gorsuch: so you agree general prelogar: -- about lower court judges. if youhi that they are too readily finding ambiguity, i thinthcourt could do in this case exactly what it did in kisor -- justice gorsuch: -- we done at, like -- like, 15 times over the last eight or 1yes, say, really, really, really, go look at all the statutory ol and yet here we have a case, two cases, one in which one cour found ambiguity and went to step two and another one which -- well, i can't tell what it did, but there's a pretty good argument it -- it tried to resolve it at step one. so, even in a case involving herring fishermen and the questionheer they have to pay for government officials to ooard their boats, which may call for some expertise,ut it doesn't have much to do with fishing or fisheries, h to

do with payments of -- of -- of government costs, we -- we -- lower court judges even here in this rather prosaic case can't figure out what chevron means. general prelogar: well, i do thinth issuing a reminder to courts about the thoroughness -- e gorsuch: another one? general prelogar: -- that's necessary at step one could make a difference in this context. and i can just share acdally on behalf of the government that we have canvassed the litigating components and lood the lower court case law. and after kir,ower courts granted auer deference far less frequent, i think it can matter and that lower courts can get that kind of message if you're worried about it. but, justice gorsuch, the other into add here is that if you are concerned that lower courts ha dferent reactions in trying to implement chevron at ep one, i think it's important to think about the alterti as well. 's not as though, if this court overruled chevron,h's going to get rid of statutory

gaps or ambiits. justice gorsuch: no, it takes -- general prelogar: theyil persist -- justice gorsuch: -- us back to skidmore, which justice jackson, the most ardent of new dealers, wrote and that persisted in this court for 40 years, mo o less, after the apa. and the world seemed to continue its axis just fine. general prelogar: but it's not going to create greater predictability or stability or consistency across judges. justice gorsuch: that's -- tha's -- general prelogar: if anything, i justice gorsuch: -- an interesting thing to suggest, thatheon predicts stability, when the whole point -- i didn't e you mention brand x much in your brief. but i -- i'm to go back there, but -- my good friend, but brand x is a rece r instability, isn't it, because each new administration can come in and undo the work of a prior they're all reasonable. i mean, my goodness, the american people elt em. of course, they're reasonable op. (laughter.) justice gorsuc a -- and -- justice sotomayor: that may be the first -- (laughter.) would have thought that chevron, st as this court's understood it, is a recipe f

anti-reliance. general prelogar: so i disagree with that characterization about brand x, and i think my friends haated, kicked up some dust about exactly what brand x does -- justice gouc so you do -- general prelogar: -- and doesn't do. justice gorsuch: -- you do endorse brand x, the governmen es? general prelogar: yes. i think it is a loca follow-on of chevron, and here is why. as brand xtsf recognizes, if the court has found at step one that congresspe to the issue, there's no room under brand x for the agcyo reverse the court or somehow change the underlying meaning the statute. instead, the statute has been terpreted at step one and what congress says goes. it's only in the category of st t cases where brand x comes into play, and in that circumstan, 's because the court in the prior case has

understood t stute to leave a gap or an ambiguity for the agency to fill, nsering a range of regulatory approaches. so, in thaciumstance too, the meaning of the statute doesn't change. it remains a gap for the agency to fill at time two, and if the agency is running through all of the procedural hoops, which can be quite burdensome in this context, to change its regulatory approach, it is still acting consistently with the -- justice go or not. general prelogar: -- with the diretion. justice gorsuch: or not if it -- if it issues an interpretive rule withoutote and comment or issues an adjudication. it may or may not beha burdensome, right? so brand x also says that an ency can overturn a prior judicial interpretation. d i saw that as a circuit judge with respect to an alien o was allowed into the country under the tenth circuit's detanding of the law. and the government come back and says, noyohave to overturn your precedent, tenth circuit, and he's t lowed in the country. and we had to overrule our judicial precedent. do you think that's an approprie derstanding of the law too, that judicial precedents, maybe even precedents of this court, can be overturned by agencies? general prelogar: it depends on what t jicial precedent held. if it held at step one that that ate was clear, then of course not. but brand x doesn't require that sult.

if the prior precedent held that congress dn't resolve the issue and had delegated t agency the respoibity and role in administering it and filling the gap, including with the possibility of changing regulatory approaches based on things like change -- justickavanaugh: but the reality -- just to pick up on that, the reality is -- you -- you say don't overrule chevron because it would be a shock to the system, but the reality of how this works is chevron itself ushers in shocks tthsystem every four or eight years when a new administration comes in, whether 's communications law or securities law or competition law or environmental law, and goes from pillar to post, like professor pierce wrote, and he had been aanf chevron. now he's not because he says it's a sourcef treme instability in the law. that's his -- his phrase. and jt seems like you just pay attention to what happens when a new administration comes in at epa, at sec, at ftc, you name it. it's just massi cnge.

