doctrine or keep it.

hear argument first this morning in case 22-1219, ress versus the department of commerce. mr. martinez. oral argument of roman martinez on bof the petitioners martinez: mr. chief justice, and may it please the court: for too chevron has distorted the judicial process and uned statutory interpretation. it should be overruled for three reasons. chevron violates the constitution. article iii empowers judges to say what the law i it requires them to interpret federal statutes using their best and independent judgment. chevron undermeshat duty. it reallocates interpretive authority from courts agencies, and it forces courts to adopt infagency constructions that are issued for political or policreons. in doing so, chevron blocks judges from serving as faithful agents of congress. ittes judicial bias and encourages agency overreach. and by removing key checks on executive powethreatens individual liberty. chevron also violates the apa. the most straightforward reading of secon06 requires de novo review of legal questions. congress put constitutional and sty interpretation on equal footing, and it required independenl judgment as to both. asustice scalia wrote, the

apa's text contemplates courts, not agencies, will authoritatively resolve biguities in statutes. and, third, this court's only justion for chevron is the implied delegation theory, but that theory is a fti. there's no reason to think that congress intends everyuity in every agency statute to give agencies an ongoing poweto interpret and reinterpret fedew in ways that override its best meaning. in this case, the agency misinterpreted the mforce struggling fishermen to pay up to 20 percent of the aual profits to federal agents. the government says that even if all nine of you agree with us that the agency'construction is worse than ours, you should nonetheless defer to that construconnd uphold their program under chevron. that's not consistent with the rule of law. if we have the best view of the statute, we should win this case. i welcome the c's questions. justice thomas: mr. martinez, how much deferen iin tension

with the judicial role? martinez: i think it's very much in tension, your honor. justice thomas: no. how much would it require? i an, your argument is that chevron deference is problematic. w do we determine how much deference is too much deferenc martinez: i think you've certainly crossed the line when yoha a rule that says that interpretive authority from -- from article iii cou an agency. and so, when -- when you've got deference that amounts to that, which is what chevference is, then i think you've -- you've crossed t line because what you've really done is -- justice thomas: i think what i'm trying -- what i'm asking is, how do we know where the line is? show deference. you -- there's skidmoreence. martinre. justice thomas: we are deferential in fact finding, et cetera. so i'm just trying to determine whether you're saying that we -- if it's not de novo review -- martinez: right. justice thomas: -- witny it's problematic.eference, then

martinez: i -- i think deference becomes matic when it requires a judge to say that the law means x when really the juinks the law means y. i think skidmore deference is not problematic because it n't require that. skidmore deference essenti says -- and we would be very comfortable with skidmore -- that because the agency has a -- has an important re play in the process, often the agency has helped dra t statute, the agency has knowledge of the policy conte srounding the statute and its implementation. ofoue, courts should pay special ultimately h tbring its expertise to bear in a way that's persuasive. and if the -- the couri't persuasive, if the court thinks that the law means x even though the agency thinks the law means y, then the court needs to go with the best interpretation of the statute, just like it does in every other -- chief justice roberts: well -- martinez: -- area of statu or constitutional -- chief justice roberts: -- let's -- martinez: -- interpretation. chief justice roberts: -- let's department of transportation will set length limits for uc that are reasonable. martinez: right. chf stice 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 authorityay they've got to be reasonable. that's a rmhat courts apply in many situations. martinez: i -- tnk that a court looking at that statute would try to determine the best meaning of the statute, and e best meaning of the statute there would be that -- that the use of the term real -- "reasonae"onfers upon the agency discretion to choose among certain pocyptions. now that doesn't mean that the en can just do whatever it wants because there are limits, and e urt has to police that limits. michigan versus epa is gd example. congresssea broad term like "appropriate" and the question was -- whichs milar to "reasonable," in giving the agency -a range of discretion. but, at the same time, when the agency said, well, we don't have to consider costiniguring out whether something is appropriate, the court said , that, as a legal matter, the stnterpretation of the word "appropriate" in the conte o this statute requires the agency to consider costs. chief justice roberts: well,

what if the statute yshat the agency can regulate truck -- uclength for vehicles that travel in interstate commerce and the's a question whether or not interstate commerce -- the -- the delegation for interstate commerce is satisfi when particular -- martinez: right. chief justice roberts: -- circumstances are present. martinez: i -- i think that that would be a casifou're -- if the court were called upon to interpret what- the dispute was about whether -- what interstate commerce means, i think that would be clsic legal question 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 limitations, it highlightsheact that, really, the same rules should apply to interpretin constitutional -- chief justice roberts: well, i mean -- martinez: -- provisions as statutes. chief justice roberts: -- you cod agine -- you could imagine situations where the

interstate commerce determination is peculiarly fact-bound, you know, trucks transferring loads and -- at transfer points on the border. is that in interatcommerce for each one or not? and isn't the policy jgmt of the agency pertinent in that situation? martinez: i think, certainly, the policy judgment t agency is -- is pertinent in determining sort of the facts because the agency might be on thground and understand the factual scenario. but i think there's a -- an important legal component to that question, that in any other context, like, for example, if you were interpreting the constitution, i think the court would -- would quite reasonably think it's its own job to intethe nstitutional requirement of interstate commerce and would -- would say -- would give it its best meaning. and i think -- justice kagan: well, let me give you -- martez-- the same approach -- justice kagan: -- a few more examples along the same lines, mrmartinez. is a new product designed to promote healthy cholesterol levels a dietary supplement or a drug? martinez: sorry. can you give that one more time? justice kagan: n product designed to promote healthy choltel levels, is it a dietary supplement -- that's a statutory term -- martinez: ok. justice kagan: -- or a drug? martinez: i -- i think it wod depend on -- on the -- the original understanding of the text of that statute in -- read icoext. justice kagan: you -- you want the martinez: and i think that's a -- a legal question for a court. justice kagan: -- yothk that the court should determine whether this new product is dietary supplement or a drug without giving derce to the agency, where it is not clear

from the text 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 kagan: you want the courtso cide that? martinez: justice kagan, i think with respect to that questioor any other of the -- a legal qution, i think what the court would do, there -- there are gointoe hard questions, but i think the court would bring all the traditional tools of construction to bear -- justice kaga they do that -- martinez: -- and would -- justice kagan: -- under chevron. they -- you know, we have made ear all the traditional tools, if you can find an answer, that is the answer. so the courts ry rarely in the situation in which you're talking where tnks the law means x and instead it says y. if it thkst means x, under chevron, as we've understood it and made clear and reigned it in a lileit over these last few

years, it's supposed to say x. but memes law runs out. sometimes there's a gap. memes there's a genuine ambiguity. and i -- i don't kn. in that case, i would rather ve people at hhs telling me whether this new product was a dietary supplement or a drug. martinez: so, your honor, i think a couple thing first of all, i don't think chevron is a doctrine that only applies to tie-breaker 50/50 scenarios. 's never been understood that way. you know, justice scalia in his famous article in 1989 -- justice kagan: it's not a tie-breaker. there are just some times where you look at a statute and the most hont ading is that there's -- there's -- there'a gap there -- martinez: but -- justice ga -- because of the limits of language, because of the limits oouability to predict the future.

and so who fills that gap? martinez: bui i guess what i would sort of push back on is i n't think there's a gap if the court looks at the statute and in, hey, this is a really hard case, it's a really close statute. fifty-two percent likely, i think -- you know, i have 52 percent confidence that x right -- justice kagan: i'll give you -- martinez: -- 48 percent likely -- justice kagan:-'ll give you other one, mr. martinez. does the term "power production" -- 'm just -- these are real cases. martinez: right. justice kagan: these are -- these are prototypic cvron cases. martinez: but -- justice kagan: does the term "power pduion capacity" refer to ac power that is sent t the electric grid or dc power that's produced by a solar pal? martinez: i think same answer as the first hypothetical. but t try to -- let me try to sort of give you a different frameworfothinking about this problem. let's imagine that that stut came to a court before an agency had even acted in the first place. what would a court do? would a court look at the statute -- a statutory term like that that'a hard -- presents a hard interpretive question d y: well, this is hard, it's sort of 52/48, it's kind of close. i think the law has run out and i'm just not going to be able to decide this. i think the urwould go with the best interpretation. justice kagan:he- the -- the -- the court might -- the court i that case would have to make a choice. but, you see, here, the court can say, you know, the best option is to listen carefull and to defer if it's reasonable and if it's consistent wh 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 questionsit within a broader statutory and gulatory scheme, to people who have underanng of the policies and of the facts that led to this. i'll give you a third example. martinez: can i reon justice kagan: and this will be my last one, mr. martinez, a it's going to be fairest one because it'gog 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? martin: think that the decision in chevron was -- reflected the best interpretation with much respect jtice gorsuch's mother's epa. we think thath was the best terpretation. but -- but can i just go back and i think whatouescribed earlier about listening to the ency and taking into account all those things, our -- our ruleou allow that. that's skidmore. i think the only difree between our rule and -- and the skid- -- what -- the sdme

sort of approach and the chevron approach is that after listening to the agency's plation of all the things that you said, if the court isn'persuaded by the agency that the agency's interpretation is correct, chevron would say you still have to go with the agency. and th's just like a dramatic thing. justice sotomayor: but why not? ing 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 therwe two plausible meanings, you went with the agency meaning. i think we'veonfar beyond that. it has to be two reasonable meanings. assuming -- you -- you make an asmpon that there is a best answer. i don't owow you can say there's a best answer when justices of thisou routinely disagree and we routinely 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 goitrong. [laughter]

justice sotomayor: and they often do. [laughter] justice sotomayor: but putting that aside -- but putting that aside, in those situations, there are two plsie -- not nearly plausible. there are two best answers. and the question is who makes the oi or helps you make the choice. and if the court can -- can disagree reasonably ancos to that tie-breaker point, and it could be 51/49, it could b 52/53, if it's that close, why shouldn't the person with all of the qualities you spe out, the entity with all of the qualities, expertise, experience, onhe-ground execution, knowledge of nsuences, why shouldn't deference be given to that entity?

martinez: justice sotomayor, i thk ur explanation of ambiguity just now just proves the problem with chevron because i think what you said is that ener there's a case, a statutory case in which the memberhe crt disagree that's essentially saying the statute is ambiguous because reasonable people can disagree. justice kagan: that's what nobody believes -- martinez: well -- justice kagan: -- about chevron, mr. martinez. as we've described it, if you -- you work hartoigure out a statutory problem. you don't say, oh, it's difficul oh, there are two interpretations. oh, you know, not everybody agrees with this in three seconds flat. you don'sathat. you do everything you do, look at the text, look at legislative history if you believe in legislative history. look at context. look at evy ol you can, and still there are places where we don't ow whether this drug is a -- is a -- is a -- whether this product is a drug or aiery supplement, and it's best to defer to peoplwh 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 they don't know. martinez: i -- aee with that, justice kagan. but, with -- with all due respect, i -- i think i understood justice sotomayor to be saying that whenever judge -- justices of this court disree about the best meaning of the statute, because, obviously, everyone on the is reasonable, that shows that 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: thawa't -- martinez: -- step one. juicsotomayor: -- my implication. my ilition was that using all the statutory tools, you can still come up, using them in good faith, using them, you can stl come up with no answer -- martinez: well, i think -- justicsomayor: -- with no clear answer. martinez: -- i -- i think u can can come up with no clear answer because some justice sotomayor: or no best answer. martinez: -- bau 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 -- martineznono, because -- because, if you had the same atute with the same interpretive question posed to you tht the agency having acted, i do't think you would say there's no answer here. i think you would choose the best answer. justice gorsuch: i mean, mr.

martinez -- justice jackson: but, mr. martinez -- e gorsuch: -- i guess i'm what -- what's at stake heret -- given the questions because, as i understand justice kagan's hypotheticals, which are -- are hard ones, that one option would be to say it'ambiguous and, therefore, the agency always wins. that -- that'wh i understood chevron to mean at least coming inertoday. another would be to listen carefully to botsis and provide special weight under skidreo a coequal branch of government's views about the law,hi one would think we would do anyway, and that they would have -- have -- be considered great weht in arriving at the best answer and that that's at court would do if -- if there were no interpretive principles advanced by the executive branch, if therea't been some sort of rule or adjudication. is that -- is that correct? martinezi -- i think that's correct.

