doctrine or keep it.

chief justice roberts: we' hear argument first this morning ase 22-1219, relentless versus the department of commerce. mr. martinez. oral argument of roman marti on behalf of the petitioners martinez: mr. chief e, and may it please the court: for too long, chevron has distorted the judicial process and undermined statutory interpretation it should be overruled for three ass. first, chevron violates the constitution article iii empowers judges to what the law is. it requires them to interpret federal ates using their best and independent judgment. chevron undermines that duty. it reallocates interpretive auory from courts to to adopt inferior agencycourts constructions that are issued fotical or policy reasons. in doing so, chevron blocks judges from serving as faithful agents of cong it mandates judicial bias and encourages agency overreach. and by removing key checks on executive power, it threatens individual liberty. chevron allates the apa. the most straightforward reading of section 706 requires de novo review of legations. congress put constitutional and statutory interpretation on independent legal judgment as to both. as justice scalia wrote, the apa' contemplates that courts, not agencies, will authoritatively soe ambiguities in statutes. and, third, this court's justification for chevron is the implied delegation theory, but th theory is a fiction. there's no reason to think that core intends every ambiguity

in every agency statute to give agenn ongoing power to interpret and reinterpret federal law in ways that override its best meaning. in this case, the agency erpreted the msa to force struggling fishermen to pay up percent of their annual profits to federal agents. the government says that even all the agency's construction isat worse than ours, youhod nonetheless defer to that construction and 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. welcome the court's questions. justice thomas: mr. martinez, w much deference is in 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 mean, your argument is that chevroderence is problematic.

but how do we determine how much deference t much deference? martinez: i think you've certainly crossed the line when you have a rule that says that we're going to allocate interpretive authority from -- rticle iii courts to an agency. and so, when -- when you'veot deference that amounts to that, h is what chevron deference is, then i think you've --'ve crossed the line because what you've really ne is -- justice thomas: i think what i'm trying -- wha'm asking is, is? do we know where the line we show deference. you -- 's skidmore deference. martinez: sure. justice thomas: we are deferential infinding, et cetera. so i'm just tryinetermine whether you're saying that we -- if it's not de novo review -- martinez: right. juicthomas: -- without any presumptions or deference, then it's problematic. martinez: i -- i think deference becomes problematic when it requires a judsay that the law means x when really the judge thinks the law means y. i think sk deference is not problematic because it doesn't require that. skidmoerence essentially says -- and we would be very comfortable with skidmore -- that because the agency has a

haan important role to play in the process, often the agey has helped draft the statute, the agency has knowledge of the policy context surrounding the statute and its implementation. of course, courts should pay special ultimately has to bring its expertise to bear in a way that's persuasive. anifhe -- the court isn't persuasive, if the court thinks th the law means x even though the agcy 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 -- martin area of statutory or constitutional -- chief justice roberts: -- let's -- martinez: -- interpretation. chief justice roberts: -- let's suppose the e says the department of transportation will set length limitsor trucks that are reasonable. martinez: gh chief justice roberts: is that a legal question for the court, or is that a policy question for the agency? martinez: i think that -- chief justice roberts: it's a -- the --egal authority says they've got to be reasonable. that's a term that courts apply in many situations.

martinez: i -- i think that a court looking at that ate would try to determine the best meaning of t statute, and the best meaning of the statute there would beha-- that the use of the term real -- "reasonable" confers upon the agency discretion to choose ong certain policy options. now that doesn't mean tt e agency can just do whatever it wants because there are limi, and the court has to police that limits. miig versus epa is a good example. congress used a broad term like "appropriate" and the question was -- which is similar to "reasonable," in giving the agency a -- a range of discretion. but, at the sameim when the agency said, well, we don't have consider costs in figuring out whether something is approprie,he court said no, that, as a legal matter, the best interpretation of the word "approia" in the context of this statute requires the agency to consider costs. chief justice roberts: well, atf the statute says that the agency can regulate -- truck length for vehicles that travel in interstate commerc and there's a question whether or not interstate coer -- the -- the delegation for interstateomrce is satisfied when particular -- martinez: right. chief justice roberts: -- circumstans e present. martinez: i -- i think that that

would be a case if you're -- if the court were called upon to interpret what -- if the dispute was about whether -- what interstate commerce means, i inthat would be a classic legal question that would be legal question for the court. and i think it actually highlights -- because interstate commerce is probably thereecse of the constitutional limitations, it highlights the fact that, really, the same rules should plto interpreting constitutional -- chief justice roberts: well, i mean -- martinez: -- provisions as statutes. chief justice roberts: -yo could imagine -- you could imagine situio where the interstate commerce determinatn peculiarly fact-bound, you know, trucks transferngoads and -- at transfer points on the border. that in interstate commerce for each one or not? and i't the policy judgment of the agency pertinent in that situation? martinez: i think, certainly, e licy judgment of the agency is -- is pertinent in determining sort of the facts because the agency mhte on the ground and understand the factual scenario. but i think there's a -- an important gacomponent to that question, that in any other context, like, f emple, if

you were interpreting the constitution, i think the court would -- would quite reasonably think it's its own job to interpret the constitutional requirement of interstate commerce and would -- would say -- would give it its best meaning. and i think -- justice kagan: well, let me give yo-- martinez: -- the same approach -- justice kagan: -- a few more examples along the se nes, mr. martinez. is a new product designed to promote healthy cholesterol levels a dietaryupement or a drug? martinezsoy. can you give that one more time? justice kagan: a new product designed to promote healy cholesterol levels, is it a dietary supplement -- that's a statutory term -- martinez: ok. justice kagan: -- or a drug? martinezi i think it would depend on -- on the -- the original understdi of the text of that statute in -- read in context. justice kagan: you -- you want the -- martinez: and i think that's a -- a legal question for a court. ste kagan: -- you think that the court should determine whether isew product is a dietary supplement or a drug thout giving deference to the agency, where it is not clear from the text of the statute or from using any traditional methods of statuto interpretation whether, in fact, the new product is a dietary supplement

or a drug? martinez: i -- justice kagan: you want the courts to decide that? martinez: justickan, i think with rescto that question or any other of the -- a legal question, i think what the court would do, there -- therere going to be hard questions, but i think the court would bring all the traditional tools of construction to bear -- justice kagan: they do that -- martinez: -- and would -- justice kagan: -- under chevron. they -- you know, he made clear all the traditional tools, if you can find an ansr,hat is the answer. so the court is very rarely in the situation in which you're talking where it thinks the law means x and instead it says y. if it thinks it means x, under chevron, as we' understood it and made clear and reigned it in a little bit over these last few years, it's supposed to sax. but sometimes law runs out. sometimes there's a gap. sometimes there's a genuine ambiguity. and -- don't know. in that case, i would rather have people at hhs telling me whether this new product was a dietary supplement or a drug.

martinez: so, your honor, i ina couple things. first of all, i don't think chevron is aocine that only applies to tie-breaker 50/50 scarios. it'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 honest reading is that there's -- the's -- there's a gap there -- martinez: but -- justice kagan: -- because of the limits of language, because of the limits of our ability to predict the future. and so who fills that gap? martinez: but i -- i guess what i would sort of push bk is i don't think there's a gap if the court looks athetatute and thinks, hey, this is a really hard case, it's a really close statute. fifty-two percent likely, i think -- you know, i have 52 percencoidence that x is right --

justice kagan: i'llive you -- martinez: -- 48 percent likely -- justice kagan: -- i'll give you another one, mr. martinez. does the term "power productn" -- i'm just -- these are real cases. martinez: gh justice kagan: these are -- esare prototypical chevron cases. martinez: but -- justice kagan: does the term "power production capacity" refer to ac power thats nt out to the electric grid or dc power that's produced ba lar panel? martinez: i thinsa answer as the first hypothetical. but let me try to -- let me try to sort of give you a dierent framework for thinking about this problem. let's age that that statute came to a court before an agency had even acted in the first place. what would a court do? would a cot look at the statute -- a statutory term like that that's a hard -- presents a hard inrptive question and say: well, this is hard, it's rtf 52/48, it's kind of close. i think the law haruout and i'm just not going to be able to decide this. i think the court would go with the best interpretation. justice kagan: the -- the -- the -- the court -- the court in that case would have to make a choice. but, you see, here, urt can say, you know, the best option itoisten carefully and to defer if it's reasonable and if 's consistent with everything that we know that congress has sd,o defer to people who actually know things about these in -- martinez: but -- justice kaga -to -- you know, to people who understand the way rtular questions fit within a broader statutory and regulatory scheme, to people who

have understanding of the policies and of the facts that d this. i'll give you a third example. mainez: can i respond? justice kagan: and this will be my last e,r. martinez, and it's going to be fairest one cause it's going to be one you know aboutwhh is chevron. as a stationary source in the clean air act, ds refer to whole plr to each pollution-emitting device within the plant? martinez: we think that the decision in chevron was -- reected the best interpretation with much respect to justice gorsuch's mother's epa. we think that that was the best interpretation. but -- but can i just go back d i think what you described earlier about listening to the agency and taking into account all those things, our --ur rule would allow that. that's skidmore. thk the only difference between our rule and -- and the sk- what -- the skidmore sort of approach and the chevr approach is that after listening t agency's explanation of all the things that you said, if the court isn't persuaded by the agency that the agency's interpretati icorrect, chevron would say you still have to go with the agency. and that's just like a dramatic thing.

justice sotomayor: but why not? meaning i -- i think all of the play in disagreement is around the word "ambiguity." i know that there have been some earlier cases that sgested if there were two plausible meanings, you went with the agency meaning. i ink we've gone far beyond that. it has to be two reasonable meanings. assuming -- you -- you me assumption that there is a best answer. i don't know how you can say there's a best answer when stices of this court routinely disagree and we routinely disagree at 5/4. is the best answer simply a majority answer? i don't think so. martinez: but,our honor, if -- justice sotomayor: i happen, when i dissentthk the others got it wrong. [laughter] justice sotomayor: and they often do [laughter] justice sotomar:ut putting that aside -- but putting that aside, in those situations, ere are two plausible -- not nearly plausible. there are two best answers.

and the question is who makes the choice or helps you make the choice. and if the court can -- can digr reasonably and comes to that tie-breaker point, and it could 549, it could be 52/53, if it's that close, why shouldn't the person with alof e alities you spoke about, the entity with all of the qualities, expertise, experience, on-the-ground execution, knowledge of consequences, why shouldn't deferencbeiven to that entity? martinez: justice sotomayor, i think your explanation of ambiguity just now just proves the problem with chevron because i think what you said is that whenever there's a case, a statutory case in which th members of the court disagree with one another, that -- 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 hard to figure out a statutory problem. you don't say, oh, it's difficult. oh, there are two interpretaon oh, you know, not everybody agreesitthis in three seconds flat. you don't say that. you do everything yodolook at the text, look at legislative historifou believe in legislative history. look at context. look at every tool you can, and still there are places where we don't know whether this drug is a -- is a -- ia whether this product is a drug or a dietary supplement, and it's be tdefer to people who do know, who have had long experience on e ound, who have seen a thousand of these kinds ofittions.