that is at waritreliance. that is not stability. and so i tnko hold up stily and reliance is a little tough given just watchi how it operates every four years. general prelogar: well, let me give you a couple of different reactions to i think that that is a small sliver of cases or circumstce and in the mine run case lving agency regulations, ag themselves build on those regulations as a foundation. ere's no evidence that agencies are out there flip-flopping leftndight or doing so on a whim. and it brings me to the important point that to do -- justice kah: i don't think they're -- i'm sorry to inte-- i'll let you finish. but i don't think they're doing it on a whim. i think they're doing it because they have disagreement with the policy of the prior administration and they're using what chevron gives them and what they can't get through congre to do it theels, self-help, and to do tmselves unilaterally, which is completely inconsistent with bicameralism and presentment to

get your policy objectives enacted into law. general prelogar: but,usce kavanaugh, the premise i think that's embedded in thatueion is the idea that congress had spoken to that iue and in a circumstance where congress dn't resolve it and, in fact, wanted the agency to have flexibility and a range of options, there's nothing hently problematic or incompatible with our system o government to recognize that agcies can carry out those directives. and just look at "stationary source." you know, that was a circumstance where the court said, plng all of the tools, congress didn't have a view on it it didn't want to foreclose a plant-wide definition. it didn't want to foreclose an equienspecific definition. and i think it was entirely permissible for the expert en to come in, take stock of the entire situation, and, yes take account of the li goals of an incoming administration to better account for the interests of the regulated parties and give tm exibility. that's just part of congress's design. jujackn: after all, you know, taking into account the licyoals of the new administration refcta democratic structure where we

have the new administration being elected by the people on e basis of certain policy determinations. i guess my concern is i suppose dial policymaking is very stable but precisely because we people and have lifetime appointments. so, if we has and ambiguities in statutes and the judiis coming in to fill them, i suppose we would have a -- sometngf a separation of powers or policy -- excuse me -- separation of powers concern related to judicial policymaking. am i wrong to be worried about that? general prelogar: no. i think athat concern is valid, and i think it's valid along two separate dimensions, and one is to recognize that i the scenarios where we're at chevron step two, by definition, it's because thstute itself doesn't supply an answer and the court can't ascertain that congressctlly meant to resolve it. and in that circumstance, it's

entilyensible for congress to give the issue to an agency ent is charged with administering the statute d, of necessity, is going to have to fill the gap along the way. and congress could quite legitimately wanthagency to draw on its policymaking expertise in figuring out the right way to fill the gap. justice jackson: what do -- what do you say to mr. martinez, who says we've already characterized ats a question of law because the court was involv at step one in making the determination, and so sms a little odd -- i think i took this away from hsentation -- to suddenly say, when we're in a step two gap-filling world, now we'reoing to call it a policy question as opposed to a legal one? geraprelogar: so i think you can still characterize it as a legal question while recognizing that in a circumstance, borrow justice kagan's words, where the law has run out and congress hasn't actually spoken to the issue, the court, if it resolves that issue, is -- is going toavto draw on a set of considerations to inform its jume. and i wouldn't call it policymaking, but i do think it means that the court can't suggest that the answer it is

giving is absolutely dictad that precise issue by congress because, by definiti, 're in a world where congress didn't speak to it. so the court wilha to take account of a narrower range of circumstances, things like the overarching statutory objectives, to try to fill in the p. but the point is that when coress has left that gap and charged the expert agency th e administration role, congress could have ever expectation, and chevron says congress has thexptation, that the agency will fill the gap and th t courts will respect it within the bounds of reasonableness that always apply in this context. justice barrett: general prelogar, most scholars of statutory interpretati consider chevron to be an interpretive canon like clear statement rules, rule of lenity, judicially created. do you see chevron that way? and, if so, do you see it as different in kind from any of the other canons of interpretation that we apply? neral prelogar: i do think it is different. i don't conceive of it as a canon. instead, i think that it is fundamentally root i-- in kind of settinthground rules for how all three branches of thgornment are operating together. and what i uerand the court to have been doing in chevron is

recoizg that there are legitimate reasons why congress cannot answer every questi itself and why it will want to go hand-in-hand with an agency by charging that agency with administering e atute. and in that circumstance, it's the role of e urt to give effect to that. so i think it's not just kd an interpretive canon, but, rather, it really is grounded in the separation of powers. justice barrett: so is it dependent on a judgment about what congress would want, one that would have to be empirically tested? general prelogarso don't think that it's getting into congress's subjective intent, although, certainly, i think the primary rationale that chevron gave was its appraisal that this is, as an overarching matter what congress would have tended when it comes to gaps. and i don't mean to suggest that this means that congress thinks about each and every gap it's creating in e ment. sometimes i think it does and it's clear when it says set reasonableat. it knows that it's not itself presibg what those rates will be in concrete circumstances. 's leaving gaps and the agency has to fill it. but i think,vein the circumstance where congress

doesn't know it's eating it at the time, someone's going to have to come in after the fact andilit in, and it's either going to be the agency or i's going to be the court without deference. and in that circumstance, i think the court appropriately recognized congress would want for the agency to do it. justice barrett: and how do we ow- this is -- goes back to that question of what is the trigger of ambigui tt justice gorsuch was asking you. so think about a concrete example like pulsifer, which the united states isn e other side, pending before the court, turning on what "and" joins together. general prelogar: we think that one's clear. i'll just put it out there. (laughter.) e barrett: so let's -- put aside the question of whether, you know, the department of justice an executive can get to deference in interprincriminal statutes. just erase that issu the picture. is that the kind of question -- you know, judges below, very smart,erreasonable judges reacd fferent conclusions about what th word in the statute meant. is that the kind of question then, you know, thinkingbo brand x saying, well, it doesn't have the best, it just has