and i think the difference between the skidmore appac that you just laid out and the chevron approach is just, at t end of the day, once you've considered all the experti a all the information the agency has to bear -- justice gorsuch: who decides? martinez: who decides? who -- is the judge persuaded or not persuaded? justice gorsuch: is the judge persuaded at the end of the day, with proper deference given to a coequal branch of government, or does t jge abdicate that responsibility and say automatically whateverhe agency says wins? martinez: right, even -- even if the judge is not persuaded. justice jackson: but, mr. martin - then -- gorsuch: and then -- and justice jackson: -- doesn't that -- justice gorsuch: -- and then if i might just -- just finish up, what -- what'the effective difference of that? it seems to me that in the first case, when -- en judge says here's the law, it's settled, we're done, right? it can be appealed, but at the end of the day, if the supreme court of the united states upholds that interpretation, w're finished. whereas, under the chevron approach, are we finished? martinez: no.

justice gouc what happens? martinez: i think the agency can overrule what the court said. the agcyan overrule what itself said. i think that's a very strange thg,hat in every other area of statutory interpretation, we undeta the law to have one fixed meaning and the goal is to y to figure out that fixed meaning, but chevron by degn creates this world in which the agency is i-- because there's this zone of discretion, the -- the agey d ambiguity, the agency can kind of flip-flop and then force courts to flip-flop with them. justice gorsuch: and i'stck on that score by the brand x case, which inlv broadband, in which this court said, okay, agency, you autotilly win with respect to one interpretation of e sh administration, i believe it was, and then, of ur, the next administration came back and pros an opposite rule. martinez: right. justice gorsuch: andhen the next administration came back and flipped it back closer to the first. and as i uerand it, the present administration is thinking about going back to where martinez: that's -- that that's exactly right. justice gorsuch: -- where we started. main: that's exactly right, justice gorsuch, and i think it -- it plays up the real problem. chevron really is a reliceestroying doctrine. imagine if you're a person or a

regulated entity and you're trying to figu o what the law is. you should be able to rely on the best interpretation of the law and not have to, you know, chk the -- the c.f.r. every couple years to see if the law has somehow changed, even though congress hasn't acted. justice gorsuch: and that's the delta between skidmore and chevron? martinez: i think -- i think a's right. i mean, skidmore, i think, would allow for -- forous to give meaningful weight and consideration to -- to persuasive opinions by agencies. the only thing skidme esn't do is require a court to give up its -- its interpretive- timate interpretive say and defer to an interpretaonhat 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 posed with respect to reting -- interpreting a statute is a legal one. i see chevron as doing the very important work of helping ur stay away from policymaking, and

so i -- i'd like for youo rt of think of it through that lens and he munderstand why, if we do away with chevron's framework, ww't have a problem of courts actually maki aolicy decision. so justice kagan gave you a mb of examples, and i think the reas why those examples are hard or why they're ambiguous or whatever is because, at bottom, they're not asking ga questions; they're asking policy queson how is it that, you know, stationary source is tbe defined? that's not really a legal question. i mean, there coulbeeveral reasonable ways of interpreting that. and at the end of the day, i think the wai've been thinking about chevron is congress has given that picchoice to the agency. and my concern is that if we take ay mething like chevron, the court will then suddenly become a policymar majority rule or not, making policy determitis. so how can we avoid that? martinez: so we agree,

obvisl that -- that courts should not be in the business of policymaking. ani ink the whole enterprise of statutory interpretation, when properly understood, is -- is designed to take courts o policymaking because what the court is trying to do is- act as a faithful agt what congress has done and find the best -- justice jackson: but isn't that -- martinez: -- interpretation. justice jackson: -- isn't that what chevron does? i mean, isn't chevron, step one, even ith very case, asking the question, one, has congress made that policy determination? so, for example, her t question is whether or not monitors on the boats have tbe paid for by the owner of the at. i see that aa licy question. congress could have said yes or no. thers nothing about law really inherently in the question of shou t monitors on the boats be paid for by the owners or the gornnt. so step one is has congress in the statute answered that estion. when we say no, everybodes that's not in the statute, then we say the agency can make that determination so long as they do so in a reonle way.

so, for example,er the monitors on the boats have to be paid for by the owner of the at. congress could have said yes or. no. there's nothing about law really inherently in the question of should the monitors on the b be paid for by the owners or the government. so step one is has congress in the statute answered that on. wheny no, everybody agrees that's not in the statute, then ay the agency can make that determination so long as they do ia reasonable way. and the -- and courts sort of police the boundof reasonableness, but whether or not the monitors are paid for is not really a legal question. martezi think the question of whether or not the law allows the agency to -- for by private industry ise paid absolutely a legal question. i agree with you that when

congress -- justice jackson: but isn't that the same question aso ether or not -- isn't that just another way of saying, cs policy determination be made by the agency? martinez: no, i don't think so. i think the difference is when thhen the -- when the policymaker, whether it's congress or the agency, is sitting there and trying to re out, like, what the best policy is, would the world be a better place if industry has to pay for these monitors or not, that's absolutely a policy question. stice jackson: ok. so that's the question -- martinezbu-- but -- justice jackson: -- right? martinez: no, becae,hen it comes to a court, the court is nofiring out what the best thing for the world is. the court furing out, well, what did congress actually want here. it's -- justice jackson: but i guess i'm afraid that the court really is figuring out what the best thing in the world is if we -- martezbut -- but -- justice jackson: -- look at it through your lens, right, because, if the answero e question is, you know, should -- should they pay for it or not, the agency has a view, and unless we're deferring to that overriding the -- the agency'st policy prerogative. ma: the -- the question that the court should be answering is not should agency -- shoulstry pay for the monitors. the question that the court should be answering is, did

congress require or allow agent the monitors?e forced to pay for and that's a very different question. that's the different between law and policymaking. and i think the whole assumption anthwhole understanding of statutory interpretation under this cou'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 -- they're serving as neutral umpi they're not players on the justice jackson: all right. so how does that -- justice barrett: mr. martinez -- justice jackson: -- play out here, what -- what is the -- so, question we're supposed to be answering? martinez: the question you're su to be answering is, did -- does this statute require -- has congress required -- eith ruired the -- the monitors to be paid for by industry, or has it given the agency the authority to make that decision? and i don't think -- i think that is a legal -- both of those versions of that question are legal question a the answer is no. justice barrett: mr. mtiz, can i ask you a question about the line between law and pic and i want to ask you in the context of one of justice kagan's examples, the diar supplement or drug. where is the line between something that would be then

subject to arbitrary capricious review and something that's a question of law? because i'm just wondering whether we could say that the definition of dietary sulent or drug might be something that's a question of statuty inrptation in the context of the statute, but which categy any one thing fell in might be a question of policy for the agency. martinez: right. i -- jubarrett: is that possible? martinez: -- i -- i thk at's right. i think that would be more of a oa, you know, application of law to fact or a factual question. but i think the core question , ke, you know, what is the meaning of dietary supplement, and i forget what the other alrnative was, those are legal questions. justice barrett: but wth the particular cholesterol-reducing drug fell -- martinez: right. justice barrett:- one category or the other, i mean, you know -- martezthat -- that would be a -- justice barrett: -- presably, that depends on how does this function? s 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 of that question and and make sure that the courts have authority over that legal mpent. justice barrett: i wt ask you something about your article iii argument too. you know, justice thomas asked you what theinis. and, you know, courts all of the

timeakjudgments about whether things are reasonable. but i -- i don't understa y toe disagreeing that things like whether something -th an agency could be tasked with deciding what was the most asle, most useful, most reasonable. well, courts could do atoo. so is that degation of judicial power that would offend article iii in youvi, to give those kinds of -- martinez: no, i think -- justice barrett: -- decisions to an agency? ma: -- think the way to think about those kinds of -- statutory provisions would be the statute, given the nature of context, is to confer a range of discretion on the agency. and so i think a court in that case -- if- if the agency is operating within the range of discretion, that's arbitrary and capricious review. if t ancy is sort of operating at the edges, you have to figure out where the guar are. that's the legal question. so, if the -- ifhetatute says, you know, the agency c pick red, blue, or green, then the choice anghose three options is for the agency. but, if you have lal question like, oh, does pink count as red, that's a legal 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 relied on chevron for 14 yes. and judge kethledge has written -- he's been jge for 10 years. he's neveinked chevron step two. you know, judges are used to deciding things, and when th get around to doing 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 have to apply it. and i think these two cases, t -- the two that you're going to ar this morning, sort of show what happens when -- when courts are applying this doctrine because they're -- they're essentially getting to a point where they d't really have to figure out the best answerndhey can just -- you know, insteaofsking what does the statute mean, they can ask a different threshold questi, ich is, is this statute ambiguous enough that -- that we should just, you know,

let the agency do e rk for us? chief justice roberts: thank you. ste thomas? justice alito? justice alito: mr. martinez, would you agree that one of the reasons why chevron was originally so popular was concern th jges were allowing their policy views, consciously or unconsciously, -- to -- to influence their interpretation of the statutes in question? martinez: ye justice alito: why was that fear unfounded? why do you think now that the fearasnfounded? martezwell, i think three things. fit of all, i think the fear has -- it's reasonable to think the fear has diminished over time, regardless of what it was then, in large part due to the very salutary develmes in the way that this court and the lower courts generally now think about statutory construcon in the old days, there was a lot of reliance on legislative history and on sort of more free-form analysis that i think made it easier for policy

considerations to incthe judicial decision-making process. but this court has now made clear that, you know, really, we should be xtocused, we should be focused on faithful agency to congress. so i think that is one difference. i think another difference i courts now have become more preciative of the fact that we're not just talking about, yoknow, judicial -- rules of, like, judicially made common law about how to interpret statutes. we have the apa re justice scalia was a big defender of evn in its original incarnation but, over time, came to realize that the apa ha thaactually bore on this question. and i think, when you're enfoing that text, you come to the same place as our articl iii argument, which is that courts have to exercise independent judgment. justice alito: do you think that the canons of inrptation that we have now and all of the other tools that we have in our statutory interpretation toolkit are like the enigma machine and so we vehese statutes and they're sort of written in code and we run them through the enigma machine a, ra

cadabra, we have the best interpretation? do y rlly think that's how it works? martinez: i -- i think that what this court does with respect t e normal canons of construction is it's edhe -- it's -- it's generated those canons as rough rules of thumb to help guide the intereve process because, if the court believes that nons best approximate the best original meaning of the statute, especially -- and then there's some canons that -- that sort of are nopuly textual canons but that sort of are informed by constitutional -- foundational constitutional vals. i think chevron's very different from that because, with chevron, you're doing setng -- you're not trying to find the best interpreti anymore. you're, in ft,greeing that you have timse the not-best interpretation because you have to defer. and so, unlike all the other canons, chevron is the only one that says to courts, you can st dng 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? justice sotomayor: i counted

over, i think -- not i -- the solicitor general or someone has given us a list of 77 cases in whh e court has used the chevron approach and interpreted what the law was. your overruling chevron puts a question to all those 77 cases. martinez: no, uronor, i think -- justice yor: no, your out is it's stare decisis now? martinez: right. so -- justtomayor: until the agency does something else? and then people can come back because it't stare decisis anymore? martinez: so i think, with respect to the effects of -- of apyi normal rules of construction here instead of chevron, i'two things. first of all, the 70 holdings or whever, the bottom-line holdings in those cases woul get stare decisis, so they would not be undermined. so there's no convulsive change of the law with respect to that. justice sotomayor: i don't understand how tt ppens. once you have a new approach, i'm not re