and, you kw,udges should know what they don't know. martinez: i -- i agree with that, justice kagan. but, wit--ith all due respect, i -- i think i understood justice sotomayor to be saying that whenever judge -- justices of this court disagree about the best meaning of th statute, because, obviously, eryone on the court is reasonable, that shows that there'mbiguity. 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 -- juicsotomayor: that wasn't -- martinez: -- steon justice sotomayor: -- my implication. my implication was that using all the statutory tools, you can still come up, using them in good faith, using them, you can still come up with no answer -- martinez: well, i think justice sotomayor: -- with no clear answer. martin: i -- i think you can can come up with no clear sw because some -- justice sotomayor: or no best answer. martinez: -- because some statutes are hard. but i think you can come up with a best answer, and -- and th reason i think that is because -- justice sotomayor: best only because a majority aee justice jackson: but -- martinez: no, no, because -- because, if you d e same statute with the same interpretive question posed to you without the agencyavg acted, i don'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- justice gorsuch: -- i guess i'm struggling to understat -- what -- what's at stake here given the questions because, as i understand justice kagan's hypotheticals, which are -ar hard ones, that one option would be to say it's ambiguous and, therefore, the agency always wins.

th -- that's what i understood chevron to mean at least cin in here today. another would be to listen refully to both sides and provide special weight uer skidmore to a coequal branch of government's views about e law, which one would think we would do anyway,ndhat they would have -- have -- csidered great weight in arriving at the best answer a tt that's what a court would do if -- if there were no interpretive principles advanced by the executive anch, if there hadn't been some sort of rule or adjudication. is that -- is that correct? martinez: i -- i think that's correct. and i think the difference betwn e skidmore approach that you just laid out and the chevron apoa is just, at the end of the day, once you've considedll the expertise and all the information the agency has to bear -- justice gorsuch: who decides? martinez: who decides? who -- is the judge persuaded or t 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 the judge abdicate that responsibility and say aumacally whatever the agency says wins? martinez: right, even -- even if the judge is not persuaded. justice jackson: but, mr. martinez -- justice gorsuch: and then -- and then -- justice jackson: -- doesn't that -- justice gorsuch: -- and then if i might just -- just finish up, what -- what's the effective difference of that? it seems to me that in the first case, en- when a judge says here's the law, it's settle 're done, right? it can be appealed, but at the end of the day, if the supre court of the united states upholds that interetion, we're finished. whereas, under the chevr approach, are we finished? martinez: no. justice gorsuch: what happens? martinez: i think e ency can overrule what the court said. the agency can overrule what itself said. i think that's a very strange thing, that in every other area of statutory interpretation,e understand the law to have one fixed meaning and the goal is to try to figure out that fixed meanin b chevron by design creates this world in which the agency is -- is -- because there's this zone of discretion, the -- the agency and ambiguity, the agency can kind of flip-fl and then force courts to

iplop with them. justice rsh: and i'm struck on that score by the brand x case, which involved broadband, in which this court said, okay, ency, you automatically win with respect to one inrpretation of the bush administration, i believe it wa and then, of course, the next administration came bac and proposed an opposite rule. martinez: right. stice gorsuch: and then the next administration cameac and flipped it back closer to the first. and as i understand it, the present administrations thinking about going back to where -- martinez: a's -- that -- that's exactly right. justice gorsuch: -- where we stte martinez: that's exactly right, justice gorsuch, and i tnkt -- it plays up the real problem. chevron really ia reliance-destroying doctrine. imagine if you're a psoor a regulated entity and you're trying to figure out what the law is. you should be able to lyn the best interpretation of the law and not have to,ounow, check 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 that's right. i mean, skidmore, i think, would low for -- for courts to give

meaningful weight and coidation to -- to persuasive opinions by agencies. e ly thing skidmore doesn't do is require a court to give its -- s interpretive -- ultimate interpretive say and defer to an interpretation that is not persuasive. justice gorsuch: tha 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 interpreting -- interpreti atatute is a legal one. i see chevron as doing the very importt rk of helping courts stay away from policymaking, and so i --'d like for you to sort of think of it through that lens and help me understand why, if we do away with chevron's framework, we won't have a problem of courts actually making a policy decision.

so justice kagan gave you a number of examples, d think the reason why those examples are hard or why they' aiguous or whatever is because, at bottom, the're not asking legal questions; they're asking pocy questions. how is it that, you know, stiory source is to be defined? that'noreally a legal question. i an, there could be several reasonable ways of interpreting th. think the way i've been thinking about chevron is congress has given that policy choice to the agency. and my concern is that if we take away something like chevron, the court will then sudden bome a policymaker by majority rule or not, making policy determinations. so how can we avoid that? martinez: so we agree, obviously, that -- that courts should not be t business of policymaking. and i think the whole enterprise of statutoryntpretation, when properly understood, is -- is desigd take courts out of policymaking because what the courisrying to do is -- is t a faithful agent of what congress has done and find the

best -- justice jackson: but isn'that -- martinez: -- interpretation. justice jackson: -- n't that what chevron does? i mean, isn't chevron, step on even in this very case, asking the question, as congress made that policy determination? , r example, here, the question is whether or not monitorsn e boats have to be paid for by the owner of the boat. i see that as a policy question. congress could have ides or no. there's nothing about law really inherently in the question should the monitors on the boats be paid for by the owners or t government. so step onas congress in the statute answered that question. whene y no, everybody agrees that's not in the statute, en we say the agency can make that determination so long as they do so in a reasonable way. , for example, here, the question iwhher or not monitors on the boats have to be paid for by the owr the boat. i see that as a policy question. congress could have said yes or no. there's nothing about law really

inherently in the question of should t mitors on the boats be paid for by the owners or the government so step one is has congress in the statute answert question. when we say no, everybody agrees that's not in the statute, then we say the agency can make that determination so long asdo so in a reasonable way. and the -- and courts sort of lice the boundaries of reasonableness, but whetr not the monitors are paid for is not really a legal question. martinez: i think the question of whether or e law allows the agency to -- to force the monorto be paid for by private industry is absoluteegal question. i agree with you that when ngress -- justice jackson: but isn't that me question as to whether or not -- isn't that just anoty of saying, can this policy determination be made by the agcy martinez: no, i don'thk so. i think the difference is when the -- when the -- when the policymakether it's

congress or the agency, is sitting there and tro figure out, like, what the best policy is, would the wor ba better place if industry has to pay for these monitors or not, that's absolutely a policy qution. justice jackson: ok. so that's the question -- martinez: but -- but -- justice jackson: -- right? mainez: no, because, when it comes to a court, the cot not figuring out what the best thing for the world is. the court is figuring out, well, what did congress actually want here. it's -- justice jackson: but i gss'm afraid that the court really is figuring out whathbest thing in the world is if we -- martinez: but -- but -- justice jackn:- look at it through your lens, right, beus if the answer to the question is, you know, should -- should they pay for it or not, the agency has a view, and unless we're deferring to that view, i don't see why weren't overriding the -- the agency's policy preroga martinez: the -- the question that the court shoul answering is not should agency -- should industry pay for the monitors the question that the court should be answering is, did congress require or allot -- industry to be forced to pay for the monitors? and that's a very different question. that's the different betweelaw and policymaking. and i think the whole assuti and the whole understanding of statutory interpretation under this court's cases is there's a difference between law and policymaking.

judges are there not to exercise force or will. they're there to exercise judgment. neutral umpires.re serving as they're not players on the field. justice jackson: all right. so how does that -- justice barrett: mr. martiz justice jackson: -- play out under your interion -- so, here, what -- what is the question we're supseto be answering? martinez: the question you' supposed to be answering is, did -- does this staequire -- has congress required -- either required 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 thi that is a legal -- both ofho versions of that question are legal questions, and the answer is no. juicbarrett: mr. martinez, can i ask you a question about the li bween law and policy? and i want to asyoin the context of one of justice kagan's amples, the dietary supplement or drug. where is the line between something that would be then t to arbitrary and capricious review and something that'a estion of law? because i'm just wondering whether we could say that the definiti of dietary supplement or drug might be something that's qution of statutory interpretation in the context of the state,ut which category any one thing fell in might be a

question of policy for the agency. martinez: right. i justice barrett: is that possible? main: -- i -- i think that's right. i think that would be mo oa -- of a, you know, application of law to fact or ual question. but i think the core qstn of, like, you know, what is the meaning ofiery supplement, and i forget what the other alternative was, those are legal questions. juicbarrett: but whether the particular cholesterol-reducing drug fell -- martinez: right. stice barrett: -- in one category or the other, i mean, you know martinez: that -- that would be a -- ste barrett: -- presumably, that depends on how does this futi? what is the mechanism by which it decreaseshosterol? 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 th lal component. ste barrett: i want to ask you something about your article iii gunt too. you know, justice thomas asked you what the line is. and, you know, crtall of the time make judgments about whether thin a reasonable. but i -- io't understand you to be disagreeing that things likeheer something -- that an agency could be tasked with deciding what was e st feasible, most useful, most reasonable. we, urts could do that too. so is that a delegation of judicial power that would offend arcle iii in your view, to

give those kinds of -- martinez: no, i think -- justice barrett: -- decisions to an agency? martinez: -- i think the way to think aboue kinds of -- of statutory provisions would be that the best retation of the statute, given the nature of the woasonable" in context, is to confer a range of discretion on the agency. and so i think a court in that ca -- if -- if the agency is operating within the range of discti, that's arbitrary and capricious revi. if the agency is sort of operating at the eesyou have to figure out where the guardrails are. that's the legal question. , if the -- if the statute says, yokn, the agency can pick red, blue, or green, then the choice among those three options is for the agency. t, if you have a legal question like, oh, doepi 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 stu tt said we haven't relied on chevron for 14 years. and judge kethledge has written he's been a judge for 10 years.

he's never invoked chevron step two. you know, judges are used to decidinghis, and when they get around to doing it, they tendo ink what they've come up with is not only the best answer, but it's the only answer. [laugh and -- andt 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, t e lower courts still have to apply it. and i thinthe two cases, the -- the two that you're going to hear this morning, sort of show wh hpens when -- when courts are applying this doctrine because ty're -- they're essentially getting to a pot where they don't really have to figure out the bes answer and they can just -- you know, instead of asking what does the statute mean,hecan ask a different threshold question, which is, is this statute ambigus ough that -- that we should just, you know, lethe agency do the work for us? chief justice roberts: thank u. justice thomas? justice alito? justice alito: mr. martinez, would you age at one of the reasons why chevron was originally so popular was concern that judges were allowing their policy views, consciouslornconsciously, to