to be, you know, alaible reasonable one, is that the kind of statutory qstn that would trigger ambiguity and step two deference? general prelogar: so i think it's hard to speak in generalities about this. and i am struggling because, of course, the court has recognized that the department of justice does not get deference in the criminal context with respect to that particular issue. justice barrett: and it's that statutorstcture in a communication would say to just try to address the overarching question is that, you know, i think that it's going to be kind of a specific exci in every case, and i can't say here is thformula i can give you to know when the statutory interpretaonxercise at step one runs out and the court shouldeelike, i don't have an answer, congress didn't sulyne and when not. i think it's going to varbad on the statutory scheme. but, in each case, the cou should conduct that inquiry, make it a thorough inqrynd take account of all of the relevant aspects of interpretationhacan bear on meaning and show that congress, in fact, didesve it.

that is the role of the court, and it's the role of the court likeseo enforce congress's directions. justice barrett: so that kind of tion, putting aside the government's position i pulsifer, so maybe -- that's an uaiquestion to ask you, but that kind of question you think would be the kind of question that could -- you know, let's take it outside of what does the word "and" mean. you know, a question of statutory cture, the placement of a comma, you know, that kind oa thing, that is the kind of question that, depenngn the circumstance, could trigger step two deference? general prelogar: i think it conceivablcod. now i want to hold open and acknowledge that the court has saidhe are certain types of statutory questions that don't fit within the chevron framework cae there are kind of statute-specific reasons to think congress wasn't giving this question to the anc i think the majoqutions doctrine is a species of that. i'd point to the adams fru case as well where it was a judicial review provision and the court said this wasn't something for the agencyo . but i think, in the mine run seyes, and -- and to the extent you're saying, well, it feels odd for it to depend on a comma or to rnn the meaning

of the word "and," still i think the inference holds because, in that context, congre, it, in fact, has left the ambiguity or the gap, recognizes that thegey is going to have to come up with an answer. justice barrett: except a lot of times congress doesn't intentionally leave the ambiguity t gap, right? it's just limits of language, limits of foresight. general prelogar: yes. so i think a court ultimately, if it's able to ascertain that, alough it's not perfectly clear in the statute, you n figure out what congress intended, give effect to that, that's step one. at least congress knows that if 's going to unintentionally create ambiguities or gaps, chevron t stable background rule. it's been the rule for 40 years. this court acknowledged in city of arlington that congress, in fa, legislates against the background of that rule, a s it knows that with anything it's doing that's unintentional, that will trigger if the predicates are satisfied. justice kavanaugh: i'm sorry. can i k you about the phrase "law runs out." one way to thi about that would be if you had the same statutory interpretation --

chief justice roberts: go ahead d finish, sure. justice kavanaugh: same statutory interpretation issue in a non-agency case, could the court decide it? and if the answer is yes, the court could decide it, then the law hasn't run out, so, thefe, you could ask yourself that question in an agency case. if this were a non-agey se, would we come to an answer on this case? and if so, you d't go to step two. what's wrong with that? and if that's not correct, cause i don't think you're going to agree with that -- how would you define when the w ns out short of that, which i think is a problem, as you said, hard to speak in geralities about this. that's the problem. general prelogar: ye so you predicted my answer. i don't agree that it's only in a circumstance wrehe statute would be incapable of the court issuing a decision at the end of day. of cours ia case comes to the court and it has to resolve , 's going to have to do its level best. but what i meant by the law running out is that if the court has walked through all of the tools of construioand interpretation and doesn't think

that congress actually directly spoke to this issue, congress itse dn't resolve it, then the kinds of tools the court is going to have to use will be ones that sound in things like the overarching statuty objectives that congress revealed as part of its plan. and i think that in a -- a chevron ciumance, the insight of the court's opinion there was that the court doesn't have tgon and itself supply the answer when, actually, the be w to understand congress having not resolved it itself was to make the primary decisionmaker t person with the primary role in the first instance to be the agency. chief justice roberts: thank you, counsel. justice thomas, anything further? justice thomas: just a -- a couple questions. you said that in an exchange with justice sotomayor ande that congress could require some deference when ica to questions of statutory interpretati.

and in 706, the reviewing cot shall decide all relevant questions of law, interpret constitutional and statutory provisions, et cetera. could congress also require deference on the part of the court with respect to constitutional issues? general prelogar: so i think that that would raise distinct es in light of the different history that would be in p that kind of hypothetical. there has not been a longstanding history of courts deferring to agencies when it comes to interprthe constitution, so i think there could be a unique article iii interest at stake there. but the history nsn precisely the opposite direction when it comes to statutory interpretation, where agencies themselves are charged with administering it because, as we've tried to explain, chevron was not an innovation, it was these principles of deference go all the way back to the very founears of the republic. ey're reflected in things like mandamus pcte, where virtually all executive action for the first hundred yearof our nation's history was reviewed deferentially, and then