martinez: i -- justice sotomayor: but let me move on to the second part omy question, which is the cases that come to the court are usually the hard cases. soouay in the last 14 years we've barely referenced chevron. and do you know what theup is? how often have we nstently upheld the agency in those cases? martinez: in -- in the ces since 2016? justice somar: yes. martinez: i -- i don't know the track record on it, your honor. justice sotomayor: i know, it's teresting. martinez: but i will say, i mean, there -- there'some prominent -- justice sotomayor: but -- t putting that aside where we disagree, do you sge that our disagreement was based on ignoring of chevron or udog exactly what you say we should be doing, whh to say this is outside the bounds of reasonless or around the guardrails because you're going outside of plausible -- martinez: i -- justice sotomayor: -- of reasonable interetion? martinez: -- 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 unanimously overturns thlower court decision because it does all the canons at step

one and it -- and itsstially says, like, the statute is clear. but i think what those 9-0 decisionsh is how confusing and unworkable chevron is because the lower courts, you kn, rported to do or didn't really do what they were supposed to do and they came to the opposite conclusion, not necessarily because they thought that -- that your interpretation wasn't the best but rhebecause it thought 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 -- that kind of problem is just a pa n just jging but of decision-making, period, of life. and so it's not clear to me that the fact that there may be some ambiguity about what -- how ch ambiguity, the question that justice thomas asked, it doesn' keway from the basic premise of chevron, which is a reasonable interpretation within thbounds of -- of common

statutory interpretation should be given deferce martinez: right. but i do think the ambiguity trigr troduces a whole kind of threshold question that' very hard to apply neutrally. i mean, you have great judges, judge kethledge, i think, was referenced. heoesn't -- he never found a case that required him to go past step one. just silberman, another great judge, said that in most cases he thought the statute was ambiguous. d 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 efrts show is that you kind of need a secret decoder ring to fireut what the law means under this court's approach. you ha tdo step zero. you have to apply need. then you have to do a robust step one inquiry, taking int account footnote 9 and taking into account, you know, how much ambiguity is needed. in this -- in the d.c. circuit, you have to do step one d half, where you have to figure out whether the agency recognized that the statute was ambiguous. under kisor, there's maybe a step that says you turn

off deference when the agency' operating outside of its area of 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' the court's creation. martinez: right. but it's the court's creation because it's trying to solvth fundamental problem, which is that chevron is doing somethin very weird. it's taking interpretive authority that belongs to cour and it's giving it to agencies. soll of these bells and whistles are efforts to ki o claw it back to address the symptoms, but i think it's time for the court to address the disease, the underlying problem, which is chevron itself. chief juste berts: justice kagan? justice kagan: mr. martinez, i want y tthink of this from congress's perspective. so i was thinking what is the next big piece of legislation on the horizon and who kns,on't have a crystal ball, but i'm gointoay -- i'm going to guess that it's artificial intelligce so let's agine congress enacts an artificial intelligence bill and it h a kinds of delegaon maybe it creates an agcyor the purpose or maybe it uses existing agencies and

haall kinds of delegations to that agency or agencies about how to regulate artifici intelligence so that this nation can capture the -- the -- the opportunities bual meet the chalng 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 h i effect left a p. it has creedn ambiguity. and what congress is thinking is, do we want courts to fill that gap, or do we want an agency to fill that gap? when the normal techniques o legal interpretation have run out, on the matter of artificial intelligence, what does congress want, mr. martinez? martinez: i think congress wants courts tinrpret the best interpretation of their -- justice kagan: congress doesn't know -- kagan: -- apply the best interpretation -- justice kagan: -- what that

swer means. congress knows that there are going to be gaps bau congress can hardly see a week in the future with respect to this subject, let alone a year or decade in the future. and congress kwshat there are going toe ings that it writes that it's just not going to be clear how this will apply or what it will mean with respectoountless factual situations that this country will have to address. the congress want this court to decide those questions, policy-laden questions, of artificial intelligence? martinez: i -- i 't think congress wants the court to do policy. i think congress wants the court to ditordinary function, which is interpret the law and figure -- and apply the best understanding of the law and i think that the implication of your question is that ts some sort of intentional delegation by congress that chevron deference is -- is this implicit delegation. but i -- 't think that's right. i think many people, including very insightful article that -- thatourote 20 years ago, make clear that this is fictional.

this is delegation of a fiction. ice kagan: fictional just means -- is like academic speak foprumed. we are indeed presuming congressional intent. the congressional intent, you know, e the delegation that's not explicit on the face of this statute, but what we're thinking is congress knows ings about different institutions, about what they know, about what they're competent with respect to, and congress knows that this court and lower cour a not competent with respect to dedi all the questions about ai that are going to come upn the future. and what congress wants, we esume, is for people who actually know about ai to decide thosqutions. and also, those same pplwho know about ai are people who, to some degree in some way, are accountabltohe political process. they have constituencies. th have fact-finding abilities. they are obligated to go consult with people. they report to a president, who needs to be elected. in all kinds of ways, both with -- with respe texpertise and with respect to their connections to the publianto other policymaking entities,

those are the people congress was to decide questions about ai. we don't even know what the questions are about ai, let alone the answertohem, we being the court. martinez: juste gan, i think, if we're trying to figure out whathe- what the reasonable thing to infer that congress has presumed, i think the far more reasonae presumption and the one that's most consistent with our constitutional structure is that congress is going to presume that courts are going to do law annot policy, they're going to pick the best interpretation and enforce the bestntpretation as to this statute in the exact same way that they would do it with respe tany other -- any other statute. d this think case actually -- you know, ai is a trickier ample -- 19 example. i mean, this case, you kw, whether it'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 deciding here is more like th, more like the countless policy issues that are into confront this country in the years and decades ahead.

will courts be able to decide these issues as to this ey know nothing about, courts that are completely disnnted from the policy process, from the political pres and, you know, thatusdon't have any expertise and -- and experience in an area, or are people in agencies going to do that? martinez: i -- justice kagan: that's what this case is about. martinez: -- i think the constitutional answer is that congress needs to set the rules with respect tai it can delegate some policymakingisetion to agencies, but once the law is written d e interpretive function has begun, then that job is -- is forheourts. and i think this case actually really is a good example because i think the problem wi cvron is that, like, no e ally -- i mean, i'm curious to see what the solicitor gerawill say about this, but does anyone really thinkhacongress was presuming that the agency would get to decide thqution of who pays for the monitors? juste gan: ok. i have one last question. do you think that congress could cofy -- codify chevron? martinez: i -- i don'thk so because i think that -- that a

statute that codifies chevron would say, essentially, that the interpretive authority has been reallocated fromheourt to the agency. i think at- 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 ambiguity, congress could not decide that it wants people who know something about something to decide the questions that will be left over? martin: -- i think that gives away and -- and would -- would take away from courts and give to agencies core judicial terpretive authority. i don't think congressou do that. in the same way th cgress couldn'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 someone else. justice ga thank you. chief justice roberts: justice gorsuch? justice gorsuch: do we have to dedehat constitutional question? martinez: i think it makes sense to decide the constitutional question. i thinyocould -- justice gorsuch: that wasn't -- do we ha t martinez: i think you could resolve this case undethapa,

and we would ctaly welcome an -- an ieretation of the apa that comes out our way, especial iit's informed by constitutional avoidance principles that i think have a lot of salience here. justice gorsuch: are -- do anything in your argument suggest or depend upon thede that judges should make or decide policy qutis about ai or anything else? martinez: no. we -- aundred percent agree that judges should not do pocy. we just think that they should do law. anth's in -- chevron is about legal questions. justice gorsuch: then erwas some question about past decisions, and as you pointed out, this court'mod away from using legislative history to somdeee in favor of text, and we've made other changes in our inrptive approaches too without congress's interventi, foexample, in sovereign immunity contexts, returning to the clear statement lehat had preexisted this court's jurisprudence for 200 years, and then we wandedff into legislative history and circled back around and corrteour own mistake. we had to deal with the question

of what to do with those precedents, and our answ w to leave them alone from -- from those ancient regimes, as we- martinez: right. juice gorsuch: -- called them. are you asking us to -- to do anything different when it comes 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. d't think that -- that anything would change. u know, stationary source would still mean what it mnt when -- when the courtssd that bottom-line interpretation. and so i don't ink that this would -- a ruling in favor of our side would -- would require or entail overturning any of those d ses. i think what we really care about is prospectively, both thespect to the fishing regulation here but also with respect to other cases that come rward to the courts, making sure that courts are thene doing the interpreting and not agencies. justice gorsuch: thank you. chief justice roberts: justice kanaugh? justice kavanaugh: several questions. first of all, on skidmore, there

warerence to skidmore deference, and i guess i don't think a's the right term, that it's respect or pay attention to, but i think, if we throw the term "deference" into skidmore deference, we're going to walk into another problem -- martinez: me- justice kavanaugh: -- like the one we have with chevron deference. martinez: some might say "deference" is ambiguous. i think that -- [laughter] --hat it's imprecise. i think the beeray -- i think oftentimes, when people sa"derence," what they mean is that if you think the answer is xyoshould defer to someone else's answer, which is different. i n't think -- i think absolutely that that woulde inappropriate. i would not use "skidmore deference" because i thi i-- it runs the risk of -- of giving that implication. i think that, really, we're talking about very sio consideration of the points that the agency makes, but, ultimatelyyohave to be persuaded. and if you' psuaded, then that means that you've concluded thathegency has the best interpretation and then you just apply the normal rules. justice kavanaugh: right. i thought skidmore was about the power to persuade, not the power to control. martinez: exactly. justice kavanaugh: yeah. martinez: we -- i agree with

at justice kavanaugh: ok. on the constitutional issue that justice gorsuch and justice kagan we rsing, you have lots of arguments here, and mr. clement does too, for overruling chevron without reaching the constitutional issue. so guess why -- why would we ach it? if -- if we agreed with you on overruling chevr oother grounds, i don't see the need to address the poetical that justice kagan raised about congress passing a chevron-type regime. rtez: i think three things on that. like iaiearlier, we would certainly welcome overruling chevron, especially under the apa and especially if informed cstitutional avoidance principles. but i think there e ree reasons why you should consider going beyond that to the constitutional holding. there are going to be some cases that, as a technical mte section 706 of the apa wouldn' -- doesn't apply. and so, if it's an apa holding, it may be that in those se there might be lingering uncertainty abouwhher deference should -- should apply to casethat aren't technically under section

706. i think the second thing is that a lot of the alys in figuring out what the duty under the apa to interpret the law, i think a lot of that analysis rely overlaps with the constitutional 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 ths on the constitution as well. and then, finally, i would just say that altug of course, this court often prefers to rule on non-conitional grounds, i think it's also recognized in cases like pearson versus callahan that there's going to be a value and a benito the judicial system to providing clarity about what the constitution means. i ink -- i would respectfully submit this is one of those situio. justice kavanaugh: on the question of how much does chevron matter on the ground, i think you addressed this a little bit by citing judge silberman, but do you want to elabaton that? i mean, are -- there are cases, i assume, that get to chevron epwo pretty regularly. martinez: very regularly, your honor. it happens all the time. d i think, if a case like this

one or two cases like thestw can get to chevron step two, i think that suggests that it's really hard to figure out how chevron step one is suos 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 "whistbler" that required the person to have gone to the sec and -- a, u know, submitted a -- a complaint, and the government and the low court concluded that that was ambiguous and that it might actually apply, it was reasonable to read the statute to not require a report to the sec. so i think there are cases, there are ames like these that come up all the time, and, you know, thankfully, this court doesn't have to intervene every single time, but the reason that thprlem is there is because you've told lower courts h t do their interpretation. anas long as that instruction is out there, there are gointo be a lot of cases that get it wrong, and you're not going to want to be in the business of sort of error correction on each one. justice kavanaugh: on the questi ohow congress can operate tht chevron, i just want to elaborate on -- have you abate on that a little more. my understanding is core

oftentimes will use terms like "the agency can regulate reasonable limits" or "appropriate limits," and that gives, under state farm, a lot of discretion to the agency to make choices to do what justice kagan was talking ou to think about the world as it exists five years from nowr years from now and not have to worry about inback to congress. so the question really is for congress a i drafting choices, tnk, what kinds of broad, capacious terms it uses, as oos to using more defined terms or statutory terms -- usual kinds of statutory language. yes, it can't rewrite that. at least that'hoi thought congress could operate in a world where evn does not exist. martinez: i -- i think that's exactly right, justice kavanaugh. d 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 cacious words are basically -- the best understanding tse words is that congress is, in fact, conf the discretion on the agency. that's very different from chevron, where, instead of having any sort of language like that or express language conferring a delegation, you're -- you're basically applying this fictional implied delegation that -- that is triggered by ambiguity, which is like -- yo, frankly, it's -- it's -- it's not -- it's ctnal, it's made up. and so i think a world in which congress, when it wants to deleo agencies, needs to be express and use language like that or other language, i think is a better wod om the perspective of -- of article i and from article iii. justice kavanaugh: thank you. chief justice bes: justice barrett? justice barrett: mr. mz, i want to return to the question that justice sotomayor raised about stare decisis. so y sd that overruling chevron wouldn't have an effect on the many cases that have gotten to chevron step two and then deferred to the agency. yosa -- am i -- did i understand you correctly? martinez: those tt-line so isn't it inviting a flood of litigation even if for the moment those hdis stay intact?