-- to -- to influence their interpretation of the statut in question? martinez: yes. justice alito: why w tt fear unfounded? why do you think now that e fear was unfounded? martinez: well, i think three things. first of all, i think the fear has -- it's reasonable to think the fear has diminished over time, regardless of what iwathen, in large part due to the very salutary developments in the way that this couranthe lower courts generally now think about stutory construction. in the old days, there was a lot of reliae legislative history and on sort of more free-form analysis that i think made it easier for policy nserations to infect the judicial decision-making process. but this court has now mad clear that, you know, really, we should be text-focused, we should be focused on faithful agency to congress. so i think that o difference

i think otr difference is courts now have become more appreciative of the fact that we're not just talkg out, you know, judicial -- rules of, like, judicially made commonaw about how to interpret statutes. have the apa here. justice scalia was a big defender of chevron in its original incarnationutover time, came to realize that the apa had text that actually bore on this question. and i think, when you're enforcing that text, you come to the samela as our article iii argument, which is that courts have to exercise inpeent judgment. justice alito: do you think that e canons of interpretation that we have now and all oth other tools that we have in our statutory interpreti toolkit are like the enigma machine and so we have these statutes and they're sort of written ico and we run them through the igma machine and, abra cadabra, we have t bt interpretation? do you really think that's how it works? martinez: i -- i think that what this courtoewith respect to the normal canons of constrti is it's used the -- it's -- it's generated the canons as rough rules of thumb

toelguide the interpretive process because, if the court believes that the canons best approximate the best ori meaning of the statute, especially -- and then there's some canons that -- that sort of are not purely textual canons but that sort a informed by constitutional -- foundational cotitutional values. i think chevron's very differe from that because, with chevron, y're doing something -- you're not trying to find the best interpretation anymore. u're, in fact, agreeing that you have to impose the not-best interpretation because you have to defer. and so, unlike a t other canons, chevron is the only one that says to crt you can stop doing your normal interpretive function and we're going to allocate that interpretive function outside of article iii. justice alito: thank you. chief justice roberts: justice sotomayor? justice sotomayor: i counted over, i think -- not i -- the solicitor general or someone has given us a list of 77 cases in which the court has used the chevron approach and interpreted what t l was. your overruling chevron puts a question to all those 77 cas.

martinez: no, your honor, i think -- justice sotomayor: no, your out is it's stardesis now? martinez: right. so -- justice sotomayor: until the agency does something else? and then people can come back because it's not stare decisis anymore? martinez: so i thi, th respect to the effects of -- of applying normal rules of construction here instead of evron, i'd say two things. first of all, the 70 holdings or whatever, the bottom-line holdingsn ose cases would get stare decisis, so they would not be under so there's no convulsive change of the law with respect toha justice sotomayor: i don't derstand how that happens. once you have a new apprch i'm not sure. martinez: i -- justice sotomayor: but let me move on t second part of my question, which is the cases that come to t crt are usually the hard cases. so you say in the last 14 years we've barely referenced chevron. and y know what the breakup is? hooften have we consistently upheld the agency in those

cases? martezin -- in the cases since 2016? justice sotomayor: yes. martinez: i -- i don't know the track recordn , your honor. justice sotomayor: i know, it's interesting. martinez: but i will say, i me, ere -- there's some prominent -- justicsomayor: but -- but putting that aside where we digree, do you suggest that our disagreement was based on ignongf chevron or us doing exactly what you say we should be doing, which is to say this is outside the bous reasonableness or around the guardrails because you're going outside of plausible -- rtez: i -- justice sotomayor: -- of asonable interpretation? martinez: -- i think theou 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 the lower court decision because it does acy the right thing. it does all the canons at step e d it -- and it essentially says, like, the statute is clear. but i think what those-0 decisions show is how confusing and unworkable cvr is because the lower courts, you know, purported to do or didn't

really d 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 rather because it thought that the statuteas ambiguous enough that it required defer and so it's like a threshold -- justice sotomayor: counsel, that judgment is inhere in every question. i mean, that -- that kind of obm is just a part not just of judging but of decisionakg, period, of life. and so it's not cleatoe that the fact that there may be some ambiguitabt what -- how much ambiguity, the question that justice thom aed, it doesn't take away from the basic premise of chevronwhh is a reasonable interpretation within the bounds of -- of common statutory interpretation should be given deference. martinez: right. but i do think the ambiguity trigger introduces a whole kind of thresholdueion that's very hard to apply neutrally. i mean, you have great judges, judge kethledge, i think, was rereed. he doesn't -- he never found a case that required h tgo

past step one. just silberman, another ea judge, said that in most cases he thoughthetatute was ambiguous. and if there's that much disagreement, then i think that's a sign that chevron really isn't workable. and this court hasri to rein in chevron in numerous ways, but i think that what alofhose efforts show is that you kind of need a secret decoder ri t figure out what the law means under this court's approach. you have to do step zero. you have to plneed. then you have to do a robust step onenqry, taking into 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 epne and a half, where you have to figure out whether the agency biguous.ed that the statute was under kisor, th's maybe a step three that says you turn off deference he agency's operating outside of its area of expertise. and then overlying all that you've got the major questions doctrine. and so tnk, if -- if -- if that's kind of what -- justice sotomar:ell, that's the court's creation. rtez: right. but it's the court's creation because it'trying to solve the fundamental problem, which is that chevr idoing something very weird.

it's taking interpretive authority atelongs to courts and it's giving it to agencies. so all of these bells and whistl a efforts to kind of claw it back to address the symptoms, but i think it's time for the courtoddress the disease, the underlying problem, which is chevron itself. chief justice roberts: justice kagan? justice kagan: mr. martinez, i want you to think of this from congress'pepective. so i was thinking what is the next big piece of legislation on thhozon and who knows, don't have a crystal ball, but i'm going to say -- i'm going to guess that it's artificial intelligence. so let's imagine congress enacts an artificial intelligence bill and it has all kinds of delegations, maybe it creates an agency for the purpose or maybe it uses exti agencies and it has all kinds of delegations to that agency or agencies about how rulate artificial intelligence so that this nation can capture the -- the -- the portunities but also meet the challenges of that.

and then, just by the nature of things and especially the nature of the subctthere are going to be all kinds of places where, although there's not an explicit delegaon, congress has in effect left a gap. it has created an ambiguity. and what congress tnking is, do we want courts to fill that gap, oro want an agency to fill that gap? when theorl techniques of legal interpretation have run out, on the maerf artificial intelligence, what does core want, mr. martinez? martinez: i think congssants courts to interpret the best interpretation of their -- justice kagan: congress doesn't know -- kagan: -apy the best interpretation -- justice kagan: -- what that answer means. congress knows that there are gog to be gaps because congress can hardly see a week in the future with respect to this subject, let ale year or a decade in the future. and congress knows that there are going to be things that it writes that it's stot going to be clear how this will apply or what it will mean with

respect to countless factual situations that this country will have toddress. does the congress want this court to decide those questis, policy-laden questions, of artificial intelligence? inez: i -- i don't think congress wants the court to policy. i think congress wants the court to do its ordinary function, which is interhe law and figure -- and apply the best detanding of the law. and i think that the implication of youqution is that this is some sort of intentional delegation by core that chevron deference is -- is this implitelegation. but i -- i don't think that's right. i think maple, including a very insightful article that -- that you wrote 20 years ago, make clear that this is ional. this is delegation of a fiction. justice kagan: fictional just means -- is like academic ea for presumed. we are indeed presuming congressional intent. the congressional intent, yo know, the -- the delegation that's not explicit on the of this statute, but what we're thinking is core knows things about different institutions, about what the know, about what they're competent with rescto, and congress knows that this court and lower courts are not

competent with respecto deciding all the questions about ai that e ing to come up in the future. and what congress wants, we presume, is for people who actually know about ai to dede those questions. anal, those same people who know about ai are people who, to some degree in some way,re accountable to the political process. they have nstuencies. they have fact-finding abilities. they are obligated to go consult theople. they report to a president, wh needs to be elected. in all kinds of ways, bo wh -- with respect to expertise and with respect to their conntis to the public and to other policymaking entities, those are the people congress wants to decide questions about ai. we don't even know what the questions are about ai, let one the answers to them, we being the court. martinez: justice kagan, i

think, if we're trying to figure out what the -- what the reasonable thi tinfer that congress has presumed, i think e r more reasonable presumption and the one that's most csient with our constitutional structure is that congress is going to presume that courts are going dlaw and not policy, they're going to pick the best interetion and force the best interpretation as to this statute in e act same way that they would do it with respect to any other -- any other statute. and i this think case actually -- you know, ai is a trickier example -- 19 example. i me, is case, you know, whether it's -- it -- it s 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 that, is more like the countless poli iues that are going to confront this country in the years and decades ahe. will courts be able to decide the sues as to things they know nothing about, courts that arcompletely disconnected from the policy process, from the political process, and, you know, that just don't have any expertise and -- a eerience

in an area, or are people in agenci gng to do that? martinez: i -- justice kagan: that's what this case is about. martinez: -- i think the constitutional answer is tha congress needs to set the rules with respect to ai. it can delegate some policymaking discretion to agencies, but once the law is written and the interpretive function has begun, then that b is -- is for the courts. and i think this case actually really is a good example because i inthe problem with chevron ishat, like, no one really -- i mean, i'm curious to see what e solicitor general will say about this, but does anyone really think that congress was presuming that the agency would t to decide the question of who pays for the monitors? justice kagan: ok. i have one last question. do youhi that congress could codify -- codify chevron? martin: -- i don't think so because i think that -- that a statute that codifies chevron would say, essentially, thathe interpretive authority has been allocated from the court to the agency. i think that -- justice kagan: cgrs -- 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 t decide that it wants people who know something about something to decide the questions that will be left over? martinez: i -- i think that gives away and- d would -- would take away from courts and give to agencies core judicial interpretive authority. i don'think congress could do that. inhe same way that congress couldn't tell the presintow 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 kagan: thank you. chief justice roberts: justice gouch? justice gorsuch: do we have to decide that constitutional question? martinez: i think it makes sense to decide the constitutional question i think you could -- justice gorsuch: that wasn't -- do we have to? martinez: i think you could relvthis case under the apa, and we would certainly welcome an -- an interpretation of the apa that comes out our way, especially if it's informed by constitutional avoidance principleshai think have a lot of salience here. justicgouch: are -- does anything in your argument suggesorepend upon the idea that judges should make or cide policy questions about ai

or anything else? martinez: no. we -- we a hundred percent agree that judges should n do policy. we just think that they should doaw and that's in -- chevron is about legaqutions. juicgorsuch: then there was some question about past decisions, and as you pointed t,his court's moved away from using legislative histo to some degree in favor of text, and we've made other changes in our interpretive approaches too without congre's intervention, for example, in sovereign immunity contexts, returning to e ear statement rule that had preexisted this court' jurisprudence for 200 years, and then we wandered off into legislative history and circled ckround and corrected our own mistake. we had to de wh the question of what to do with those precen, and our answer was to leave them alone from -- from those anenregimes, as we -- martin: ght. justice gorsuch: -- called them. are you asking us to -- to do anything different wn comes to chevron? martinez: no, and if i could just explain what -- how i think

the world would look with respect to the old cases. i think stare decisis would apply to the holdings of those old cases. i don't think that -- that anything wldhange. you know, stationary source would ilmean what it meant wh -when the court issued that bottom-line interpretation. d so i don't think that this would -- a ruling in favorf our side would -- would require or entail overturning any of those old cases. i think whate ally care about is prospectively, both with respect to the fishing regulation here but also with respect to other cases that come forward to the courts, making surehacourts are the ones doing the interpreting and not agencies. justice gorsuch: thank you. chief justice robert jtice kavanaugh? justice kavanaugh: several questions. first of all, on skidmore, there was reference to skidmore deference, and i guess i don' think that's the right term, that it's respect or pay attention to, but i think, if we throw the term "fence" into skidmore deference, we'reoing to walk into another problem -- martinez: some -- justice kavanaugh: -- like the one we he th chevron

deference. martinez: some might say "deference" is ambiguous. think that -- [laughter] -- that it's imprecise. i think the better way -- i think oftentimes, when ppl say "deference," what they mean is that if you think the ansr is x, you should defer to someone else's swer, which is different. i don't think -- i think absolulyhat that would be inappropriate. so i would not use "skidmore defenc because i think it -- it runs the risk of -- of giving that ilition. i think that, really, we're lkg about very serious consideration of the pointth the agency makes, but, ultimately, you have to be persuaded. d if you're persuaded, then that means that you've concluded that the agency has the best interpretati a then you just apply the normal rules. justice kavanaugh: right. i thought skidmore was about the power to persuade, not the power to control. martezexactly. justice kavanaugh: yeah. martinez: we -- i age th that. justice kavanaugh: ok. on the constitutiol sue that justice gorsuch and justice kagan were raising, you have lots of argumenthe, and mr. clement does too, for overruling chevron without rehi the constitutialssue. so i guess why -- why would we reach it?