it was continued in a long line of cases from this court recognizing specifically that in a circumstance when u ve the executive administering the statute, congress could delegate and could expect for those delegations to be respected. justice thomas: i think mandamus little bit different and the other extraordinary writs in that you had quite a high hurdle before they became applicable, but we normally say that this cot views questions of law de novo, and that includ statutory and constitutional. how would yodiinguish that normal practice from what you're saying? general prelogar: well, i think imore nuanced than that. certainly take the point that the court reviews many leg questions de novo, but that's not invariably the case. there can be issues that arise under distinct statutes that set forth moreefential standards of review. aedpa is a good example of that. there can be circumstances like

maam where the nature of the action itself dictates a mor derential standard of review. and i just don't think it would be accurate to say aa iform, across-the-board matter, de novo is the standarth always and invariably applies. that'innsistent with cases fromhicourt that were cited in chevron, going back to the rl1800s, things like edwards' lessee versus dby where the court itself was recognizing that in a riy of contexts where you have ambiguity in partilaand you have an expert agency charged with administering the statute, deference can be warranted. justice : thk you. chief justice roberts: justice alito? justice alito: can you provide a concise definition of what "ambiguity" means in this context? general prelogar: ambiguity exists when the cot s exhausted the tools of interpretation and hasn't been able to arrive at confidence that there is a right answer that congress spoke to the issue. justice alito: well, as justice kavanaugh's recent question presented, in cases that don' involve an agency, we never say

we have exhausted all of our tools of interpretation and we just can't figure out what this means. so that would emo suggest you never get to step two. geral prelogar: but the relevant question at step one is whether congress is, in fact, resolving it or delegating it to the agency. so i agree that in a circumstance where you don't have an agency, the court can't give effect to any delegation and, instead, the backup option in a situation where an agency would otherwise be available is the court has to do it, but i don't think that that undermines the very real on-the-ground possibility that congress is legislating and meaning to give the agency the gap. justice alito: well, i come back to the question of your fition of ambiguity. and what i heard you say the first time was it's when we've used up all our tools d can't figure out what it means, then it's ambiguous. so do you want to provide an alternative definition? general prelogar: so i think maybe the bestayo try to clarify what the definition i'm trying to give is to use an

example of something like a statutory term ke "reasonable." justice alito: -- really would just like a definition so that all the courts that ve to apply the regime that you're voting will be able to apply it in the ma dferent cases that come before them. general prelogar: the courga this definition in kisor five years o th respect to auer deference, and i think it's th right definition to use -- here as well. juste ito: what is it? general prelogar: when a court haused or exhausted the tools of interpretation and doesn' believe that it reveals a right answer. tt circumstance, chevron said the right way to think about that statute -- the real right answer there is a delegation. juste ito: but again, i think you -- you're running into the obm that we never do that in cases that don't involve angey. general prelogar: because in those cases -- stice alito: so i think you've got to provide a different finition. now, what i heard you say at a couple of times duringou argument was it's when we can't figure out what congress intended. is that what you meatoay?

general prelogar: that is the inquirth chevron prescribes that you should be -- and this is drawn from footnote 9, which is another formulio of this, use the tools of interptaon to see if they reveal congress's -- justice alit wt do you mean by what congress intended? do y mean to say that you get to step two whenever we don't inthat a majority of the house and a majority of the senate had an intent on the specif qstion that is before the court? then you'd always get to step two. general prelogar: no. so i don't think it'abt individual legislators' intent. i think the court in chevron used the word "cones" but you're really looking at the statute and what the statute reveals about whether it's resolving an issue or not. justice alito: thank you. chief justberts: justice sotomayor? justice sotomayor: there hasn't been much discussion on why this is entitled to statutory -- stare decisis consideration. there's been an argument by petitioners th 's not really a holding of a case; it'

a method only, and we have said in the past that a method th lor courts have to use is subject to change we can make without considering stare decisi so could you address that argument? geraprelogar: yes. and i think that petitioners have pointed to two relevant types of cases tt ey suggest just mean stare decisis doesn't apply herer applies in particularly weakened form. first, they say the court has sometimes changed the interpretive tools it consults. things like legislative sty might have been in greater favor, at least with some justices, before and maybe have fallen out of favor later. but i don't think that those provide a parallel at al because the court has never distilled those kinds of interpretive tools into a governing framework. it's never, for example, dictated to lower courts you should be applying listive history in all cases. and so i don't think that it has the same kind of roots in the type of ndg governing framework that chevron has,

which really has functioned in quite a different way with respect to how you understand and implement congress's directives. the second casth've pointed to is pearson, which held, in the context of the saucier rule, that that was entitled to weakened stare decisis. but there the court said that is entirely a rule of internal judicial management about ho courts decide issues and quence their decision-making process. doesn't have outward-looking consequences, and it wlde foolish to require congress to step in to fix it. there, too, i think that the considerions run in ely the opposite direction her because chevron is not just a binding framework about how courts conducthe business; it also gives notice to the legislature about how statutes will be construed. and if the got this wrong when chevron was decided and was wrong about legislative intent, congress is there at tdy and is perhaps the best part or institution in government b able to correct it and actually y, going forward, what it wants the ground rules to be. and e nal thing i would say, justice sotomayor, is that these were precisely the kinds of considerations that the court