martinez: so i would say the bottom-line holdings in those cases, iou just quibble slightly, i would -- i would describe the bottoli holding as being that the agency's action was lawful. and so that's the bottom line. i think it's true that people could come and say, look, the interpretive methodsav changed since this bottom-line holding was issued and we think that -- thatyoknow, a different result now should apply. and -- and that's why courts consider requests to overturn precedent. t 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 case that would require -- at- where a court would say this -- this decision not only isn'the best interpretation, but it's like so bad and so praccay 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 bottom-line holdings, you -- you'd of changed the level of generality, right? if youayhe bottom-line holding is that the agency's interpretati ilawful, you think it's not open to people to come back ennd say, well, it's actually not lawful, this is wrong. thcourt got it wrong because the best interpretation isn' the agency's. martinez: i -- i think litigants uld 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 practically important.

nd think most courts, and i

imagine this court, is -- is going fd that that threshold is -- is met, like, almost -- very rary,aybe almost never. and so, as a practical matter, u're not going to be upending, you know, those -- those bottomindecisions -- justice barrett: ok. martinez: -- even if you let people in theory come and challenge them, which they can doow. justice barrett: so let me ask you -- you -- y jt referred to the, you know, serious stare decisis reold, you know, that would have to be overcome. martinez: yeah justice barrett: so let's talk about the stare decisis threshold here. why is it different 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 diffentesult obtain here? martinez: i think my first answer is that the chief justice's opinion suggested it might be dfent and i think the reasons why it's -- it's reason 's -- it's -- it really is different is because there e portant differences between chevron and auer. the most impornthat i think plays on the reliance question is this ideachevron allows and -- and almost like a feature of chevron, not a bug, is that it encourages and allows agci to flip-flop. and so the reliance ideration with respect to chevron is -- is much, you know, aker for -- for -- for the government's side because the is allowed to flip-flop all at once, whereas, with our deferee,he idea is that the agency -- it's going to be very hardhe agency to flip-flop. to correct chevron because it's -- it has that mistake that auer doesn't. there are other differences. you know, chevroroblematic because it lets agencies say what congress intendedr at congress's meaning was, as opposed to just saying whath themselves meant with the enacted.on that they themselves so i think the -- the kind of -- you owthe deference makes more sense when you're deferring to tity that actually created the provision in question as opposed to deferngo their interpretation of -- of a provision that was crey congress.

i think, in addition, you know, chevn not limited to agency expertise. expertise.mited to agency so auer is -- is narrower. and th, nally, i do think there's a difference even with respect apa where i think the apa more clearly puts cotional interpretation and statutory interpretation on equal g, and that might play into the analysis. u know, this court, the plurality in -- in kisorof emphasized that -- that the apa was enacter seminole -- a year after seminole rock, and so maybe that was a basis to think that -- thgress was okay with something that looked like auer deference. but that's not true here. chevron came many years afte the apa. so i think there are a lot of differences that really flesh out, i think, the important point that the chief justice wamang, which was that the analysis there doesn't automatically transfer over to chevron. justice barrett: thanks. chief justice roberts: justice jackson? justice jackson: so i've h you say several times that you agree that judges ou not be doing policy, they should be and i guess i too agree with that, and my conce ithat it's actually not as easy as it seems to distinguish between the two and -- a tt it appears

in a lot of your answers that you so osay, well, you come up with the best answer, it's a legal question. but i'm not so sure it's a legal question as opposed to is it the best under the sort of policy regime. d i think that there's a real separation-of-powers danr re to the extent that you're saying that the judgeardeciding her or not this is something the agency suldo or not, whether this is a legal question not. you know, there's the old saying that when you' aammer, everything looks like a nail. and i'm ncned that judges are going to look at all of the

estions related to a statute and call them legal if we don't ve something like chevron that requires judges to be actually inng about their proper role relative to this issue. so how canoussuage my concern in that regard? martinez: so i think two pnt i think the first point i would make on the diinion between law and policy and how they kind of maybe seem like they blur togeeri think that -- that there are just so many instances in which crt can get a question that comes before it that maybe it involves an agency regime, but the agency hasn't acted yet. and i think the court in that circumstanceusdoes its best. it doesn't have guidance, it doesn't nstructions from the agency. it does its best. ani ink, when it does its best -- justice jackson: but does it have to, mr. martinez? i mean, there are -- there are othemes in which a court is presented with a question and it identieit as a policy question that it cannot answer. so what i'ying is that it's not necessarily true that just because e urt gets an issue, it automatically says, oh, this must be le have to act. martinez: but, if -- if the court got -- just to go back to justice kagan's hypothetal the question of what -- what is

a dietary supplement and the agency hadn't acted, i think the court woulablutely give meaning to that. and i don't think the court would think that what it's doing is making policy. juice jackson: well, let me give you a -- a particular example,llight? in the food and drug and drugs can be approved only if an adequate -- "adequate anwe-controlled investigation" shows that the drug will have its attend -- intended effect. this ter wt is an "adequate and well-controlled inveigion," is it your view that congress wanted the courts to didwhat it means for a study to be adequate or well-controlled? i mean, how would a court go about dermining whether that's something it's supposed to be dog or the agency is supposed to be doing? martinez: i think that the -- 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 inwhat that means is the court would go in and it would do everyinthat -- that we all agree happen -- should happen under step e. i think the only difference is that if, after doing that step one analysis, the court concludes that there's a better view and a less better view, then the court shod st go with the better view. justice jackson: but when -- when does the court decide that this is not cl? martinez: well, i think at the -- justice jackson: i guess that's the parth's dropping out for me in your analysis. you just say, you owwe do a step one analysis and then the court makes the intereve decision about what this means. 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 statutory interpretation, because i that's a core job --

justice jackson: so every statutory interpretation question is one of law that a urt can decide, you're saying? martin: s, and that -- justice jackson: there's never a atory interpretation question that is one of policy that you see congress may have been intending the agency to answer? rtinez: i think, by definition, if we're talking about inrpting a statute, then you're talking about a legal questi ithe same way that if you're talking about interpreting theonitution, then you have a constitutional question. o would say that you would apply deference there. justice ckn: so there's never a world you -- 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 looked at thie of the legal -- legal scholars have looked at

this, is that they say, when there's an ambiguity, there are actually different kinds of ambiguities. so you might he situation in which there's a statutory term and it's bious in the sense that there are several reasonable meanings ofha "stationary source" might mean, for example, several differe ways that you could define that. when you get dn that level of analysis, the question is, who's going toakthe choice as between what those meanings are? and he you saying there might be a best choice, but i guess, if we're talking about a policy question, the a several reasonable meanings, why should the court be the one make that determination? main: i -- justice jackson: and -- and could't we be in a world where congress intended for the agency to auay decide which choice is best? 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 's -- if the question is the meaning of a statutory term, that'an interpretive question that's a legal question and wou b treated as a legal question if you got that exact same questi before the agency had acted. justice jackson: all right. t me ask you one more thing about practical implications. soe's say it is, you know, a legal question, as you have analedadequate and controlled investigations. if i'm an agency d'm trying to be responsible, how is this going to work as araical matter? is the agency going to go to court evme it gets one of these undefined terms in a statute and seekyoknow, a declaratory judgment as to the meaning of "adequate a controlled" -- and "well-controlled investigations" beret goes forward with its policy? martinez: no. justice jackson: all right. so the agency caco up with its own definition and implement then wait to be sued with respect toha and -- and every term undefined in a statute we're going to have litigation abt? think what the agency has d is what everyone else has to do, which is try to figure out wt

the -- what the law means d then act accordingly, 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'll get sorted out by the courts. but the agency isn't, like, paralyzed -- justice jackn:hat do we do about the -- the chaos that we talked about in --n e city of arlington case that comes from perhaps having differt courts, right? we have 11 different, you know, juriicons that have legal authority. so something like the denion of "adequate and well-controlled investigat you say the courts will sort it out. well, first of all, itiltake years perhaps for the courts to sort it out. ats the agency supposed to be doing in the meantime? and differurts from all of these different jurisdictions coulacally have a different view, as justice sotomayor pointed out,at "adequate and well-controlled investigations" are supposed to do, so -- means. so is't it sort of impractical

and chaotic to have a world in which erundefined term in a statute is subject to litigation if you're trying to govern? ez: well, i -- i don't think it's impractical. i thk at to the extent that justice kagan's questions sort indicate that there's actually a relatively small set ces in which chevron's going to make a difference, you'reoing to have that same problem with respect to the cases thatay 20 years ago under a looser approach to chevron wouldn'ha gotten deference. justice jackson: wouldn't you have more of a problem in a world in which we've gotten rid of chevron bause it's going to give incentives to parties to raise lel sues that they wouldn't have raised before? martinez: i ion't think it's a problem to -- to have parties, ith think an agency is overstepping the boundaries and if they'reight that --

justice jackson: no, i understand, but, under a cvr regime, right, if that's the background rule, then you' going to have parties thinking 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 reasonable interpretation, thats wh the court's going to find, so it't any -- martinez: right. you're -- you're to have parties being less likely to challenge agency actat is unlawful under the best interpretation of the statute bethey know that when they go into court, the judge is not goiapply 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 yo counsel. general prelogar. oral argument of gen. prelogar: mr. chief justice, and may it please the court: the evn framework is a bedrock principle of adnistrative law with deep roots in this court's jusprudence. overruling a precedent is never a small matter, buovruling a precedent as foundational as chevron shou ruire a truly extraordinary justification, and petitioners don'have one. they say that article iii requires de novo review of all stutory interpretation questions. but a's flatly inconsistent with precedent going back to the marshall court and wh e

traditional limits on mandamus jurisdti, which governed most judicial review of executive action in the early republic. they' sd that chevron violates due process. but the application of deferestandards of review doesn't constitute impermissle bias. and they contend that the apa es de novo review. but that theory is inconsistent the the statute's history and way it's been understood ever since its enactment,ncding in the more than 70 cases in which this court has relied chevron to sustain an agency's interpretation. on top oalthat, reliance interests in this context are at their apex. congress, agencies, states, regulated parties, and the american public have all relied chevron and the regulations upheld under it to make important decisions that could be upended by overruling that framework. thousands of judicial decisions sustaining an agency's rulemaking or adjudication as reasonable would be open to challenge, and that profound disruption is especially unwarranted because congress could modify or overrule the chevron framework at any time. congress has many times consider pposals to do so, but it's never taken that step.

instead, congress has legislated fodedes with chevron as the background rule informing the degreef scretion that congress has chosen to confer on federal agenci. just five years ago in kisor, this court declined similar calls to overrule the auer deference ctrine based on many of the same flawed arguments that petions are making here. the court observed that it would behe rare overruling that would introduce so much instability into so many areas of the law, all in one blow. overruling cvr would be an even greater and unwarranted shock to the legal system. i welcome the court's questions. justice thomas: genel,ection 706 of the apa was not mentioned in cvr. how would you reconcile the requirements of -- on this -- on federal cour uer 706 with your view of chevron?