if -- if we agreed with you on erruling chevron on other grounds, i don't sethneed to address the hypothetical that justice kagan raised about congress pasng chevron-type regime. martinez: i think three things on tha like i said earlier, we would certainly welcome overruling chevron, especially under the apa and especially if foed by constitutional avoidance principles. bui think there are three reasons why you should csir going beyond that to the constitutional holng there are going to be some cases th, a technical matter, section 706 ofhepa wouldn't -- doesn't apply. and so, if it's an apa holding, it m bthat in those cases there might be lingering certainty about whether deference should -- ould apply to cases that aren't technically under section 706. i think the second thing is that a lot of the analysis in figuring out what the tynder the apa to interpret the law, i think a lot of thaanysis really overlaps with the constitutional points. and i thk,f you -- if you get to a place where you agree with us on thepait's not that far, not that different uimately agree with us on

the constitution as well. and then, finally, i would jt say that although, of course, this court often preferso le on non-constitutional grounds, i think it's also recognized in cases like pears vsus callahan that there's going to aalue and a benefit to the judicial system to providing claritabt what the constitution means. i think -- i would respectfully submit this is one of the situations. justice kavanaugh: on the question of w ch does chevron matter on the ground, i think you addressed this a little bit by citing jud silberman, but do you want to elaborate on that? i mean, are tre are cases, i assume, that get to chevron step two pretty regularly. martinez: very regularly, your honor. it happens all the time. and i think, if a case like this one orwoases like these two can get to chevron step two, i think thatugsts that it's really hard to figure out how chrostep one is supposed to work. i mean, the digital realty case is another great example. that's a case where there was a statutory definition of the term "whistleblower" that required the person to have gone to the sec and -- and, you know, submitted a -- a complaint, and

the gornnt and the lower court concluded that that was ambiguous and that it might ac apply, it was reasonable to read the statute to not require a report to the se so i think there are cases, there are examples like these that come up all the time, and, you know, thankfully, this court doesn't haveo tervene every single time, but the reason that the problem is there is because you'veollower courts how to do their interpretation. and as long as that instruction is out trethere are going to be a lot of cases that get it wrong, and you're not gngo want to be in the business of sort of error rrtion on each one. justice kavanaugh: on th question of how congress can operate without chevron, i just want to elaborate on -- have you elaborate on that a little more. mystanding is congress oftentimes will use terms li "the agency can regulate reasonable limits" or "appropriate limits," and that gives, under state farm, a lot of discretion tohe agency to make choices to do what justice kan was talking about, to think about the world as it existsivyears from now or 10

years from now and not have to worry about going back to congress. so the question reallys r congress and its drafting choices, i think, what kinds of broad, capacious terms it uses, as opposed to using more defined terms or stury terms -- usual kinds of statutory langge yes, it can't rewrite that. ateast that's how i thought congress could operate in a world where chevron does not exist. martinez: i -- i thinkh's exactly right, justice kavanaugh. and i think that, like i said earlier, in -- in those situations, the court's job is basically figuring out what the bestnterpretation of that word is. and in many cases, maybe most cases, those types of capacious words are basically -- the best understanding of those words is that congress is, in f conferring the discretion on the agency. that's very different from chevron, whe, stead of having any sort of language like

that or express language conferring a delegation, you're -- you're basically applying this fictional implied delegationhat -- that is triggered by ambiguity, which is like -- you know, frankly, it's -- it's -- it's not -- 's fictional, it's made up. and so i think a world iwhh congress, when it wants to delegate to agencies, needs to be express a language like that or other language, i think is a better world from the perspective of -- of article i and omrticle iii. justice kavanaugh: thank you. chief justice roberts: justice barrett? juicbarrett: mr. martinez, i want to return to the question that justice sotomayor raised about stare decis. so you said that overruling chevron wouldn't ha aeffect on the many cases thatav gotten to chevron step two and then deferred to t ancy. you said -- am i -- did i understand you correctly? rtinez: those bottom-line so isn't it inviting fld of litigation even if for the moment those holdings stay intact? martinez: so i would sayhe bottom-line holdings in those cases, i would just quibble slightly, i would -- i would deribe the bottom-line holding as being that the agency's ti was lawful. and so that's the bottom line. i think it's ue that people could come and say, look, the teretive methods have changed since this bottom-line holding was issued and we think that -- that, you know, a different result now should appl

and -- and th's why courts consider requests to overturn predt. but i just think that they would apply the sa sndards that they would apply to other stare decisis inquirie a i think it would be the rare case that would reir-- that -- where a court would say this -- this decision not ly isn't the best interpretation, but it's like so bad anso practically important that we're going to overturn our own precedent. so i think that would be the safeguard. justice barrett: so, when you say that the bottom-line holdinu -- you've kind of changed the level of generality, righ if you say the bottom-line interpretation is lawful, you think it's not open to people to come back then and say, well, it's actually not lawful, this is wrong. the court got it wrong because the bestntpretation isn't the agency's. martinez: i -- i thinkants could make that argument, but i thinth would have to overcome the normal stare decisis test, which vy hard to overcome, and so they would probably have to shoth it's really wrong and really practically important.

and i think most courts, and i imagine this court, is -- going to find that that threshold is -- is met, like, alst -- very rarely, maybe almost never. and so, as a practicalatr, you're not going to be upending, you know, those -- tho bottom-line decisions -- justice barrett: ok. martinez--ven if you let people in theory come and challenge them, whicth can do now. justice barrett: so let me ask you -- you -- you just referred to the, you know, serious stare cis threshold, you know, that would have to be overcome. martinez: yeah. justice barrett: so let's talk about the ardecisis threshold here. why is it different here than it

was in kisor? you know, in kisor, the court declined to ovru auer and the part -- the opinion that was for a majority of e urt was largely it was on stare decisis grounds. w would a different result obtain here? martinez: i think my first answer is that the chief justice's opinion suggested it might be different and i think the reasons why it's -- it's reason -- it's -- it's -- it really is different is becau there are important differences between chevron and auer. the most important that i think plays on the reliance question is this idea that chevron allows and -- and almost lieature of chevron, nog, is that it encourages and allows agencies to flip-flop. and so theelnce consideration with respect to chevron is -- is much, you weaker for -- for -- for the government's side becsehe agency is allowed to flip-flop all at once, whereas, with o deference, the idea is that the agency -- it's going to be ry hard for the agency to flip-flop. so i think it' important to correct chevron because it's -- it has thatiske that auer doesn't. there are other differences. u know, chevron is problematic because it lets agencies say whgress intended or what congress's meaning was, as opposeust saying what they themselves meant with the regulation tha themselves enacted. so i think the -- the kind of -- u know, the deference makes more sense when you're deferngo the entity that actually created the provision in question as posed to deferring to their interpretation of -- of a prisn that was created by congress. i think, in addition, you kn chevron is not limited to agency expertise. auer is mid to agency expertise. so auer is -- is narrower. and then, finally, i do think there's a difference even with respect to the apa where i think the apa more clearly puts constitutional interpretation and statutory interpretation o equal footing, and that might play into the analysis. you know, this court, the pluritin -- in kisor sort of

emphasized that -- that the apa was enacted after seminole -- a year after seminole rod so maybe that was a basis to think that -- that congress was okay with something that like auer deference. but that'true here. chevron any years after the apa. so i think there are a lot of differences that really flesh out, i think, the justice was making, which wasf that the analysis there doest automatically transfer over to chevron. justice barrett: thanks. chief justice roberts: justice jackson? justice ja so i've heard you say several times that you e that judges should not be doing policy, they should be doinla and i guess i too agree with , and my concern is that it's actually not aea as it two and -- and that it appearshe in a lot of your answers that you sort of say, well, you come up with the best answer, it'a legal question. but i'm not so sure it'a legal question as opposed to is it the best under the sort of p regime.

and i think that there's a real sepa-of-powers danger here to the extent that you're saying that the judges are deciding whether or not this is something the agency should do or not, whether this is a lel estion or not. you know, there's the old saying th when you're a hammer, everything looks like a nail. and i'm concerned that judges are going to look at all of the questions related to a statute and call them legal if wd't have something like chevron that requires judges to be tuly thinking about their proper role relative to this issue. so how can you assuage my concern in that regard? martin: i think two points. i think the first point i would make on the distinction between

law and policy and h ty kind of maybe seem like they blur together, i think that -- that there are just so many instances in which a court can get a question that comes before it that maybe it involves an agency regime, but the agency hasn't acted yet. and i think the court in that circumstance just does its best. it doesn't have guidance, it doesn't have instructions from the agency. it does its and i think, when it does its best -- justice jaso but does it have to, mr. martinez? i mean, there are -- there other regimes in which a court is presented with a question and it identifies it as a policy question that it cannot answer. so what i'm saying is that it's not necessarily true that just because the court gets an issue, it automatically says, oh, this must be legal, i have to act. martinez: but, if -- if e court got -- just to go back to justice g's hypothetical, the question of what -- what is a dietarsulement and the court would absolutely givek the meaning to that. and i don't ink the court would think that what it's doing is makincy. justice jackson: well, let me give you a -- a particular example, all right? in the food and drug and cosmetic a suation, new drugs can be approved only if an adequate -- "adequate and well-controlled investigation" shows that theruwill have its attend -- intended effect. this term, what is an "adequate and well-controld investigation," is it your view that congress wanted the court

to decide what it means for a study to be adequate or ll-controlled? i mean, how would a court go abt determining whether that's something it's suppedo be doing or the agency is supposed to be doing? martinez: i think that the -- the urwould -- would do exactly the kind of analysis there that it would do if it had that exact same statute without the agency actin and i think what that means is the court would go in and it would do everything that -- that we all agree happen -- should haen under step one. i think the only difference is that if, aft dng that step one analysis, the court concludes that there's better view and a less better view, th the court should just go with the better view. justice jackn:ut when -- when does the court decide that this is not my call? martinez: well, i thk the -- justice jackson: i guess that's the part that's dropping out for me in your analysis. yojust say, you know, we do a step one analysis and then the urmakes the interpretive decision about what this means. and i es-- 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 because i think that's a core job --

justice jackson: so every statutory interpretation question is one ofhat a court can decide, you're saying? martinez: yes, and that -- justice jackson: there's never a statutory interpretation question that is one of policy that you see congress may have been intending the agency to answer? martinez: i think, by definition, if we're talking about interpreting a statute, then you're talking about a legal question in the same way that if you're talking about terpreting the constitution, then you have a constitutional quti. no one would say that you would apply deference there. justice jackson: 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 thaso of the experts have looked at this, some of the legal -- legal scholarslooked at this, is that they say, when there's an ambigui, ere are actually different kinds of ambiguit so you might have a situation in which there's a statutory term and it's ambiguous in the sense that there are several reonle meanings of what "stationary source" might mean, for exame,everal different ways that you could define that.