took into account in kisor in applying t songest form of stare desito auer deference. my friends have largely ignored 's analysis on this. this was the majority of the urt where the court said congress can step in, th deference decisions are balls that are lobbed into congress's cot,nd there are big reliance interests at stake because there are dozens in that se, here thousands, of decisions that could stabe displaced and create chaos if chevron is oed. so i think that, from a stare decisis perspective,ha precedent counts as precedent too. justice sotomayor: there -- and you answered the reliance question, because one of the nts on the other side is no one has -- well, the first argument, that thcot hasn't applied chevron in how many years, and so nobody should have legitima riance interests. and the second argument against reliance i no one should have reliance on a wrong interpretabasically. general prelogar: yes. and i think that those kinds of kisor and also inconsistent with

what we know abouthappens in the real world. there are agen rulations out there that have been on the books for decades. pele have made investment decisions on the basis of that people have decided what contracts to enter intonhe basis of that. states in cooperative federalism programs he signed and invested the resources into theishe of that program. and all of that could be thrown into disif now it can be subject to renewed challenge on the basis that that regulation was upheld answering the wrong question, not looking at whether it conflicts with some purportedly better interpretation of the statute. chief justice roberts: justice kagan? justice kagan: there's been a fair bit of talk, generaut how because you don't have a formula for saying when there's a gap or ambiguity so that you go to step two or because judges may have different tendencies, you know, which might be temperamental as much as anything else, to find ambiguity, because of that

there's going to be some variability. and it's hard to argue that it will be some variability, but could you talk about the variability in the alternative scenario? general prelogar: this is a really important point to cu on because, as i was trying to say earlier, in a worlwiout chevron, it's not as though congress is always goingo speak clearly and it won't leave gaps or ambiguities in statutes, genuine ambiguities where you apply the tools and at the end you are left witnoertainty about what congress was trying to do. and in thaciumstance in a world without chevron, what we'll see is what justice alito was suggesting, the courts will have to go on and try to answer the question. buthe are 800 district court judges around the nation, and i think it's fairo y they will likely have different takes about what to do in that circumstance and what to give greater weight to and how to ultimate fl the gap in administering the statute. and that's going to create problems for a couple of different reasons. juice kagan: and those differences, to go back to justice alito's earlier question, i meanthe differences were parofhe impetus for chevron be

those differences were looking awfully idealogical in nature, awfully partisan in nature. and chevron, all the empirical evidence suggests, dampens that kind of idealogical division between courts. general prelogar: that'ght. to support that judges have ance easier time reachingn ground under the chevron framework and atea identifying when they can agree that congresdinot itself resolve an issue, than they do when they have to ultimate g on and try to figure out what they are going to say is the bottom line of the best way to the statute into operation. so i think that that is roed in chevron, and it julects as well this uniformity concern, one of the basic justifications for chevron and the reasons why this inference of legislattent is sound, because agencies can provide that kind of uniform rule for the nation, subject to the ground rules of course o judicial review under chevron. but i think that the alternative world where there's chevron is that there will open up wide disputes amo lower courts,

maybe on these mine-run statutterpretation questions in complex programs, things like medica id, and i think that it could mean that regulated parties are subject dferent rules in different parts of the country. yolo the uniformity value, and it diminishes rce of the political accountability value. so i think congress would have very good reason to think that agencies should do this and that courts should respect it within the bounds of reasonableness. >> justice gorsuch? >> you agree that courts, under thap have to review questions of law involving the constitution dno? general prelogar: yes. i think there might be certain circumstances with respect to certain provisions where more deferential standards apply, but i certainly agree they d't defer to agencies. justice gorsuch: ok. and you agree that, elsewhere in the law, when posed with questions of law, courts review those de novo, generally speaking? general prelogar: i think that, in many contexts, it's de novo. certainly not in all contexts. justice gorsuch: the examples you gave, i think, were aedpa and mandamus, right? neral prelogar: yes. i think those are two go examples of situations where

there are specifications of a standard of review that's more defereia justice gorsuch: i wonder whether those have mortoo with remedies, right? in aanmus case, a court should say, or can say, what the law . it just can't provide relief unless its conviction about the atute meaning is sufficiently clear. sa tng in aedpa, that we require a heightened standard before relief is granted. same thing in sovereign immunity contexts. we may think the statute says the government's liable, but we impose hher standard before we grant access to the fisc. general prelogar: so i knowledge that i think that many of those doctrines tn on limitations built into the writ or limitations on remedies. i don't think it would be right, justice gorsuch, to say that in the mandusases, what courts were traditionally doing is saying let me put aside what the executive officer did and just interpret the statute deov and say what i think the right answer is. and the ghanswer is the executive was violating thla but not clearly outside the scope of the

executive's authority. justice gorsuch: but he could do so jt we do in the qualified immunity context. there are two steps tohat analysis. you can just go to the second one and resolve itnday, ah, it's not clear, so i can't provide a remedy general prelogar: but i think, for petitioners to succeed on their article iii argument, they have to show not just that you can review de novo, but you have to. justice gorsuc -i'm not asking about article iii. i'm just asking about the apa and what it means. general prelogar: yeah. so sorry if i misundstd. i do think, though, that what the history shows at the very least is there h bn no fundamental rule in this country leading upo e apa's enactment that you have to review all questions de novo. and that's where the history the apa really matters. this court has several times recognized the apa was a restatement of existing judicial practice when it came toevw of agency statutory interpretations. and as we've explained, there are really deep roots here, a long line of precedent and history showing that courts will sometimes defer.