general prelogar: section 706 says that courts should decide all relevant questions of law and interpret statutes, but none of that isncsistent with the chevron framework because 706 doesn't prcre a universal standard of review to govern those kinds of statuto interpretation questions. and the courts are interpreting atutes when they walk through the chevron framework. first, there's all the work that the court est step one of chevron. ats using the tools of interpretation to identify whether congress has spoken to the issue in the case and, if so, chevron sa tt's the end of the matter. so, in tt nse, in a step one case, the court has, of course, interpreted the statute. but, in a situation where, at the end of that intereve process, the court is left with no cclion that it's actually able to ascertain that congress haspen, then, in that circumstance, i think the right

interpretation of the statute is thatoness left a gap or maybe created an ambiguity and simultaneously vested the agency wi the important responsibility, pursuant to an express delegation, to administer that statute with the regulations that havthforce of law. and th's within -- tells the court what the relevant question of law that's left over to reis. it's whether the agency acted within the bounds that congress itself prescribed. so i don't think there's any fundamental incompatibility with ction 706 and what chevron dictates about how to think aboutoness's delegations. justice sotomayor: can i say, counsel -- general, i know plenty of statutes where congre us the word "de novo." it didn't here, correct, in06 general prelogar: that's correct. justice somar: i thought it, and i do think it, would be revolutionary toayhat congress can't limit judicial review. aedpa is the quintessential question where we not only give deference to state cou decisions, we say even if it got it wrong, if it didn't get unreasonably wrong, we are superseding the court'abity to declare a violation of the

constitution and give reli. so i -- i -- i think it would be radical to say that congress couldn't implement chevron. ft, there is legislation to overrule chevron, requiring de novo review, that hasn't passed. there are statutes that basically d't -- say apply de novo review, correct? general prelogar: yes. justice sotomayor: and there are statutes that require differential review explicitly to legal questions, correct? general prelogar: yes. justice sotomayor: besides chevron? general prelogar: yes. justice sotomayor: all right. soe have -- we're now at 706. and my -- your adversary, yo opposing counsel, said that he didn't see that much disruption from overruling chevrot nobody would really bring up 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 not going to be involved in the endless litigation that i think would result if this court were to overrule chevron. i understand his point to be that all of the holdings in those cases wille cure because stare decisis will apply in those contexts. but the important thing to realize is that in those cases, as justice barrett's questions emphasized, the court has decided that what the agency did was reasonable. the statute s sentially been interpreted to vest the agency with discretionucthat the agency's regulation is being held lawful or val othe basis of reasonableness, and 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 relevant question, not whether the agc's interpretation is reasonable or whether the regulation can be upheld on that basis, but how the statute shouldterpted without granting any deference to the agency'rpretation. chief justice roberts: counsel, i'll ask you the same question i asked your friend.

you began by saying chevron is foundational. we get a lot of statutory interpretations from agencies, and i don't owhether it was 14 or 16 years, we haven't relied on chevron over that time. i -- i mean, have we overruled it in practice even if we've let the -- h tleave the lower courts to continue to grapple with it? general prelogar: no, i don't think so, mr. chief justice. it's been eightea since this court relied on chevron at step two, but there's ce that my friends have been able to point to where the courtasaid that a statute was ambiguous or left a gap and chrowould otherwise apply, but the court is not going to defer inha circumstance. i think that that -- chief justice roberts: no. but, i mean, that's simply function of the fact, when -- en we go through the work of trying to interpret what a statute means, when we get to the end, that seems to be the right interpretation, and -- general prelogari ree. those are epne holdings. so i -- so i think that they are consistent with the chevron framework.

anthe fact that this court hasn't had a wo case in recent years in no way indicates that in those where congress is, in fact, leaving ambiguities or gaps, chevron no longer sets the right ground rule for understanding the scope of the delegation. justice kavanaugh: can i ask you about what i see is an internal inconsistency in chevron itself? it relates to footnote 9, which is -- instructs that a court should use all the traditional olof statutory interpretation before getting to step two. my concern about that or my confusion about that is, if you use all the traditional tools of statutory interpretation, you'll get an answer. and kw that because, in cases where we don't have a agency involved and we use those same traditional tools, we get an answer. so how do we deal with ftne 9, which seems to suggest that you'll never get to step two if you follow footnote byhat it says? general prelogar: so what the court said in footnote 9 is that thcourt should use all of the traditional tools 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 press direction. justice kavanaugh: do yothk that's different from ascertaining what the statute means? general prelogar: i think that there can be a relevant fference and it touches on exactly what you were asking about t context where a court has to do it without an agen. 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 be be administered, even in the circumstance where there might be an ambiguity or a gap to ll but what chevron recognizes is that there is a third option available. it's not just congress spoke to the issuanit necessarily authorized what the agency did or congress spoke to the issue and itrobited what the agency did. there is a category of cases a statutes out there where, ally, using all of the tools, the best interpretation of the statute is that congress didn't resolve it. it left thatapr ambiguity and coupled it with this express authorization to the agency to carry attatute into effect. th icongress and the agencies working together hand in hand to put into effect this -- justice kavanaugh: how would you

define ambiguity or w uld you, if you were a judge, say, yes, this is ambiguous or no, that's not ambiguous? general prelogar: so i would drawn at the court said recently in kisor where it said a statute is ambiguous when the court has exhausted the toolof interpretation and hasn't found a single right answer. and i recognize, justice kavanaugh, a y have expressed these concerns that there are some limits of language he d it's not subject to precise mathematical quantification, but that's because thk it's a standard that inherently requires the application of judgment. and at the end of the da wt the court should be looking for and asking itself is, did congress resolve this one? do i he nfidence that actually i've got it, i -- i understand what congress meant to say in this statute and it meant to proscribe a -- a iform approach to stationary source, that it has to be planwi or it has to be a particular piece of equipment? but, in a circuman like

chevron itself with stationary source or some of the examples 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, acal, the way -- the right way to understand this statute is that it's conferring discretion on the agency to take rae of permissible approaches. justice kavanaugh: do you -- do you think it's possible for a judge to say, the best rdi of the statute is x, but i think it is ambiguous and, therefore, i'm going to defer to the agency, which has offered y? generaprogar: no, i think that that would probably -- justice kavanah:hat can't happen? i think that happensllhe time. general prelogar: well, i think that there are two different ways in which courts use the term "best interpretation of the statute." so, wt you're asking me is, is there a world in which a judge ulgo through the rigorous step one inquiry, apply all ofhe tools, and say, i think there's a best interpretation insofar as i think congress spoke to the issue, but the agency's interpretation is it could be peisble, i recognize there's some doubt here, the answer is . chevron does not require a court to ignore what is ascertained doing the step one inquiry. at that point, that is the -- the judge's conclusion that congress actually spoke to the issue and chevron is totally clear about this, give effect to it.

but, if wh y're asking me is, is there a world in which the court cod t to the end ofhetep one inquiry, decide that congress hasn't spokeno the issue, and then say, if, in fa, the courts had been given the role of filling the gap, i would have done it differently, i would have exercis wtever discretion that congress left open in this statute in a different way, even looking to things likthoverall objectives in the statutory program as a whole, then yes, of courseinhat circumstance, it's -- it's implementing congress's directives -- ste gorsuch: i mean, general -- general prelogar: -- f court to 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 interpretation. i provide it aa urt. the other is: well, yeah, but i'm gog defer anyway given whatever considerations you want to throwntthe ambiguity bucket. and that's exactly the problem that your friends on the other side suggest have perstein the lower courts for 40 years and why some judges claim ner

he found an ambiguity and other equally excellent circt judges have said they find them all the ti. and it's also why, i don't know, maybe a dozen or morciuit judges have written asking us to overrule chevron. and -- and -- and -- and -- and it also may be why one of yr lleagues last year said i don't know what ambiguity meanathis lectern. and should that be a clue that something needs toe xed here, that even the federal government at the podium ca't answer the question what triggers ambiguity? y've given us two different alternatives today, and so many wecourt judges who just want to follow whatever we tell them too ithfully can't figure it out. general prelogar: so there's a t cked in there, justice gorsuch, and i want to respond to each of your concerns. first, i would draw fromheon and kisor in defining what is an ambiguity.

it is when a court has applied the tools of construction and can't asceaithat congress had an intent on the matter. so i think that that is the core questionor court at step one of chevron, and if that's the circumstance, that would only ev me 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 ambiguy at -- justice gorsuch: well, you gave us a second definition just a moment ago, and -- general prelogar: i was trying to -- to expinow i thought that sometimes -- justice gorsuch: some -- yeah. general prelogar: -- in the case la "best interpretation" -- justice gorsuch: yes. general prelogar: -- is used in two different -- justice gorsuch: right. general prelogar: i don't think that's a different understanding of chevron. justice gorsuch: well -- geraprelogar: i think that's really a difference -- justice gorsuch: -- your -- your friend -- general prelogar: -- between step one and step two. justice gorsuch: -- your friend a ye a thought so and -- and -- and lower court judges think . general prelogar: so let me respond to the concern - justice gorsuch: so you agree -- general prelogar: -- about lower court judges. if you think that they are too readily fiinambiguity, i think the court could do in this case ect what it did in kisor --

justice gorsuc -we done that, like -- like, 15 times over the last eight or 10 years, say, really, really, reall g look at all the statutory tools, and yet here we have a case,wo cases, one in which one court 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 solve it at step one. soeven in a case involving herring fishermen and the question whether they have to pay for governmentffials to be onboard their boats, which may call for some expertise, but it doesn't have much to do with fishing or fisheries, it has to do with payments of -- of -- of government costs, we we -- lower court judges even here in this rather prosc se can't figure out what chevron means. general prelogar: well, do think that issuing a reminder to courts about the thoroughness -- justice gorsuch: another one? general prelogar: -- that's necessary atteone could make a difference in this context. and i can just share anecdotally on behalf of the government that we have canvassed the litigating components and looked at the lowecot case law. and after kisor, lower courts granted auer deference fares frequently, so i think it can matter and that lower courts can get that kind of messagef you're worried about it.