when you get down to that level of analysis, the question is, w's going to make the choice as between what those meanings e? and i hear you saying there might be a best chbut i guess, if we're talking about a li question, there are several reasonable meanings, why should trt be the one to make that determination? martinez: i -- justice jackson: and -- an couldn't we be in a world where congress intended for the agcy to actually decide which choice is best? martinez: thk where i -- where i would just sort of disagree is what you said at the end when you sort of assumed that it was a policy question. i woulju say that if it's -- if the question is the meaning of a stury term, that's an interpretive question that's a leestion and would be treated as a legal question if

you got th ect same question before the agency had acted. justice jackson:llight. let me ask you one more thing about practical implicatns so let's say it is, you know, a legal question, as you he analyzed, adequate and controlled investigations. if'm an agency and i'm trying to be responsible, how is this gog to work as a practical matter? is the agency going to go to court every time it gets one of these undefined terms in a atute and seek, you know, a declaratory judgment as to the meof "adequate and controlled" -- and "well-controlled investiga before it goes forward with its policy? martinezno justice jackson: all right. the agency can come up with its own definition and ilent respect to that, and -- and with every term undefined in a statute we're going to have lion about? think athe agency has to do is what everyone else has to do, which isryo figure out what the --hathe law means and 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, justice jackson: what do we do about the -- the chaos that we taed about in -- in the city of arlington case that comes from p having different courts, right? we have 11 different, you kn,

jurisdictions that have legal authority. so setng like the definition of "adequate and well-controlled investigations," you say the courts will sort it out. werst of all, it will take years perhaps for the courts to sortt t. what is the agency supposed to and different courts from all of these different jurisdictis could actually have a different view, as justice sotomayor pointed out, of what "adequate and well-controlled investig" are supposed to do, so -- means. so isn't it sort of impractical and chaotic to have a world in which every undefined term in a statute is subject to litigation if you're trying to govern? martinez: well, i -- i don't think it's impractil. i think that to the extent that justice kagan's questions rt of indicate that there's actually a relatively sml t of cases in which chevron's going to make a difference you're going to have that same problem with respect to the cases that maybe 20 years ago under a looser approach to evn wouldn't have gotten deference.

justice jackson: wouldn't you have more of a problem in a world in which we've gotten rid of chevron because it's going to give incentives to parties to raise legal issues that they wouldn't have raised before? martinez: i -- i don't think it's a problem to -- to have parties, if they think an agency is overstepping the boundaries and if they're right that -- justice jackson: no, i undersndbut, under a chevron regime, right, if that's the backgrndule, then you're going to have parties thinking twice befo gng down a litigation road with respect to a term because th're going to say, at the end of the day -- martinez: right. justice jackson: -- the agency has a reasonable interpretation, that's what the court's going to findso it's not any -- martinez: right. you're going to have parties agency action that is unlawful under the best interpretation of the atute because they know that when they go into court,

dge is not going to apply its independent neutral judgment and instead is going to tilt the scales and defer to the agency. justice jackson: thank you. martinez: and -- chief justice robes:hank you, counsel. general prelogar. oral argument of gen. prelogar: mr. chf stice, and may it please the court: the chevron framework is a bedrock prcie of administrative law with deep roots in this court's jurisprudence. overruling a precedent is never a all matter, but overruling a precedent as foundational as chevron should require a truly extraordinary justification, and titioners don't have one. they say thaarcle iii requires de novo review of all statutory interpretation questis. but that's flatly inconsistent with precedent going back to the rsll court and with the traditional limits on mandam jurisdiction, which governed most judicial review of executive action in the early they've said that chevron violates due process. but the application of deferential standards of review doesn't nstute impermissible bias. and they contend that the apa requires de novo review. but that theory is inconsistent

with the statute's story and the way it's been understood ever its enactment, including in the more than 70 cases in which th crt has relied on chevron to sustain an agency's interpreti. on top of all that, reliance interests in this context are at their apex. congressagcies, states, regulated parties, and the american public haveelied on chevron and the regulations upheer it to make important decisions that could be upended by ovrung that framework. thousands of judicial decisions sustaining aagcy's rulemaking or adjudication as reasonable would be open to challenge,ndhat profound disruption is especially unwarrand cause congress could modify or overrule the chevron framorat any time. congress has many times considered proposals to do so, but it's ner ken that step. instead, congress has legiat for decades with chevron as the background rule informing th degree of discretion that congress has chosen to confer on

federal agencies. just five years ago in kisor, this court declined similar calls to overrule the auederence doctrine based on many of the same flawed arguments th petitioners are making here. the court observed that it would be the rare overruling that would truce so much instability into so many areas of the law, all in one blow. overruling chevron would be an even greater and unwarranted shock to t lal system. i welcome the court's questions. ste thomas: general, section 706 of the apa was not mentied in chevron. how would you reconcile the requirements of -- on this -- on federal courts under 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 is inconsistent with the chevron framework because 706 doesn't prescribe a universal standard of review to govern

the nds of statutory interpretation questions. and the courts are interpreting statutes when they walk through thchron framework. first, there's althwork that the court does at step one of chevron. that is using the tools of interpretation to identify whether congress has spoken to the issue in the case and,f so, chevron said that's the end of the matter. so, in that sense, in a step one case, the courha of course, interpreted the statute. but, in a situation where, at e d of that interpretive process, the court is left wh no conclusion that it's actually able to ascertain that cones has spoken, then, in that circumstance, i think e ght interpretation of the statute is that congress left a gap or maybe createanmbiguity and simultaneously vested the agency with the important responsibility, pursuant to an express delegation, to administer that statute with the gutions that have the force of law.

and that's within -- tells the court what the relevant question of law that's left over to resolve is. it's whether the agency acted within the bounds that congress itself prescribed. so i don't think there's any fundamental incompatibility with section 706 and what chevron dictates about how to think about congress's delegations. justice sotoyo can i say, counsel -- general, i know plenty of statutes whe congress uses the word "de novo." it didn't here, coec in 706? general prelogar: that's correct. justice sotomayor: i thought it, and i do think it, would be volutionary to say that congress can't limit judicial reew aedpa is the quintseial question where we not only give deree to state court decisions, we say even if it got it wrong, ift dn't get it unreasonably wrong, we are supersinthe court's ability to declare a violation of the constiti and give relief. so i -- i -- i think it would be radical to say that congress couldn't implement evn. in fact, there is legislation to overrule chevron, requirinde novo review, that hasn't passed. there are statutes that basically don't -- say apply de novo review, correct?

general prelogar: yes. justice sotomayor:ndhere are statutes that require differential revieexicitly to legal questions, correct? general prelogar: yes. justice sotomayor: besides chevron? general prelogar justice sotomayor: all right. so now we have -- we're now at 706. and my - adversary, your opposing counsel, said that he didn't see that much disruption fr orruling chevron, that nobody would really bring up those old do you have a view on that? general prog: i think that my friend, it -- it might be easy for him to sath because

he is not going to be involved in the endless litigation that i think would resultf is court were to overrule chevron. i understand his point to that all of the holdings in ose cases will be secure because stare decisis will apply in tseontexts. but the important thing to realize is thainhose cases, as justice barrett's questions emphasized, e urt has decided that what the agency did was reasonable. the statute has essentially been interpreted to vest the agcyith discretion such that the agency's regulation is being he lawful or valid on the basis of reasonableness, and i think athat means that litigants will come out of the woodwork seekingo en those decisions and contending that they didn't acal address what they now say is the relevant question, not wheth the agency's interpretation is reasonable or whether the regulation can be upheld on that basis, but how the statu should be interpreted without agency's interpretation.o the 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, d i don't know whether it was 14 or 16 years, we have't time.d on chevron over that i -- i mean, have weveuled it in practice even if we've let the -- had to leave the lower courts to contueo grapple with it?

general prelogar: no, i don' think so, mr. chief justice. 's been eight years since this court relied on chevron atte two, t there's no case that my friends have been able to point tohere the court has said that a statute was ambiguous or left a gap and chevron would otherwise apply, but the court is n gng to defer in that circumstance. i think that that -- chief justice roberts: no. but, i mea tt's simply a function of the fact, when -- when we go through the work of trying to interpret what statute means, when we get to the end, that seems to be the right interpretation, and -- neral prelogar: i agree. those are step one holdings. so i -- so i think that they are consistent with the chevron framework. and the fact that this court 't had a step two case in recent years in no way indicates that in those cases where congress is, in fact, leaving ambis oraps, 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 footte, which is -- instructs that a court should use all the traditional tools of statutory interpretation before getting to step two. my concern about that or my confusion about that i iyou use all the traditional tools of statutory interpreti, you'll get an answer. and we know that because, in cases where d't have an agency involved and we use those same traditialools, we get an answer. so h dwe deal with footnote 9, which seems to suggest that you'll never get to step two if u llow footnote 9 by what it says? general prelog: what the court said in footnote 9 is that the court 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' express direction. juste vanaugh: do you think that's different from ascertaining what the statute means? general prelogar: i think that there can be revant difference and it touches on exactly what you were aski about in the context where a

court has to do it without an agency. in that circuman, i think it's absolutely right that the court is ultimelgoing to keep working and decide how it thinks t stute should best be administered, even in the circumstance where there might be an ambiguity or aapo fill. but what chevron recognizes is that there is a thd option available. it's not just congress spoke to the issue and it necessarily authorized what thagcy did or congress spoke to the issue and it prohibited what the agency did. there is aatory of cases and statutes out there where, really, using all of the tools, the best interpretation of the statute is that congress didn't relve it. it left that gap or ambiguity and coupled it with this express authorization to the agency to carry that statute into effect. this is congress and the agencies working together hand in hand to put into effect this -- justice kavanaugh: how would you fi ambiguity or how would you, if you were a judge, sa yes, this is ambiguous or no, that's not ambiguous? general prelogar: so i would draw on what the court said recently in sowhere it said a statute is ambiguous when the court haexusted the tools of interpretation and hasn't found a single right answer.