just as gorsuch -- justice gorsuch: you do point out cases like edwards' lessee and others where this court gave spect to the federal government's contemporaneous and unor interpretation of the statute. and that's exactly what sdme does. it gives respect to contemporaneous and ifm interpretations. t chevron, it doesn't matter etr it's contemporaneous and uniform. could be novel and out of the blue and inconsistent with everything that came before and it still gets deference, right? general prelogar: i disagree with the idea that those cases stand for the more limited justice gorsuch: well, i'm -- adg from them, but okay. general prelogar: trere dozens of them. so i acknowledge that they use varying formulio, and maybe you can find some that look a little more like sdme. i think i have a lot that look a whole lot like chevron -- justice gorsuch: let's say you don't. then what? general prelogar: well, i think i -- i just have to dispute the

look at gray versus powell, look nlrb versus -- these are cases in the 1940s that were leading casein administrative law. justice gorsuch: oh, i -- i put aside what happened in the '40s becae went back and forth and wound up in 10 you wanted to say it's a very old thing, and the old cases don't lo athing like chevron. they look a lot like skidmore. nel prelogar: i -- i disagree with that. mef them -- y u should give it controlling weight, it should tip the balance. they're not saying just pay attention to it if maybe it has the chance of persuading y. justice gorsuch: if it -- if 's contemporaneous and if it's uniform, right? general prelogar: and i just want to add as wel-- justice gorsuch: i -- i have another question, though. chevron, you empsi, is -- value-neutral and it'll sometimes favor industries that are regulateansometimes favor the government. and i can certainly see thatn scenarios whe talk about the flip-flop of administrations and w ople leave -- come in and replace others and -- and e's a lot of movement from industry in and out of those encies. i think george stigler talked

about regulatory capre i don'woy in a chevron regime about those people. they can take care o themselves, okay? there pitical account, fine. the cases i saw routinely on the courts of appeals -- and ihi this is what niggles at so many of the lower court judges -- are the immigrant, the veteran seeking hibefits, the social security disability applicant, who haveo wer to influence ageneswho will never capture th, d whose interests are nothe sorts of things on which people vote, generally sakg. and, there, chevron aost always, i didn't see a case cited, and perhaps i missed one, whe evron wound up benefitting those kinds of peoples. d seems to me that it's arguable, and, certainly, the her side makes this argument powerfully, that chevron has this disparate impact on different classes of

persons, and i wanted to give you a chance to respond to that. general elar: sure, and i have a couple of different reactions to that. one is to say that i, of course, acknowledge that the way tt chevron operates, it gives effect to agency interpretations even in circumstances where that might be oppositiol,ome of the categories of individuals that you're identifying. but, if it does that, it does that in accordance with congress's intent and wishes because even my friend agrees that there are certain deons that congress can make to agencies and certain gap-filling that agencies can do i don't think there is a kind of fundamental flaw. justice gorgeous -- gorsuch: it is in favor of the immigra, favor of the veteran and the soal secit applicant, but because of a fictionalized

statement congress wanted when it did not think about the problem, the government always wins. generaprogar: there are a up of different ways to commit the concern. it is noju in the exercise of discretion e urt with think something is fair andor the gap in that way, but rather the core tngs that actually the reason it is fair is because i have a sense that congress spoke to this. i can determine a based on all ofheools. justice gorsuch: ido not matter whether congress actually thought about i a that there are many instances where coress did not think about it. d every one of those chevron's exploited against the individual a ifavor of the government. general prelogar: i do not think it is fair to trt that as an exploitation. congress has been aware. can change chevron at any time. it can displace if you think that is being used in a situation not warranted. justice roberts: justice kavanah.

justice kavanaugh: i think the other side's argument suggests the sianalytical concern at the heart of chevron is that it treatsaws policy. and if that is antithetical to our constuonal structure and the rule of law. and thats why the footnote nine question is so poant. because if you use the traditional tools in nagency case and got an answer that suggests it is a statutory interpretation question. and y a saying, no, you can stop short of that in ancy case in some difficult to find -- define point and treat the rest of the case as a policy call for the executive branch. and that is treanghat was a law question in an nonagency ses a policy question in an agency case, and it is the same question. so it is transforming law into policy. and that is very difficult, i think, to accept, if you accept thidea that a premise of the

rule of law is that the executive and the judiciary cannot jt eat the laws passed by congress as mere expressions of policies that they can change. respond to that. general prelogar: i hear that concern. i think the way to address that is to readdress the principain footnote nine. wegree that is an important principle. and to the extent there are agencies or lower courts that areffectively not giving the effect to congress's own enactments tn court can police that and put into affect thfootnote 9 principal in a robust way with a rigorous analysis. that is the kind of instruction the court gave in kaiser. justice kavanaugh, i think it's not a differenqution in the agency context and nonagency context. what i understand chevron to be dog is figure out a congress spoke to this issue. and s implement it. but hold open the possibility congress did not speak to the issue.