but, justice gorsuchthother point to add here is that if you arcoerned that lower courts have different reactions in trying timement chevron at step one, i think it's important to think about the alternative as wel it's not as though, if this court overruled chevron, that's going to g r of statutory gaps or ambiguities. justice gorsuch: no, it tas general prelogar: they will persist -- justicuch: -- us back to skidmore, which justice jackson, the most ardent of new dealers, wrote and that persisted in this court for 40 years, more or less, after the apa. d the world seemed to continue on its axis just fine. general prelogar: but it'not going to create greater predictabili ostability or consistency across judges. justicgorsuch: that's -- that's -- general prelogar: if anyin i think that -- justice gorsuch: -- an ining thing to suggest, that chevron predicts stability, wh t whole point -- i didn't see you mention brand x much in yo brief. but i -- i'm sorry to go back there, but -- my gd iend, but brand x is a recipe for instability, isn'because each new administration can come in and undo the wo oa prior

one. the're all reasonable. i mean, my goodness, the american people elect them. ofe, they're reasonable people. (laughter.) justice gorsuch: and -- and -- stice sotomayor: that may be the first -- auter.) would have thought tt evron, at least as this court's understood it, is a recipe for anti-reliance. general prelogar: so i disagree with that characterization about brand x, and i think my friends have created, kicked up some dust about exactly what brand x does -- justice gorsuch: so you do -- general prelog: and doesn't do. justice gorsuch: -- you do

endorse brand x, the government does? general prelogar: yes. i think it is a logical follow-on of chevron, and he is why. as brand x itself recognizes, if the court hafod at step one that congress spoke to the issue, there's rm under brand x for the agency to reverse the court or someh change the underlying meaning of the statute. instead, the statute has been interpreted at step one and what coress says goes. it's only in e tegory of step two cases where brand x comes in py, and in that circumstance, it's because the court inherior case has understood the statute to leave a gap or an amguy for the agency to fill, considering a range of rulory approaches. so, in that circumstance too, the meaning ofhetatute 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 consttly with the -- justice gorsuch: or not. neral prelogar: -- with the discretion. juicgorsuch: or not if it -- if it issues an interpretive rule without notice and comment or issues an audation. it may or may not be that burdensome, right? so brand x also says that an agency can overturn a prior judicial interpretation. and i saw that as a circuit jue th respect to an alien

who was allowed into the country unr the tenth circuit's understanding of the law. and the vement come back and says, no, you have to overturn your precede, nth circuit, and he's not allowed in the country. d we had to overrule our judicial precedent. doouhink that's an appropriate understanding of the w too, that judicial precedents, maybe even precedents of this court, can be overturned by agencies? general prelogar: it depends on what the judicial precedent held. if it held at stepnehat that statute was clear, then of course not. but brand x don't require that result. if the pri pcedent held that congress didn't resolve the issue and had delegated to the agency the responsibility and role in administerinitnd filling the gap, including with the possibility of changing gutory approaches based on things like change -- justice kavanaugh: but the reality -- just to pick up on that, the reality is --- 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 to the system every four or eight yes en a new administration comes i whether it's communications law or securities law or competition law eironmental

law, and goes from pillar to post, like pfeor pierce wrote, and he had been a fan of chevro now he's not because he says it's a source of extreme instability in the law. that's his -- his phrase. and it just seems like you just pay attention to what happens when a new adminisatn comes in at epa, ase at ftc, you name it. it's just massive change. that is at war with reliance. that is not stability. and so i think to hold up stability and reliance is a little tough given just watching how it operates every four years. al prelogar: well, let me give you a couple of different reactions to that. i ink that that is a small sliver of cases or circumstances. and in the mine run case involving agency regulations, agencies themselves build on those relaons as a foundation. there's no evidence that agenciesut there flip-flopping left and right or doing so on a whim. and it brings me to the important point that to do --

justice kavanaugh: i don't think they're -- i'm sorry to interrupt -- and 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 adminiraon and they're using what chevron gives them and what they can't get through congress to do it themselves, self-help, and to do it themselves unilaterally, which completely inconsistent with bicameralism and presentment to get your policy objectives enacted into law. general prelogar: but, justice kavanaugh, the premise i tnk that's embedded in that question is the idea that congresha spoken to that issue. anin a circumstance where congress didn't resolve it and, in fact, wanted the agency to have flexibility and a rgef options, there's nothing inherently problematic or incompatible with our system of government to regne that agencies can carry out those directives. and just lk "statiarsource." you know, that was a circumstance where the court said, applying all of e ols, congress didn't have a view on it. it didn't want to foreclose plant-wide definition. it didn't want to reose an equipment-specific definition.

and i think it was entirely permissible for e pert agency to come in, take stock of the entire situation, and, yes, take account of the policy goals of ainming administration to better account for the interests ofhe regulated parties and give them flexibility. that's just part of congress's design. justice jackson: after all, you know, taking icount the policy goals of the new administration reflects a deic structure where we ve the new administration being elected by the people on the basis of certain policy dermations. i guess my concern is i suppose judicial policymaking is very stable but pcily because we are not accountable to the people and have lifetime apinents. so, if we have gaps and biguities in statutes and the judiciary is coming in to fill them, i suppose we would have a -- something of a separation of powers or policy -- exc -- separation of powers concern related to

judicial policymaking. am i wrong to be worried about that? general prelogar: no. i think that that concern is valid, and i think it's valid along two separate dimsis, and one is to recognize that in these scenarios where we're at chevron st t, by definition, it's because the statute itself doe't supply an answer and the court can't ascertain th congress actually meant to resolve it. and in that circumstan, 's entirely sensible for congress to give the issue to an agency when it is charged with administering the statute and, of necessi, going to have to fill the gap along the way. and core could quite legitimately want the agency 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 aea characterized that as a question of law because the court was involved at step one in making the determination, and so it seems a little odd -- i think i took this away from his presentation -- to suddenly say, when we' ia ep two gap-filling world, now we're going to call it a policy question as opposed to a legal one?

general prelogar: so i think you can ilcharacterize it as a legal questionhi recognizing that in a circumstance, to borrow justice kagan's words, whe e law has run out and congress hasn't actually ske tohe issue, the court, if it resolves that issue, is i going to have to draw on a set of considerations to inform its judgment. and i wouldn't call it policymaking, but dohink it means that the court can't suggest that t awer it is giving is absolutely dictated on that precise issue by congre because, by definition, we're in a wod ere congress didn't speak to it. so the court will have to take account of a narrowerae of circumstances, things like the overarching statutory objectives, to try to lln the gap. but the point is that when congress has left that gap and charged the expert agency with the administration role, congress could have every expectatn,nd chevron says congress has the expectation, that the agency will fill th gap and that the courts will reonableness that always applyf justice barrett: general prelogar, most scholars of statutory interpretation consideron to be an

interpretive canon, much like clatement 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 interpretationhawe apply? general prelogar: i do think it is different. i don't nceive of it as a canon. instead, i think that it is fundamentally rooted in -- in kind of setting the ground rules r w all three branches of the government are operating together and what i understand the court to have been doing in chevron is recognizing that there are legitimate reaso w congress cannot answer every question itself andhyt will want to go hand-in-hand with an agency by charging that agency with administering the statute. anin that circumstance, it's the role of the court to give effect to that. so i think it's not just kind of an interpretive canon, but, rather, it really is grounded in the separation of powers. justice t: so is it dependent on a judgment about what congress would want, one that would have to be empirically tested? general prelogar: so i don't think that it's getting to ngress's subjective intent, although, certainly, i thi t primary rationale that chevron gave was its apprais tt this

is, as an overarching matter, what congreswod have intended when it comes to gaps. and i d't mean to suggest that iseans that congress thinks about each and every gap it' creating in the moment. sometimes i think it ds d it's clear when it sa s reasonable rates. it knows that it's not itself prescribing what those rates will be in concrete circumstances. it's leaving gaps and the agency s to fill it. but i think, even in the circumstan wre congress doesn't know it's creating it at the timesoone's going to have to come in after the fact and fill it in, and 's either going to be the agency or it'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: a h do we know -- this is -- goes back to that question wt is the trigger of ambiguity that justice gorsuch was asking so thi aut a concrete example like pulsifer, which the united states is on the other depending 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.) justice barrett: so let's --

put aside thqution of whether, you know, the department of justice and the executivget to deference in interpreting criminal statutes. just erase that issue from the picture. is tt e kind of question -- you know, judges below, ry smart, very reasonable judges reached different conclusions about what that word in the statute meant. is that the kind of question then, you know, thinking about brand x sangwell, it doesn't have to be the best, it just has to be, you know, a plausible reasab one, is that the kind of statutory question that would trigger ambiguity and step two deference? general prelogar: so i think it's hard to spk generalities about this. and i am strglg because, of course, the court has recognized that the department of justice do n get deference in the criminal context with respect to that particular issue. juicbarrett: and it's that statutory structure in a communication would say to just try to address the overarching estion is that, you know, i think that it's going to be ki

of a specific exercise in every seand i can't say here is the formula i can give you to kn wn the statutory interpretation exercise at step one runs out and the court should feel like, i don't have an answer, congress didn't supply one and when not. i think it's going to vary based on the statuto seme. but, in each case, the court should conduct that inquiry, make it a thorough inquiry and take accntf all of the reva aspects of interpretation that can bear on meaning and showhacongress, in fact, did resolve it. at is the role of the court, and it's the role othcourt likewise to enforce congress's directions. justice barrett: so that kind of question, putting aside the government's position in pulsifer, so maybe -- that's an unfair question to ask yo b that kind of question you think would be the kind estion that could -- you know, does the word "and" mean. you know, a quesonf statutory structure, the placement of a comma, you know, that kind of a thing, that is the kind of question that, depending on the circce, could trigger step two deference? genel prelogar: i think it conceivably could. now i want to hold open and acknowledge that theou has said there are certain types of

statutory questions that don't fit within the cheonramework because there are kind of statute-specific reasons to think congress wasn't giving this question to the agency. i think the major questions doctrine is a species of tha i'd point to the adams fruit case as well where it was a judicial review provision and the court said this was't something for the agency to do. but i think, in the mine run case, yes, and -- and to the extento're saying, well, it feels odd foito depend on a comma or to turn on the meaning the word "and," still i think the inferenc holds because, in that context, congress, if it, in fact, has left the ambiguity othgap, recognizes that the agency is going to have to come upitan answer. justice barrett: except a lot of times congress doesn't intentionally leave the ambiguity or the gap, right? it's just limits of language, limits of foresight. genel elogar: yes. so i think a court ultimately, if it's able to certain that, although it's not perfectly clear in the statute, you can figure outhacongress intend, ve effect to that, that's step one. lst congress knows that if it's going to unintentionally crte ambiguities or gaps, chevron is the stable background

rule. it's been the rulfo40 years. this court acknowledged in city of arlington thacoress, in fact, legislates against the background of that rule, and so it knows that with anything it' doing that's unintentional, that will trigger if the predicates are satisfied. justice kavanaugh: i'm sorry. can i ask you about the phrase "law runs out." one way to think about that wlde if you had the metatutory interpretation -- chf stice roberts: go ahead and finish, sure. justice kavanaugh: same statutory interpretation issue aon-agency case, could the court decide it? anif the answer is yes, the court could decide it, theth law hasn't run ou s therefore, you could ask yourself that question in an agency case. if this were a non-agency case, would ce to an answer on this case? and if so, you don't go to step tw what's wrong with that? and if that's not correct, because i don't think you're going to agree with that -- how would you definehethe law runs out short of that, which i think is a problem, as you said, hardo eak in generalities about this.

that's the problem. general prelogar: yes. so you predicted my answer. i don't agree that it's lyn a circumstance where the statute ulbe incapable of the court suing a decision at the end of day. of course, if a case comes to the court and it has to resolve it, it's going to have to do its vel best. but what iea by the law running out is that if the court has waedhrough all of the tools of construction and inrpretation and doesn't think that congress actually directly spoke to this issue,oness itself didn't resolve it, then the kinds of tools the court is going to have toseill be ones that unin things like the overarching statutory objectiv tt congress revealed as part of its plan. and i think that in a -- a chevron circumstance, the insight of the court's opinion there was that the courtoe't have to go on and itself supply the answer when, actll the best way to understand congress having not resolved it itself was toakthe primary decisionmaker or the person with the primary role in the first instance to be the agency.

chief justice roberts: t you, counsel. justice thomas, anything further? justice thomas: just a -- a couple questions. you said than exchange with justice sotomayor and me thatoness could require some deference when it came to questions of statutory interpretation. and in 706, the reviewing court shall decidellelevant 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 woule distinct issues in light of the different history that would be in play in that kinypothetical. there has not been a longanng history of courts deferring to agencies when it comes to interpreting the nstution, so i think there could be a unique article ii interest at stake there.

precisely the opposite direction when it comes to statutory interpretation, where agencies themselves are charged with administering it because, as we've to explain, chevron was not an innovation, it was not something new. these principles of deference go all the way back to the very founding years of the republic. they're reflected in things like mandamus practice, where virtually all executive for the first hundred years of our nation's history was reviewed deferentially, and then it was continuedn long line of cases fm is court recognizing specifically that in a circumstance when you have the executive administering the atute, congress could delegate and could expect for those delegations to be respected. justice thomas: k mandamus is a little bit different and the other extraordinary writs in that you had quite a high hurdle before they became applicable, t normally say that this court reviews questions of law de novo, and that includes statutory and constitutional.