and i recognize, justice kavanaugh, and you have expressed these concer tt there are some limits of language here and it's not subject to precise mhetical quantification, but that's because i think it's a standard that inherently ques the application of judgment. and t end of the day, what the court should be looking for and asking itself is, did congress resolve this on do i have confidence that actually i've got it, i -i understand what congress meant to say in this statute and it meant to proscbe -- a uniform approach to stationary source, that it has to b plant-wide or it has to be a particular piece of equipment? t, in a circumstance like chevron itself with statiory source or some of the examples that the jtis have been talking about with reasonable or feasible, i thinyocan get to the end of that process and a judge could say: i tnk actually, the way -- the right way to understand this statute is that it's conferring discretion on the agency to take a range of permissible approaes justice kavanaugh: do you -- do you think it's possible for a judgtoay, the best reading of the statute is x, but i thi

it is ambiguous and, therefore, i'm going to defer to the agency, which has offered y? general prelogar: no, i think that that would probably -- justice kavanaugh: that can't happen? thk that happens all the time. general prelogar: well, i think that there are two different ways in whh urts use the term "best interpretation of the statute." so, if what you're asking me is, is there a world in which judge could go through the rigorous step one inquiry, apply all of the tools, and say, i think the's a best interpretation insofar as i think congress spoke tth issue, but the agency's interpretation is it cou b permissible, i recognize there's some doubt here, the aweis no. chevron does not require a court to ignore ats ascertained doing the step one inquiry. at that point, thaishe -- the judge's conclusion that congress actllspoke to the issue and chevron is totally clear about this, gi eect to it. but, if what you're asking me is, is there a world in which the court could get to the end of the step one inquiry, decide that congresha't spoken to the issue, and then say, if, in fact, the courts had been given the role of filling the gap, i would have done it differently, wod have exercised whatever discretion that congress lef open in this statute in a

different way, even looking to things like the overall objectives in the atory program as a whole, then yes, of course, in that circumstance, it's -- 's implementing congress's directives -- justice gorsuch: i mean, general -- geprelogar: -- for the 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 as a court. the other is: well, yeah, but i'm going to defer anyway given whatever considerations you want to throw into the ambiguity bucket. and that's exactly the problem that your friends on the other si sgest have persisted in the lower courts for 40 years and why meudges claim never

to have found an ambiguity and other eqllexcellent circuit judges have said they find them all the time. and it's also why, i don't know, yba dozen or more circuit judges have written asking us to overlehevron. and -- and -- and -- and -- and it also may be why one of your colleagues last year said i don't know what ambiguity means at this lectern. and should that be a clue that sothing needs to be fixed here, that even the federal governme athe podium can't answer the question what triggers ambigty you've given us two different alternatives today, and my lower court judges who just want to follow whatever we tellhe to do faithfully can't figure it out. general prelogar: so there's a lot packed in there, justice gorsuch, a iant to respond to each of your concerns. firs iould draw from chevron and kisor in defining what is an ambiguy. it is when a court has appli the tools of construction and can't ascertain that congress had an intent on the mte so i think that that is the core question for a court at step one of chevron, and tt's the circumstance, that would only ever move a court to applying deference sp two.

now i understand the concern you expressed that maybe lower courts are too reflexively finding that there's ambiguity at -- justice gorsuch: well, you gave us a second definition just a moment ago, and -- general prelogar: i was trying to -- to explain how i thought that sometimes -- justice gouc some -- yeah. general prelogar: -- in the case law "best interpretation" -- justice rsh: 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 -- general prelogar: i think that's really a difference -- justice gorsuch: -- your -- your friend -- general prelogar-- between step one and step two. justice gorsuch: -- your frid a year ago thought so and -- and -- and lower court judges thin so. general prelogar: so let me respd the concern -- justice gorsuch: so you agree -- general prelar-- about lower court judges. if you think that they are too readily finding ambiguity, i think the court could do in th case exactly what it did in kisor -- justice gorsuch: -- we done that, like -- like, 15im over the last eight or 10 years, say, rll really, really, go look at all the statutory tools, and yet ree have a case, two cases, one in which one court found ambiguy d went to step two and another one which -- well, i can't ll what it did, but there's a pretty good argument it --t ied to resolve it at step one. so, even in a case involving herrinfiermen and the

question whether they have to pafor government officials to be onboard their boats, whh may call for some expertise, but it doesn't haveucto do with fishing or fisheries, it has to do with paymen o-- of -- of goverent costs, we -- we -- lower court judges even heren is rather prosaic case can't figure out what chevron mes. genel prelogar: well, i do think that issuing a reminder to courts about the thoroughness -- justice gorsuch: another o general prelogar: -- that's necessary at step one could make a difference in thisonxt. and i can just share anecdotally on bof the government that we have canvassed the litigating components and looked at the lower court case law. and after kisor, lower courts granteau deference far less frequently, so i think it can matter and that lower courts can get atind of message if you're worried about it. t,ustice gorsuch, the other point to add here is that y are concerned that lower courts have different reactions in trying to implement chevron at step one, i think it'important to think about the alternative as well.

it's not as thoug ithis court overruled chevron, that's going to get rid of statutory gaps or ambiguities. justicgouch: no, it takes -- general prelogar: they will persist justice gorsuch: -- us back to skidmore, whh stice jackson, the most ardent of new dealers, wrote and that persted in this court for 40 years, more or less, afr e apa. and the world seemed to continue on its axis just fine. generaprogar: but it's not going to create greater predictability or stability or consistency across jge justice gorsuch: that's -- that's -- genel elogar: if anything, i think that -- justice gorsuch:- interesting thing to suggest, that chevron predicts stabilit when the whole point -- i didn't see you mention brand in your brief. but i -- i'm sorry to go back the, but -- my good friend, but brand x is a recipe for inabity, isn't it, because each new administration can come innd undo the work of a prior one. they're all reasonable. i mean, my gooes the american people elect them. of course, they're reasonable people. (laughr.

justice gorsuch: and -- and -- justice sotomayor: that may be the rs-- (laughter.) ulhave thought that chevron, 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 prelogar: -- and doesn't do. justice gorsuch: -- you do endorse brand x, the government does? general prelogarye i think it is a logical follow-oofhevron, and here is why. as brand x itself recognizes, if the court has found at step one that congress spoke to the su there's no room under brand x for the agency to reversthcourt or somehow change the underlying meaning of the statute.

instead, the statute has been interpreted at step onanwhat congress says goes. i's only in the category of step two cases where brand x comes into play, and in that circumstance, it's because the court in the prior case has understood the statute to leave a gap or an ambiguity for the agency to fill, considering a range of regulatory approaches. so, in that circumstance too, the meaning of the statute doesn't change. it remains a g f the agency to fill at time two, and if the agency is runninthugh all of the procedural hoops, which can be quite burdensome in this context, to change its regulatory approach, it is still acting consistently with the -- justice gorsuch: or not. general prelogar: -- with the discretion. justice gorsuch: or not if it -- if it issu ainterpretive rule without notice and comment or issues an adjudication. it may or may not be that buenme, right? so brand x also says that an agency can overturn a io judicial interpretation. and i saw that as a ciui judge with respect to an alien who was allowed into t cntry under the tenth circuit's understanding of the law. and the government come back and says, no, you have to overturn your precedent, tenth circuit, and he's not allowed in e untry. and we had to overrule our judicial precent do you think that's an appropriate understanding of the law too, that judicial precen, maybe even precedents of this court, can be overturned by agencies?

general prelogar: it depends on what the judicial precedent held. ift held at step one that that statute was clear, then of course not. but brand x doesn't require that result. if the prior precedent held that congress didn't resolve the issue and had delegated to the agency the responsibility and len administering it and filling the gap, including with the possibility of cngg regulatory approaches based on things like change -- ality --kavanaugh: but the reity is -- you -- you sayhe don't overrule chevron because it would be a shock to the system, but the reality of how this works is chroitself ushers in shocks to the system evy ur or eight years when a new adniration comes in, whether it's communications l or securities law or mpetition law or environmental law, and goes from pillar to post, like professor pierce wrote, and he had been a fan of chevron. now he's nobeuse he says it's a source of extreme instabilitinhe law. that's his -- hiphse. and it just seems like you jus pay attention to what happens wh a new administration comes

in at epa, at sec, at ftc, you name it. it's just massive change. that is at war with reliance. that inostability. and so i think to hold up stability and reliance is a little tough given just watching how it operates every four years. general prelogar: well, let me give you ae of different reactions to that. i think that that is a small sliverses or circumstances. and in the mine run case involving agency regulat agencies themselves build on those regulations as a foundation. there's no evidencth agencies are out there flip-flopping left and right or doing so on a whim. and it brings me to the important that to do -- justice kavanaugh: i don't thin they're -- i'm sorry to interrupt -- and i'll let you fin but i don't think they're doing it on a whim. i think they're doing it because they have disaeent with the policy of the prior administration and they're using what chevron geshem and what they can't get through congress

to do it themselves, self-help, and to do it themselves ilerally, which is completely inconsistent with bicameralism andrentment to get your policy objectives enacted into law. general prelogar: but, justice kavanah,he premise i think that's embedded in that question is t ia that congress had spoken to that issue. and in a circumstance where congress didn't resolve it and, in fact, wanted the agency to havelebility and a range of options, there's nothing inherently problematic or incompatible with our system of vernment to recognize that agencies can carry out tse directives. and just look at "stationary source." you know, that was a cirmsnce where the court said, applying all of the tools, congress didn't have a view on it. it didn'wa to foreclose a plant-wide definition. iti't want to foreclose an equipment-specific definition. and i think it was entirely rmissible for the expert agency to come in, take stk the entire situation, and, yes, take account of the policy goals of an incoming administration to better accountorhe interests of the regulated parties and give them flexibility. that's just part of congress's design. justice jackson: after all,

knowtaking into account the policy goals of the ne administration reflects a democratic structure where we have the new administration being elected by the people on the basis of certain p determinations. i guess my concern is i suppose judicial policymaking is v stable but precisely because we are not accountable to the people and have liti appointments. so, if we have gaps and ambiguities in statutes and the judiciary is coming in to fill em, i suppose we would have a -- something of a separation of powe opolicy -- excuse me -- separation of powers concern rat to judicial poling. am i wrong to be worried about that? generaprogar: no. i think that that concern is valid, and i think it's valid alg o separate dimensions, and one is to recognize that in these scenarios where w're at chevron step two, by definition, it's because the statute itself

doesn't supply an answer and the court c't ascertain that congress actually meant to resolve it. aninhat circumstance, it's entirely sensible for congress to give the issue to an agency when it is charged with administering the statute and, of necessity, is going to have to fill the gap alg e way. and congress 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 ys we've already characterized that as a question of law because the court was involved at step one ming the determination, and so it seems a little odd -- k i took this away from his presentation -- to suddenl when we're in a step two gap-filling world, now we're going to call it a policy question as opposed to a legal one? general prelogar: so i thinkou can still characterize it as a legal question while recognizing that in a circumstance, to borrow justice ka's words, where the law has run out and congress hn't actually spoken to the issue, the court, if it resoeshat issue, is -- is going to have to draw on a set of considerations to inform its

judgment. and i wouldn't call it pocymaking, but i do think it means that the court can't suggest that the answer it is giving is absolutely dictated on that presessue by congress because, by definition, we're in a world where congress didn't speak to it. so the court will have to take cot of a narrower range of circumstans,hings like the overarching statutory obctes, to try to fill in the gap. but the point is that when congress has left that g a charged the expert agency with the administration rol congress could have every expectation, and chevron says congress has the expectation, that thegey will fill the gap and that the courts will respect it within the bounds of reasonableness that always apply s coext. justice barrett: general prelogar, most schol statutory interpretation consider chevron to be an interpretive canon, much like clear statement rules, rule of lenity, judicially created. do you see chevron that way? and, if so, do you see it as different in kind from any of the other canons of interpretation that we apply? general prelogar: i dohi it is different. i don't conceive of it as a canon.