and in that context, if congress has given e ency this primary, critically important role to administ t statute, that should give deference if the agency stays within the un congress set. in an nonagency case y d't have the agency to relying on. you might end up thinking congress did not pcily speak to this issue, but what is the best that i can do to figure out how congress would have resolved it or what is the interpretation most csient with the overall statutory scheme here? th right way to resolve this case, congress would know that courts are going tha to do that in a context without an agency. it is still following the terms of the statute. i think it would be a fiction to suggest that what the court is doing there is following congress on explicit expression of the mte justice kanah are -- kavanaugh: i think it is important to distingshtatues that involve legal questions of statutorinrpretation. there are tons of statues, let's go back to the a.i.

ame, that explicitly confer broad policy discretion on agencies. that is where state farm kicks in. anth is where we have always been deferential general prelogar: crect. justice kavanaugh: you acknowledge those are two dierent kinds of statutes. one statute that says for example no one can catch more an0 fish today. thnext statute is basically the agency can define what a reasonleumber of fish that can be caught in a reasonable day. the second statute cfers broad policy discrio do you agree those are distinct? general prelogar: i think that one is a clear bestowal of discretion on the agency. i think it shows congress can legislate in a variety of ways justice kavau: so you agree congress can legislate broad licy discretion to an agency or grant explicitly through words like reasonable, appropriate? general prelogar: absolutely.

i think the sameueion and sometimes come up in those context. congress has had to borrow from the chief justice's example, reasonable truck lengths, ther isn't an agency interpretation. the court is going to have tdo its best. that is actually meaning to create a zone of dcrion. justice kavanaugh: that t state farm question as i would see it. two more questions, i want to ke sure the concerns of the other side get a chance respond. some of this would be taking wer and grant to get to the judiciary. there is a differe cception of chevron that it is taking power from congress and shifting ito the executive and allow ed the executive in essence to unilaterally make policy without congress. d one of the concerns historicallyrothe beginning of this country was unchecked executive power. and you hear presidents criticizedllhe time, whether it is roosevelt, rean,ush or

oba,riticized for exercising unchecked power. the concern is abo cvron ushering in aggressive assertions ounateral executive power. and that is the concn at i think the other side has. noabt the judiciary taking power, but the judiciary havin tang it from congress and shifted it to the executive contrary to her usual concns general prelogar: i disagree with the characterization that chevron permits and congress is powerls do anything. in the first instance congress has to make the delegation to the agency and t crt can enforce that, and so congress knows to speak patiently -- capaciously when it wants to bestow discretion, to speak plainly it wants to rain an agency in and resolve an issue itlf. congress can change the rules of

deference that apply in any context. there have bn rticular schemes where congress has said deference does not exist. do not apply or defer to this agency and not this other agency. congress is really in the driver seat here. justice kavanau: is is a technical point. most presidents would veto or get rid of the chevron deference. that's e technical points. last question, which is there was talk abo docratically elected political branches. i want tgeyour agreement on something that i think you will age , the role of the judiciary historically under the nstitution to police the line between the legislature and the executive to make sure that the executive is not operangs a king and is not operating outside the un of the authority granted to them by the legislature. you agree that is a proper judicial role? general prelogar: i agree with that, but i think chevron is consistent wh at. the court polices the executive at that one by ensuring congress his own choices are put into

operation. if further polices the executive at step two asheourt said in kaiser, reasonableness is a test that agency can il -- fail. there is work to be done to make sure the agency doesn't transgress some outer boundary line that congress set. ste rober justice jackson. justice jackson: picking up where justice kavanaugh left off, that's in the court have to not only police the other branch, t itself as well? by that i mean to the extent that the otheridraises the concern that, you know, they are trti law as policy. isn't there a concern that licy questions might be tread law and that what chevron is doing is also helping the court to police its own determination in that regard? general prelogar: yes. and i think a watollustrate is to think about a delegation like the deceptive pctes as defined by the secretary. if there were a statuehi -- statute that said that, of

course the court couldn't co in and say the secretary said what is dective practice? i think there is a better way to think about e ncept of what is deceptive. theror i am not going to override what the agency is done or not givanweight to it. congress has directed what you should do as a crts paying attention to what the secretary did. the secretary was given that role in admisttion. obviously chevron applies to circumstances that delegation is to identify the same basic idea where i thk e courts rule -- justice jacksy isn't the answer with the other deaid, which is really make congress a that? in other words, it seems to me their argument is when we are policing this line between what is law and what is policy we should rui congress to say the secretary gets to make this decision. and when it doesn't, i guess we look at it as a legal question that the court can decide? general prelogar: tnk that argument would have more merit if there were't much water under the bridge in the fact that the court explained when or

what identify this kind of delegation 40 years ago. petitioners talked about the reliance interest year and tried to diminish them. they did not tk about congress's own interests and relicen chevron. i think at this juncture, to say that we are going stch to default and make congress a discretions part would be to run to the detriment of congress's own reasonable expectations wh spect to drafting. it also does not account forhe category of cases where the language congress is using is infused with discretion. they agreed to terms like reasonable, appropriate, necessary. those are terms that require greater application to fill in the deil you cannot interpret them in a vaum so i don't derstand how this idea of making congress sait could function in that kind of world. and in the final thing i congress has said something very important here, thagcy shall administer the statue with regulations or adjudications