how would you distinguish that normal practice from what you're saying? general prelogarwe, i think it is more nuanced than that. i certainly take the point that the court reviews many legal questiondeovo, but that's not invariably the case. the n be issues that arise under distinct statutes thatet forth more deferential standards of review. aedpa is a good examplofhat. there can be circumstances like mandamus where the nature of the action itself dictates a more deferential standard of review. and i justo't think it would be accurate to say as a uniform, acro-t-board matter, de novo is the standard that always and vaably applies. that's inconsistent with cases from this court that were cited in chevron, going back to the early 1800s, things like edwards' lessee versus darby, where the court itself was recognizing that in a variety of contexts where you have ambiguity in particular and you ha aexpert agency charged with administering the statute deference can be warranted. justice thomas: thank 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 court has exhausted the tools of interpretation and hasn't been able to arrive at confidence that there is a right answer that congress spoktohe issue. justice alito: well, ajuice kavanaugh's recent question presented, in cases that don't involve an anc we never say we havexusted all of our tools of interpretation and we just can't figure out wt is means. so that would seem to suggest you never get totetwo. general 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 haagency, the court can't give effect to any delegation and, instead, the backup option would otherwise be available is the court has to do itbui don't think that that undermines the very real -t-ground

possibility that congress is legislating and meaning to give the agency the gap. justice alito: well, i come ck to the question of your definition of ambiguity. and what i hrdou say the first time was it's when we've used up all our tools and we 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 best way to try to clarify what the definitioi'm trying to give is to use an example of something like a statutory term like "reasonable." justice alito: -- really would just like a definition so that all the courts that have to plthe regime that you're advocating will be able to apply it in the many different cases that come beforehe general prelogar: the court gave this definition in kisoriv years ago with respect to auer deference, and i think it's the right definition to e here as well. justice alito: what is it? general prelarwhen a court has used or exhausted the tools of interpretation and doesn't believe that it reveals a rit answer. in that circumstance, chevron said the right way to think about that statute -- e real right answer there is a delegation.

justice alito: but again, i think you y're running into the problem that we never do that in cas at don't involve an agency. general prelogar: because those cases -- justice alito: so i think you've got to provide a different definition. w,hat i heard you say at a couple of times during your argument was it'wh we can't figure out what congress intended. is that what you mean to say? genel elogar: that is the inquiry that chevron prescribes that you should be -- and this is drawn from footnote 9, which is another formulation of this, use the tools of interpretation to see if they reve cgress's -- justice alito: what do you mean by what congre iended? do you mean to say that you get totetwo whenever we don't think that a majority of the use and a majority of the senate had an intent on e specific question that is before the court? then you'd always get to step two. general prelogar: no. so i don't think it's about individual leglars' intent. i think the court in chevron used the word "congress," but you' really looking at the statute and what the statute reveals about whether it's resolving an issue or not.

e alito: thank you. chief justice roberts: justice sotomayor? justice sotomayor: there hasn't been much discussion owhy this is entitled to statutory -- to stare decisis consideration. there's been an argument by petitioners that it's not really a holding of a case; it's a method only, ande ve said in the past that a method that lower courts have to use is subject to change we can make without conserg stare decisis. so could you address that argument? general prelogar: yes. and i thk at petitioners have pointed to two relevant types of cases that they suggest just mean stare decisis doe't apply here or it applies in particularly weakened form. first, they say the urhas sometimes changed the interpretive tlst consults. things like legislative history might have been in greater far, at least with some

juic, before and maybe have fallen out of favor later. but i don't think th tse provide a parallel at all, because the court has never distilled those kinds of interpretive too io a governing framework. it's ner,or example, dictated to lower courts you should be applying legislative history in all cases. anso i don't think that it has the same kind of roots ith type of binding governing framework that chevr h, which real h functioned in quite a different way with reecto how you understand and imemt congress's directives. the second case they've pointed tos pearson, which held, in the context of the saucier re, that that was entitled to weakened stare decis. but there the court said that is entirely a rule iernal judicial management about how courts decide su and sequence their decision-making process. it doesn't have outward-looking consequences, and it would be foolistoequire congress to step in to fix it. the, too, i think that the considerations run in precisely

the opposite direction here bechevron is not just a binding framework about how courts conduct their business; it also gives noti tthe legislature about how its statutes will be construed. and if the court got this wrong when chevron was decided and was wrong about legislativinnt, congress is there at the ready and is perhaps the best pa o institution in government to be able to correct a actually say, going forward, what it wae ground rules to be. and the final thing i would say, justicsomayor, is that these were precisely the kinds of conserions that the court took into account in kisorn applying the strongest form of stare decisis to auer deference. my friends have laelignored kisor's analysis on this. this was the majority of the court where the court said congress can step in, these deferecisions are balls that are lobbed ingress's court, and there are big reliance interests at stake here because there zens in that case, here thousands, of decisions that could stand to be displaced and eate chaos if chevron is overruled. so i think that, from a decisis perspective, that precedent counts as precedent too. justicsomayor: there -- and you answered the reliance estion, because one of the

arguments on the other side is no one has -- well, the first argume, at the court hasn't applied chevron in how many and so nobody should have legitimate reliance interests. and the sergument against reliance is that no one should have reliance on a wrong interpretation, basically. general prelogar: yes. and i think that thosein of arguments are inconsistent with kisor and also inconsistent with what we know about what happens in the real world. there are agency regulations out e that have been on the books for decades. people have made investment decisions on the basis of that. people have decided what contracts to enter into on the basis of that. states in opative federalism programs have designed and ed the resources into their share of that program. d all of that could be thrown into disarray if now it can be subject to renewedenge on the basis that that regulation was upheld answering the wrong question, not looking at whether itictsith some purportedly better

interpretation of the statute. chief justice roberts: jus kagan? justice kagan: there's been a fair bit of talk, general, about how beusyou don't have a formula for saying when there' gaor ambiguity so that you go to step two or because judges may have different tendencies, you know, which might be temperamentauch as anythi ee, to find ambiguity, because of that there's going to be some variability. and 's hard to argue that it will be some variability, but could you talk about the variability in the alternati scenario? general prelogar: thiis really important point to focus on because, as i wasryg to say earlier, in a world without chevron, it's not ashoh congress is always going to speak clearlanit won't leave gaps or ambiguities in statutes, nuine ambiguities where you apply the tools and at the end you are left with no certainty ouwhat congress was trying to do. and in that circumstance in a world without chevron, what we'll see is wh jtice alito was suggesti, e courts will

have to go on and try to anerhe question. but there are 800 district court judges around the nation, and i think it's fair to say they will likely have different takes about what to do in that rcumstance and what to give greater weight to and how ultimately fill the gap in administering the statute. and that's going to create problems for a couple of different reason justice kagan: and those differens,o go back to justice ali's earlier question, i mean, those differences were part of the impetus for chevron because osdifferences were looking awfully idealogical in nate, awfully partisan in nare and chevron, all the empirical evidence suggests, dampens that kind of idealogical division between courts. general prelogar: that's right. there is gd pirical evidence to support that judges have an easier time reaching common ground under the chevron framework and at least identifying when they can ag that congress did not itself resolve an issue, than ty when they have to ultimately go on and try to figure out what they are going to y the bottom line of the best way to put the statute into operation. so i think that that is rooted in

chevron, and it just reflects as well this uniformityrn, one of the basic justifications for chevron and one of the reasons why this inference o legislative intent is sound, because agencies can provide that kind of uniform rule for the nation, suecto the ground rules of course of judicialevw under chevron. but i think that the alternative world where there's no chevron is that there will open up wide disputes among the lower courts, maybe on these mine-run statutory interpretation questions in comrograms, things like medicare and medicaid, and i think that it could mean tharelated parties are subject to different rules in different par othe country. you lose the uniformity value, and it diminishes the force of the political accountali value. i think congress would have very good reason to thinth agencies should do this and that courts should respect it within the bounds of reasonableness. >> justice gorsuch? >> you aee that courts, under the apa, have to review questions ofawnvolving the

constitution de novo? general prelogar: yes. i think there might be certain circumstances with respect to certain provisions where more deferential anrds apply, but i certainly agree they don't defer togeies. justice gorsuch: ok. and you agree that, elsewhere in the law, when posed with questions of law, courts review those de novo, generally spking? 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, gh general prelogar: yes. i think those are two good examples of situations where there are specifications of a standard riew that's more deferential. justice gorsuch: i wonder whether those have more to do with remedies, right? in a mandamus case, a court should sayoran say, what the law is. it just can't provide relief unless its conviction about the statute meaning is sufficiently clear. same thing in aedpa, that we reque heightened standard before relief is granted. sa thing in sovereign immunity contexts. we mayhi the statute says the government's lilebut we impose a higher standard before we grant access to the fisc.

general prelog: i acknowledge that i think that many of those doctrines do turn on limitio built into the writ or limitations on remedies. d't think it would be right, justice gorsuch, to say thatn the mandamus cases, what courts were traditionally doing is saying let me put aside what the executive officer did and just interpret the statute de novo and say what i think the rig answer is. and the right answer is the executive was violating the law, but not clearly outside the scope of the executive's authority. justice gorsuch: b hcould do so just as we do in the qualified immutyontext. there are two steps to that analysis. you can just go to the second one and resolve it and say, ah, it's not clear,o 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 gorsuch: -- i'm not asking about aic iii. i'm just asking about the apa and what it means. general prelaryeah. so sorry if i misunderstood. i dohi, though, that what the history shows at the very least is there has been no ndental rule in this country

leading up to the apa's enactment that you have to review all questions de novo. and that's where the history of the apa really matters. this court has several times recognized thepaas a restatement of existing judicial practice when it came to review of agency statutory interetions. and as we've explained, the e really deep roots here, a long line of precedent and history showing that courts will sometimes defer. justs gorsuch -- ste gorsuc y do point out cases like edwards' lese d others where this court gave respect to the federal governme's contemporaneous and uniform interpretation of the statut and that's exactly what skidmore does. it givesesct to contemporaneous and uniform interpretatis. but chevron, it doesn't matter whether it's contemporaneous and uniform. it 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:el i'm -- reading from them, but okay. general prelogar: there are dozens of them. so i acknowledge that they use varying formulations, and maybe you can find somth look a little more like skidmore. i think i have a lot that ok whole lot like chevron -- justice gorsuch: let's say you don't. then what? general prelogar: we, i think i -- i just have to dispute the look at gray vers well, look at nlrb versus -- these are cases in the 1940s that were leading cases in adminirave law. justice gorsuch: oh, i -- i put aside what happened in the '40s because it went back and forth and wound up in 10 you wanted to say it's a very old thin a the old cases don't look anything like chevron. th look a lot like skidmore. general prelogar: i -- i disagree with that. some of them -- say you 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 you. justice gorsh:f it -- if it's contemporaneous and 's uniform, right? general prelogar: and i just want to add as well --

juicgorsuch: i -- i have another question, though. chevron, you emphasize, is -- luneutral and it'll sometimes favor industries tha are regulated and sometimes favor the governme. and i can certainly see that in scenarios where we talk about the flip-flop of administrio and new people leave -- come in and replace othe a -- and there's a lot of movement from industry in anouof those agencies. i think or stigler talked about regulatory capture. i don't worry in a chevron regime about tseeople. they can take care of themselves, okay? there is political account, fine. the cases i saw roiny on the courts of appeals -- and i think this is what niggles at so many of theow court judges -- are the immigrant, the veter seeking his benefits, the social security disability applict, who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which

people vote, generally speaking. and, there, chevron is almost alwaysi dn't see a case cited, and perhaps i mseone, where chevron wound up benefitting the nds of peoples. and it seems to me that it's gule, and, certainly, the other side makes this argument powerfully th cvron has this disparate impact on different classes of persons, and i wanted to give you a chance to respond to that. general prelogar: sure, and i have a couple of different reactions to that. one is to say that i, of course, acknowledge that the way that chevron operates, it gives effecto ency interpretations even in circumstances where that might be oppositional, some of the categories of individuals that you're identifying. but, if it does that, it d that in accordance with ngress's intent and wishes that there are certain agr delegations that congress can make to agci and certain gap-filling that agencies can do