instead, i thinkhait is fundamentally rooted in -- in kind of setting the ground rules for how 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 gitimate reasons why congress cannot answer every question itself and why it will want to go hand-in-hand wi aagency by charging atgency with administering the statute. and in that circumstance, it's the role of the court to give effect tohat. so i think it's not just kind of an interpretive canon, but, rather, it really is grounded in the separation of powers. justice barrett: so is it dependent on a jgmt about what congress would want, one that would have to be empirically tested? general prelogar: so i don't think th 's getting into congress's subjective intent, althou, rtainly, i think the primary rationale that chevron veas its appraisal that this is, as an overarching matter, what congress would have intended when it comeso ps. and i don't mean to suggest that this means that congress thinks about ea a every gap it's creating in the moment. sotis i think it does and it's ear when it says set reasonable rates. it knows that it's not itself

prescribing what those rates will be in concrete rcumstances. it's leaving gaps andhegency has to fill it. but i think, even in the circumstance where congress doesn't know it's creating it at the time, someone's going to have to come in after the fact and fill it in, and it's either going to be the agency or it's going to be the court tht deference. and in that circumstance, i think the court appropriately recognized congrs uld want for the agency to do it. juice barrett: and how do we know -- this is -- goes ba t that question of what is the trigger of ambiguity that justicgouch was asking you. so think about a concrete example like psir, which the united states is on the other side, pending before the court, turning on what "and" joins together. general prelogar: we think that one's clear. i'll just put it out there. (laughter.) justice barrett: so let's put aside the question of whether, you know, t department of justice and the executive can get to deference in interpreting criminal ates. just erase that issue from the picte. is that the kind of question -- you owjudges below, very smart, very reasonable judges reached different conclusions

out what that word in the statuteea. is that the kind of eson brand x saying, well, it doesn't have to be the best, it just h to be, you know, a plausible reasonable one, is that the kind of statutory question that would trigger ambiguity and step two deference? general prelogar: so i think 's hard to speak in generalities about this. and i am struggling because, of course, the court haregnized that the department of justice does not get deference in the criminal context with respect to that particular su justice barrett: and it's that statutory structure in a communication would say to just try to address theverching question is that, you know, i think that it'going to be kind of a specific exercise in every case, and i can't say here is the formula i can give y t know when the statutory interpretation exercise at step one runs out and the court should feel like, i don't ha an answer, congress didn't supply one and when not. i think it's going to vary based on the statutory scheme. but, in each case, the court

should conduct that quy, make it a thorough inquiry and take account of all of the relevant aspects of interpretation that can bear on aning and show that congress, in fact, did resolve it. that is the role of the court, and 's the role of the court likewise to enforce congress's directions. justice barrett: so that kind of question, putting aside e government's position in pulsifer, so maybe -- that's an unfair question to ask you, but that kind of question you thinwod be the kind of question that could -- you know, let'take it outside of what does the word "and" mean. u know, a question of statutory structure, the placementf comma, you know, that kind of a thing, that is the kd question that, depending on the circumstance, could trigger step two deference? general prelogar: i think it conceivably could. now i want to hold open and knledge that the court has said there are certain types o statutory questions that don't fiwithin the chevron framework because there are kind of statute-specific reasons to think congress wasn'giving this question to the agency. i think the major questions doctrines species of that. i'd point to the adams fruit case as wellhe it was a judicial review provision and the ursaid this wasn't something for the agency to do.

but i think, in the mine run case, yes, and -- and to t extent you're saying, well, it feels odd for it to depend on a comma or to turn on the meaning of the word "and," still thk the inference holds because, in that context, congress, if it, in fact, has fthe ambiguity or the gap, recognizes that the agency is gointoave to come up with an 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 foresit. general prelogar: yes. so i think a court ultimately, it's able to ascertain that, although it's not peecy clear in the statute, you can figure out what congress intended, give effect to that, that's st o. at least congress knows that if it's going to unintenonly create ambiguities or gaps, chevron is the stable background rule. i's been the rule for 40 years. this court acknowledged in city arlington that congress, in fact, legislates againsthe background of that rule, and so it knows that wi athing it's doing that's unintentional, that will trigger if the

predicates are satisfied. justice kavanaugh: i'm sorry. can i ask you about the phra "law runs out." one way to think about that would be if you had the same statutory interpretati - chief justice roberts: go ahead and finish, sure. justice kavanaugh: same statutory interetion issue in a non-agency case, could the court deci i and if the answer is yes, the court uldecide it, then the laha't run out, so, therefore, you could ask yourself that question in an agency case. if this were a non-agency case, would we come to an answer on this case? and if so, you don't go to step two. what's wrong with that? and if that's not correct, because i don't thk u're going to agree with that -- w uld you define when the law runs out short of that which i think is a problem, as you said, hard to speak in generalities about this. that's the problem. general prelogar: yes. so you prediedy answer. i don't rethat it's only in a circumstance where the statute would be incapable of the court issuing 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 havtoo its level best.

but what i meant by the law running out is thaifhe court has walked through all of the tools of construction and interpretation and doesn't think that congress actually directly okto this issue, congress itself didn't resolve it, en the kinds of tools the court is ing to have to use will be ones that sound in things like the overarching statutory objectives that congress revealed as pa oits plan. and i thk at in a -- a chevron circumstance, the insight of the court's opinion therwathat the court doesn't have to go on and itself supply e swer when, actually, the best way to understand congrs having not resolved ielf was to make the primary decisionmaker or the person with the primary role in the first instance to be the agency. chieice roberts: thank you, counsel. justice thomas, anything further? justice thomas: just a -- a you said that in an exchange with justice sotomayor and me that congress could require some deference when it came to

questions stutory interpretation. and in 706, the reviewing court shall decide all relevant questions of law, inrpt constitutional andtatory provisions, eteta. could core also require deference on the part of the court with respect to constitutional issues? general prelogar: so i think that that would raise distinct issues in light of the dfent history that would be in play in that kind of hypothetical. there has not be longstanding history of courts deferring togeies when it comes to interpreting the constitution, so i think there could be uque article iii interest at stake there. but the history runs in precisely the opposite direction when it co statutory interpretation, where agencies themselves are charg wh administering it because, as we've tried to explain, chevron was not an innovatio iwas not something new. these principlesference go all the way ba to the very

founding years of the republic they're reflectedn ings like mandamus practice, where virtllall executive action for the first hundred years of our nations history was reviewed deferentially, and then was continued in a long line of cases from this court recognizing specicly that in a circumstance when you have the executive adniering the statute, congress could delegate and expect for those delegations to be respected. stice thomas: i think mandamus is a little bit differenan the other extraordinits in that you hadui a high hurdle before they became applicable, but we normally say that this court reviews questions of l de novo, and that includes statutory and constuonal. how would you distinguish that normal practice from what you're saying? neral prelogar: well, i think it is more nuanced than th. i certainly take the pnthat the court reviews many legal questions de novo, but that's not invariably t ce.

there can be issues that arise under diin statutes that set forth more deferential standards of review. aea a good example of that. there can be circumstances like mandamus where the nature ofhe action itself dictates a more deferential standard of vi. and i just don't think it would be accurate to say as a uniform, across-the-board matter, de novo is the standard that always and invariably applies. that's inconsistent with cases from this court that were cite in chevron, going back to the early 1800s, things like edwards' lessee versus darby, where the court itlfas recognizing that in a variety of contexts whereouave ambiguity in particular and you have an expert agency charged with adminteng 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 prelogaramguity exists when the court has exhausd e tools of interpretation and hasn't been able to arrive at confidence that there is a right answer th congress spoke to the

issue. juicalito: well, as justice kavanaugh's recent question presented, in cases that don't involve an agency, we never say we have exhausted all of our tools of interetion and we just ca't figure out what this means. so that would seem to suggest u never get to step two. general prelogar: but th 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 wou don't have an agency, the court can't give effecny delegation and, instead, the backup option in aittion where an agency would otherwise be available is tht has to do it, but i don't think that that undermines the very real on-the-ground possibility that congress is legislating and meaning to give the agency the gap. justice it well, i come back to the queioof your definition of ambiguity. and what i heard you say the first time was it's en we've used up all our tools and we can'fire out what it means,

then it's ambiguous. so do you want to provide an alternative definition? general prog: so i think maybe the best way to try to clarifwh the definition i'm trying to give is to use an example of something like a statutory term like "reasonabl" justice alito: -- really would just like a definition so that all the courts that have to apply the regime that you're advocating will be able topp it in the many different cases at come before them. general prelogar: the court gave thisefition in kisor five years ago with respect to auer deference, and i think it's the ghdefinition to use -- here as well. justice alito: what is it? general prelogar: when a court has used or exhausted thtos of interpretation and doesn't believe att reveals a right answer. in that circumstance, chevn said the right way to think about that statute -- the real right answer there is a deleti. justice alito: but again, i think you -- you're running into the problem that we never do that in cases that don't involve an agency. generaprogar: because in those cases -- justice alito: so i thk u've got to provide a different definition. now, what i heard you say at a couple of times during your gunt was it's when we can't

figure out what congress intended. is that what you mean to say? general prelogar: that is the inquiry that chevron prescribes that you should be -- and this is drawn from footnote 9, which is another formulation of thi u the tools of interpretation to see if they reveal congress's -- justice alito: what do you mean by what congress intended? do you mean to say that yoge to step two whenever we don't think that a majority of t house and a majority of the sena h an intent on the 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 legislators' intent. i think the court cvron used the word "congress," but you're really looking at the statute and wh t statute reveals about whether it's resolving an issue or not. justice alito: thank you. somayor?stice roberts: justice justice sotomayor: there hasn't been much discussion on why this is entitled to statutory -- to stare decisis considatn. there's beenn gument by

petitioners that it's not really a holding of a case; it's a thod only, and we have said in the past that a method that lower courts have to uses subject to change we can make without considering stare decisis. so could youddss that argument? general prelogar: yes. and i think that petitioners have pointed ttwrelevant types of cases that they suggest just measte decisis doesn't apply here or it applies in particularly weakened form. rs they say the court has sometimes changed the interpretive tools it consults. things like legislative history might have been gater favor, at least with some justices, before and maybe have fallen o ofavor later. but d't think that those provide a parallel at all, because the urhas never distilled those kinds of terpretive tools into a governing framework. it's never, for example, dictated to lower cotsou should be applying legislative history in a ces.