ave the force of law. that is part of the statue as statute as well. justice jkson: you think that really carri aot? i've heard you focus on that many times when you are lkg about a situation in which deference should be required. general prelogar: exactly, congssn each and every statue where this is going to be applicable ochron deference will be available is going to ha me that judgment in the statute to give the agency tha responsibility and role in implementing the statute. juste jackson: let me just ask about whether or not gngo the issue of ambiguity, which has come up many times, whether or not the court could clarify enhere is a gap or ambiguity that allows for or requires the court to go to step tw and what i am thinking abouts what i mentioned about previouslyityour friend on the other side, which is some schorsave actually identified different kinds of ambiguity. statute that uses a broad term and that term encompasses a

range of reasonable meanings. there are three or four different ways that could be reasonably, you know, the meaning of stationary source, for example. but then there is also the kind of ambiguity in which a statute can annly one thing, either letter a or b perhaps as of the way language is put forward in the statute. it is nclear. whether it means a or b. ta the scholars to mean that really in the foercenario is the one in which we have a situation whe evron deference would be required. and could the court say something like that? let me clarify, i look at it as that is reducing to a policy ch that once wen the world of finding the kind of ambiguity where there are a number of asonable alternatives in terms of making this determination, then it is just going to be a

policy choice as to which one congress wanted in some sense or which entity congress wanted to make that decision. general prelogar: so i think the certainly this court could provide more guidance to low courts. and in particular identify the types of statutory isss d might clearly note discretion. there are going to be some easy calls ts. the types of situations where there might be multiple ways to implement and signal there al is a zone of discretion and the agency should have flexibility. my only concern with going down the road of saying there i some fundamental ffence with respect to particular terms that might be subject to only two possible ws be implemented is that there is kind of an endless number of statues out -- statutes out there and all kinds of varieties. i worry that it might side of certain context where congress actually is comfortable with i the way of implementing that paicar term, even if there are only two possibilities, and did inacdelegate that issue to the agency.

so ioun't want some kind of bright line rule to diminish the court's ability to recognize and implement that kind of delegation. thank you. justice roberts: thank you, general. mr. martinez, rebuttal? mr. martinez: tha y, your honor. first of alli ink it's really important to be very clear about what chevron does. it takes the power to say that thor what the law means. to say that the law means x, it takes that power ay om courts and gives it to agencies. if then forces agenc -- forces courts to adjudicate the rights of indidu litigants that are in front of them bad on a version of the law that the courts themselves do not believe is correct. do not believe is the best interpretation. neither congress norhicourt can create a doctrine for -- or legislative statute that effectuates that reallocation of interpreveuthority. my friend on the other side that the purpose of chevron is to set the ground rules on how the different branches of government should operate.

with respect, think the constitution says to ground rus d it makes clear the judial power rest with the courts, not with agencies and ceaiy not with congress either. i think the apa reinforces that. the solicitor general tries to sc or reconceptualize chevron by takinise with our argument that under chevron if the court thinks the best interpretation is x it will have to apply y because the agency told it to. that is exactly what chevron says. it tells the court tt has applied interpretation that the court itself would not choose. interpretation that the court itself ds t think is best. the solicitor general also described chevron as applying in the formulation that hurt a lot, it applies that the agency didn't resolve the question, an innocuous raising. what is really meant by that is chevroapies in cases of ambiguity.

and ambiguity has always bee understood as a situation where asonable people can disagree about what the law mes. that just broade t scope of deference. ambiguities are all over the ace. cour resolve ambiguities all the time, that is core to the teretive function. there is no reason to think just because ngss is accidentally left an ambiguity in the statute that what itrying to do is have it resolved by policy decionmade by an agency. justice barrett asked about the justification of chevron rather the intent justificaons valid? i took my friend to concede the delegation is fictional. but nonetheless to say we should applitnyway as a presumption. i do not think you canethe mileage that you need to get out ofhe intentional delegation theo aer you have conceded it is fictional. the only reason it has weight is if it is actually what congress wanted to . if congress did not want to delegate it, then we shod t

be reconceptualizing how w think about statutory interpretation basedn fictional premise. here there is no rean think congress actually wanted to delegate policymaking authority to agencies to resolve any ambiguity th ases in any statute administered by the agency. i think the government solutio to that obm is to propose a clear stemt requirement on congress. hey, you can just legislate re clearly. amguities are unintentional. i do not think that works. i think that would impose a massive clarity tax that is unjustified. i think the precedent made very clear they were talking about redies in those cases that expressly say if we were interpreting these legal issues in a different context where we were not limited by thlits onanamus remedies we would apply our be a independent judgment. the solicitor general is looking at text that requires us to interpret statutory provisions.

and is saying that rule interprets statutory pvisions and is consistent with chevron as she describ aallocating interpretive authority to agencies. the statutes say courts get the interpretaon chevron says agencies get interpretive authority a n court. these are inconsistent. finally with respect to the course correction eaor the amended approach, i would respectfully suggest that you have tried to mend this and course correct over and over. thats y we have a chevron doctrine. it is overlaid with a lot of bells d istles. it is very hard to apply in prtice. i think in the real world if you try to mend without enngt you are going to put a lot of pressure on the major question doctrine. people will beomg to this court every become to the court every three or four years after you to adopt a new limitation, a new caveat. we would suggest the solution here is to recognize the fundamental problem is chevron itlf.

interpretive authority belongs to the courts. if we have the best