io't think there is a kind of fundamental flaw. justice gorgeous -- gorsuch: it is in favor of the immigrant, in favor of the veteran and the social security applicant, but because of a fictionalized statement congress wanted when it did not tnkbout the problem, the governmenalys wins. general prelogar: there are a couple of different ways t commit the concern. it is not just in the exercise of discretion the court with think something is fr and for the gap in that way, but rather e core things that actually the reasont fair is because i have a sense that congress spoke to this. ianetermine a based on all of the tools. justice gorsuch: it does not matter whether congress actually thought about it, and that there are many instances where congress did not think abo i and in every one of those

chevron's exoid against the individual and in favor of the government. general prelogar: i do not think it is fair to treathaas an exploitation. congress has been aware. it can change chevron at any time. it can displace if you think that is being used in a situation not warranted. justice roberts: justice kavanaugh. justice kavanau: think the other side's arguntuggests the basic analytical concern at the het chevron is that it treats law as policy. and if that is antithetil our constitutional structure and the rule of law. and that is why the footnote nine question is so important. because if you use the traditional tools in a nonagency case and got an answer that suggests it is a statury interpretation question. and you are saying, no, you can stop short of that in an agency case in some difficult tfi -- define point and treat the stf the case as a policy call for the executive branc

and that is treating what was a w estion in an nonagency case as a policy question in an agency cas a it is the same question. so it tnsforming law into policy. and that is very difficult, i thk,o accept, if you accept the idea that a premise of the rule of law is that the execivand the judiciary cannot just treat the laws passed by congress as mere exesons 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 principal in footnote nine. we agree that is an important prcie. and to thextt there are agencies or lower courts that are effectively not giving the effect tooness's own enactments then a court can police that and puin affect the footnote 9 principal in a

robust way with a rigorous analysis. that is the kind of instruction the court gave in kaiser. juste vanaugh, i think it's not a different question in the en context and nonagency ntt. what i understand chevron to b doing is figure out a congress spoke to this issue. and if so, implement it. but hold open e ssibility congress did not speak to the issue. and in that context, if congress has given the agency this primy,ritically important role to administer the statute, that should give deference if e agency stays within the bounds congress set. in an nonagency case you don't have t ancy to relying on. you might end up thinking congress did not precisely speak tohis issue, but what is the best that i can do to figure out w congress would have resolved it or what is the interptaon most consistent with the overall statutorscme here? the rht way to resolve this case, congress would know that courts are going to have to do that in coext without an agency. it is still followg e terms of the statute.

i think it would ba ction to suggest that what the court is doing there is following congressn plicit expression of the matter. justice kavanaugh are -- kavanaugh: ihi it is important to distinguish statues that involve legal queio of statutory interpretation. there are tons of statues, let's go back to the a.i. example, that explicitly confer broad policy discretion on agencies. that is where state farm kicks . and that is where we have always been deferential. genel elogar: correct. justice kavanaugh: you acknowledge those are two different kinds of statutes. e atute that says for example no one canat more than 50 fish today. the nexttatute is basically the agency c dine what a reasonable number of fish that can be caut a reasonable day. the second statute confers broad policy discretion. do you agree those are distit?

general prelogar: i tnkhat one is a clear bestowal of discretion on the agency. i think it shows congress can legislate in a variety of ways. justice kavanaugh: so you agree congress can legislate broad policy discretion to an agency or grant explicitly through words le reasonable, appropat general prelogar:bsolutely. i think the same question and sometimes come up in those context. congress has had tboow from the chief justice's example, reasonable truck lengths, there isn't an agency interpretati. the court is going to have to do its best. that is actuay aning to create a zone of discretion. justice kavanaugh: that is the state farm question as i wou see it. two more questions, i wa t make sure the concerns of the other side get a chance to respon so othis would be taking power and grant to get to th judiciary. there is a different conception

of chevron that it is taking power from congresanshifting it to the executive and allow ed the executive in see to unilaterally make policy without congress. and one of the concerns historically from the beginning of this uny was unchecked executive power. and you hear presidents criticized all the time,hether it is roosevelt, reagan, bush or obama, criticized for exercising unchkepower. the concern is about chevron ushering in aggressive assertions of unilateral executive power. and that is the concern that i think the other side has. not about the judiciary taking power, but the judiciary having taking it from congress and shifted it to the executive contrary to her usual concerns. general prelogar: i disagree with the characterization that chevron permits and congsss powerless to do anything. in the first instae ngress has to make the delegation to

the agen a the court can enforce that, and so cgrs knows to spe patiently -- capaciously when it wants to bestow disetn, to speak plainly it wants to rain an ency in and resolve an issue itself. core can change the rules of deference that apply in any context. there have been particular hemes 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 kavanaugh: this is a technical point. most presidents woulve or get rid of the chevron deference. that's the technical points. last question, which is there was talk about democratically ected political branches. i want to get your agreement on something that i thi y will agree on, the role of the judiciary histicly under the constitution to police the line between the legislature and the executive to make sure that the

executive is not operating as a king and is not operating outside the bounds of the authority granted toheby the legislature. you agree that is a proper judicial role? general prelogar: i agree with atbut i think chevron is consistent with that. theou polices the executive at that one by ensuring congss his own choices are put into operation. if further poleshe executive at step two as the court said in kaiser, reasonabne is a test that agency can bail. -- can fail. there is work to be done to make sure the agency doesn't transgress some outer boundary line that congress set. justice roberts: justice jack e jackson: picking up where justice kavanaugh left off, that's in the court have to not only police the other branches, but itself as well? by that i ano the extent that the other side raises the concern that, you they are treating law as policy. isn't there a concern that

policy questions might be treated as 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 way to illustrate is to think about degation like the deceptive practices as defined by theectary. if there were a statue this -- statute that said that, of course the court couldn't come in and say the secretaryai what is a defective practice? i think theris better way to think about the concept of what is deceptive. therefore, i am not going to override what the agency is ne or not give any weight to it. congress has decd what you should do as a court is paying atteioto what the secretary did. the secretary was vethat role in administration. obviously chevr alies to circumstances that delegation is to identify the same basic idea where i think the courts rule -- justice jackson: why isn't the answer with the other side said,

which is really make cona that? in other words, it seems to me their argument is when we are policing this line between what law and what is policy we should require congress to say the secretary gets to kehis decision. and when it doesn't, iue we look at it as a legal question that the court can decide? general prelogar: i think that argument wou he more merit if there weren't much water under the bridgen e fact that the court explained when or what identify this kd delegation 40 years ago. petitioners talked about the reliance interest year and tried to diminish them. they did not talk about congress's own interests and reliance on chevron. i think at this jutu, to say that we are going to switch to default and make congrs discretion is in part would be to run to the trent of congress's own reasonable expectations with respect to drafting. it also does not account for the category of sewhere the language congress is using is insed with discretion. they agrd terms like reasonable, appropriate, necessary. those are rmthat require

greater application to fill in the details. you cannot interpr tm in a vacuum. so i don't understand how this idea of making congress say it could function in that kd world. and inheinal thing is congress has said something very important here, the agency shall administer the statue with regulations or adjudications that have the force of law. that is part of the statue as -- statute as well. justice jackson: you think that really carries a lot? i've heard you focusn at many times when you are talking about a situation in whi deference should be required. general prelogar: exactly, congress in each and every statue wherehiis going to be applicable or chevron deference will be availae going to have made that judgment in the statute to give the agency that responsibility and role in implementing the statute. justice jackson: let meusask about whether or not going to the issue of ambiguity, wh has come up nyimes, whether or not the court cldlarify

when there is a gap or ambiguity that allows r requires the court to go to step two? and what i am thinking about is wh i mentioned about previously with your friend on the other side, which is some scholars have actually identified diffeinds of ambiguity. so in one scenario we ve statute that uses a broad term and that term encompasses a range of reasonable meanings. there are three or fou different ways that could be reasonably, you know, the meaning of stationary source, for exame. but then there is also the kind ofuity in which a statute can mean only one thing, either letterb perhaps as of the way language is put forward in the statute. it is just unclear. whether it means a or b. i take the scholars to mean that really in the former scenario is

the one in which we have a situation where chevron derence would be required. and could the court say let me clarify, i look at it as that is reducing tlicy choice. that once we are in the world of finding the kind of ambiguity where there are a number of reasonable alternatives in terms of making etermination, then iust 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 there certainly this court could provide more guidance to lower courts. and in particular identify the types of statutory issues and might clearly note discretion. there are gog be some easy calls on this. the types of situations where there might be multiple ways to implement and signal there really is a zone of discretion and the agency should have flexibility. my only concn th going down the roadf ying there is some

fundamental difference with respect to parcur terms that might be subject to only two possible ways to be implemented is that there is kind of an endless number of stueout -- statutes out there and all kinds of varieties. i rrthat it might side of certain context where congress actually is comfortable with i thway of implementing that particular term, even if there are on t possibilities, and did in fact delegate that issue to the agency. so i wouldn'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: thank you, your honor. first of all, i think it's really important to be very clear about what chevron does. it takes the power to say that the law or what the law means. to saythe law means x, it takes that power away from cond gives it to agencies. if then forces agencies -- forces courts to adjudicate the

rights of individual litigants that are in front of them based on a versionf e law that the courts themselves do not believe is correct. do not belves the best interpretation. neither congress nor this court can create a doctrine for -- or legiate statute that effectuates that reallocioof interpretive authority. my friend on the other side that the purpose of chevr ito set the ground rules on how the different brch of government should operate. with respect, i think the constitution says to ground rules and it makes clear the judicial power rest with the ur, not with agencies and certainly not with congress either. i think the apa reinforces that. the litor general tries to rescue or reconceptualize chevron by taking issue with our gunt that under chevron if the court thinks the best interpretation ix will have to apply y because the agency

told it to. that is exactly what chevron sa. it tells the court that it has appld terpretation that the cot itself would not choose. interpretation that the cot itself does not think is best. the solicitor general also described chevron aspping in the formulation that hurt a lot, it applies that the agency didn'relve the question, an innocuous raising. what irely meant by that is chevron applies in cases of ambiit and ambiguity has always been detood as a situation where reasonable people can disagree about what the law means. that just broadens the scope of deference. ambiguities e l over the place. courts resolve ambiguities all thtime, that is core to the interpretive function. there is no as to think just because congress is accidentally left an amguy in the statute that what it is trying to do is have it resoedy policy decisions made by an agency. justice barrett asked about the stification of chevron rather the intent justification is valid? i to mfriend to concede the

delegation is fictional. but nonetheless to say we should apply it anyway as a prumion. i do not think you can get the mileage that you nd get out of thententional delegation theory after you have conceded it is fictional. thon reason it has weight is if it is actually what congres wanted to do. ifongress did not want to delegate it, then we should not be reconceptualizing how we think aboustutory interpretation based on a fictional premise. here there is no reason to think congssctually wanted to delegate policymaking authorit togencies to resolve any ambiguity that arises in any statute administered by the agency. i think the government solutions to that problem is to propose a clear statement requirement on congre. hey, you can just legislate more clearly. ambiguities are unintentional. i n think that works. i think that would impose a massive clarity tax that is justified.

i inthe precedents made very clear eyere talking about remedies in those cases that expressly say if we were interpreti tse legal issues in a different context where we were not limited by the limits on mandamus remedies we would apply our best and independent judgment. the solicitor general is looking at text that requires t interpret statutory provisions. d is saying that rule interprets statury provisions and is consistent wi cvron as she describes as allocating inrpretive authority to agencies. the statutes say courts get the interpretation. chevron says agencies get interpretive authority and not court. these arinnsistent. finally with respect to the course correction ideal or the amdeapproach, i would respectfully suggest that you ha tried to mend this and course correct over and ov. that is why wha a chevron

doctrine. it is orlaid with a lot of bells and whistles. it is very hartopply in practice. i think in the real wod you try to mend without ending it you are into put a lot of pressure on the major question doctrine. people will be coming 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 chevron itself. interpretive authority belongs to the courts. if we have the best