and so i don't think that it has the meind of roots in the type of binding governing amork that chevron has, which really has functioned in quite a different wawi respect to how you understand and implement congress's directives. the second case they've pointed to is pearson, which held, in the context the saucier rule, that that was entitled to aked stare decisis. but there the court said that is tirely a rule of internal judicial management about how courts decide issues and sequence their decisiomang process. it doesn't have owa-looking consequences, and it would be foolish to require congress to step in to fixt. there, too, i think that the considerations run in precisely the opposite direction here because chevron is not just a binding frk about how courts conduct their business; lso gives notice to the legislature about how its statutesbe construed. when f the court got this wrong chevron was decided and was wrout legislative intent, congress is there at the ready and isps the best part or

institution in government to be le to correct it and actually say, going forward, wh i wants the ground rules to be. and the final thing i would sa justice sotomayor, is that these were precisely thein of considerations that the court took io count in kisor in applying the strongest form of stare decisis to auer deference. riends have largely ignored kisor's analysis on this. this was the majority of the court where the court congress can step in, these deference decisions are balls th are lobbed into congress's court, and there are big reliance interests at stake here because there are dozens in that case, here thousands, decisions that could stand to be displaced and create chaos if chevron is overruled. so ihi that, from a stare decisis perspective, that precedent counts as precedent too. justice sotomayor: there -- and you answered tiance question, because one of the arguments on the other sidis no one has -- we, e first argument, that in how many years, and so nobody should have legitimate reliance interests. and the second argument against

reliance is that no one should have reliance on a wrong interpretation, basically. general prelogar: yes. ani ink that those kinds of arguments are inconsistent wit kisor and also incsient with what we know about what happens real world. there are agency regulations out there that have been on the books r cades. people have made investmt decisions on the basis of that. people have decided at contracts to enter into on the basis of that. states in cooperative federalism programs have designed and invested the resources into their share of that program. and all of that could be thrown into disarray if now it can be suect to renewed challenge on the basis that that regulation was upheld answering the wrong question, not looking at whether it conflicts with some purportedly better interpretation of the statute. chief ste roberts: justice kagan? justice kagan: tr's been a fair bit of talk, general, about how because you don't have a formula for sanghen there's a gap or ambiguity so that you go to step two or because judges may have different tendencies,

you know, which might be temperamental as much as anything else, to find ambiguity, because of that there's going to be some variabily. and it's hard to argue that it will be some variability, but could you talk about the variability the alternative scenario? geraprelogar: this is a really important point to focus bause, as i was trying to say earlier, in a world without chevn,t's not as though congress is always going to speak clearly and it won't leave gaps or ambiguities stutes, genuine ambiguities where you apply the toolanat the end you are left with no certainty about what congress was trying to do. and in that circumstance in a world without chevron, what 'll see is what justice alito was suggesting, the courts will have to go and try to answer the question. but there are 800 district crt judges around the ti, and i think it's fair to say they will likely he fferent takes about what to do in that circumstance and what to give greateweht to and how to ultimately fill the gap in administering the statute. and that's going to create problems for a couple of

fferent reasons. justice kagan: and those differences, to go back to justice alito's earlier question, i mean, those differences were part of the impetus for evn because those differences were looking awfullidlogical in nature, awllpartisan in nature. and chevron, all the empirical evidence suggests, dampens that kind of idealogical division between courts. there is good empirical evidence to support that juesave an easier time reaching common ground under t cvron framework and at least identifyg en they can agree that congress did not itself resoe issue, than they do when they have to ultimately go on and try to figure out what th are going to say is the bottom line of the best way to put the statute into opeti. so i think that that is rooted in chevron, and it just reflects as llhis uniformity concern, one of the bustifications for chevron and one of the reasons is inference of legislative intent is sound, because agencies can provide that kind of uniform rule for the nation, subject to the ground rules of course of judicial review under chevron. but i think thathelternative

world where there's no chevron is that therwi open up wide disputes among the lower courts, maybe tse mine-run statutory interpretation estions in complex programs, things like medicare and medicaid, and i think that could mean that regulated parties are subject to different rus different parts of the country. you lose the uniformity valu and it diminishes the force of thpotical accountability value. so i think congress would have veryooreason to think that agencies should do this and that courts should respect it within the bounds of reasonableness. >> justice gorsuch? >> you agree that courtsunr the apa, have to review questions of law involving the constitution de novo? neral prelogar: yes. i think there might be certain circumstances with respect to certain provisions where more deferential standards apply, but i certainly agree they don't defer to agencies. justice gorsuch:k. and you agree that, elsewhere in the law, when posed with questions of law, courts review those de novo, generly speaking? general prelogar: i think that, in many contexts, it's de novo.

certainly not in all contexts. justice gorsuch: thexales you gave, i think, were aedpa and mandamus, right? general prelogar: yes. i think those are two good examples of tuions where there are specifications of a standard of review that's more deferential. justice rsh: i wonder whether those have more to do with remedies, right? in a mandamus case, a court should say, or can say, what the law is. it just can't provide relief unless its conctn about the statute meaning is sufcitly clear. same thing in aedpa, that we require a heightened standard before relief gnted. same thing in sovereign immunity contexts we may think the statute says the vement's liable, but we impose a higher standard before we grant access to the fisc. general prelogar: so i acknowledge that i thi tt many of those doctrines do turn on limitations built into the writ or limitaonon remedies. i don't think it would be right, justice rsh, to say that in the mandamus cases, what courts were traditionally doing is saying let me put aside what the

executive offir d and just interpret the statute de novo and say at think the right answer is. and the right answer is the executive was violating the law, but not clearly outside the scope of the executive's authority. juice gorsuch: but he could do so just as we do in the qualified immunity context. there are two steps to that analysis. you can just go to the second one and resolve it and say, ah, 's not clear, so i can't provide a remedy. general elar: 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 article iii. i'm just asking abouthapa and what it means. general prelogar: yeah. so sorry if i misunderstood. i do think, though, that what the history owat the very least is there has been no fundamental rule in this country leading up to the apa's actment that you have to review all esons de novo. and that's where the history of the apa real mters. this court has several times recognized the apa was a restatement of existg dicial practice when it came to review of agency statuty interpretations. and as we' explained, there are really deep roots here, a

longinof precedent and history showing that courts will sometimes defer. just as gorsuch -- justice gorsuch: you do point out cases li eards' lessee and others where this court gave respect to e deral government's contemporaneous and uniform interpreti of the statute. and that's exactly what skidmore does. it gives respect to contemporaneous and uniform interpretations. but chevron, it doesn'matter whether it's contempones and uniform. it could be novel and t 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 stice gorsuch: well, i'm -- reading from them, but okay. general prelogar: there are dozens of them. so i acknowlgehat they use varying formulations, and maybe u can find some that look a little more like skidmore.

i thini ve a lot that look a whole lot like chevron -- justice gorsuch: let's say you don't. then what? general prelogar: well, i think i -- i just have to distehe ok at gray versus powell, look at nlrb versus -- these are cases inhe940s that were leading cases in administrative law. justice gorsuch: oh, i -- i put aside wh hpened in the '40s because it went back and forth anwod up in 10 you wanted to say it's a very old thing, and the old cases don't look anything like chron. they 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 gorsuch: if it -- if it's ntporaneous and if it's uniform, right? general prelogarani just want to add as well -- justice gorsuch: i -- i have another quesonthough. chevron, you emphasize, is -- value-neutral and it'll sometimes voindustries that are regulated and sometimes far the government. and i can certainly see that in scenarios where we talk about the fl-fp of administrations and new people leave -- come i

d replace others and -- and there's a lot of movemt om industry in and out of those agencies. i think george stigler talked about regulatory capture. i don't worry in a chevron regime about those people. they can take care of thsees, okay? there is political account, fine. thcases i saw routinely on the courts of appeals -- and i think this is what niggl aso many of the lower court judges -- are the miant, the veteran seeking his benefits, the social securi dability applicant, who have no power to influence agencies, who will never captu them, and whose interests ar not the sorts of things wch people vote, generally speaking. and, there, chevron is almost always, i didn't see a case cid,nd perhaps i missed one, where chevron wound up benefitting those kinds of peoples. and it seems to me that i's arguable, and, certainly, the

other side makes this gunt powerfully, that chevron has this disparate impact on ffent 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 acons to that. one is to say that i, of course, acknowledge that the way that chevron operates, ges effect to agency interpretations even in circumans where that might be oppositional, some of the categoesf individuals that you're identifying. but, ioes that, it does that in accordance with congress's intent and wishes becausev my friend agrees that there are certain make to agencies and certain gap-filling that agecan do i don'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 think about the prle the government always wins. general prelogar: there are a couple of different ways to commit the concern. it is not just in the exercise of discretion the court with insomething is fair and for the gap inha way, butather the core things that actually the reason it is fair is because i have a sense that congress spoke to this. i can determine a based on all of the tools. juic gorch it does not matter whetheroness actually thought about it, and that there are many instances where congress d not think about it. and in every one of those chevron's exploited against the individual and in favor of the vernment. general prelogar: i do not thin it is fair to treat that as an exploitation. congre h been aware. it can change chevron a time. it can displace if you think that is being used in a situation not warrte

justice roberts: justice kavanaugh. justice kavanaugh: i think the otr de's argument suggests the basic analytical concern a the heart of chevron is that it treats law as policy. and tt is antithetical to our constitutional structure and the rule of law. and that is why the footnote nine question is so important. because if you use e traditional tools in a nonagency case and got an answer that sues it is a statutory interpretation question. and you are saying, no, you can stop short of that in an agency casen me difficult to find -- define point and treat the rest of the case as a policy call forhexecutive branch. and that is treating what was a law question in an nonagency case as a policy question a agency case, and it is the same question. so it is transforming law into policy.

and that is very difcu, i think, to accept, if you accept the idea that a premise t rule of law is that e executive and the judiciary cannot just treat the laws passed by congsss mere expressions of policies that they can change. respond to that. general prelogar: i hear that concern. i think the way to are that is to readdress the principal in footnote nine. we agree that is an impoan principle. and to the extent there are agencies or lower ur that are effectively not givi t effect to congress's own enactments then a court can poce that and put into affect the footnote 9 principaln robust way with a rigorous analysis. that is the kind of instruction the court gaven iser. justice kavanaugh, i think it's not a different question in the agency context and nonagency context. what i undstd chevron to be

doing is figure out a core spoke to this issue. and if so, implement it. but hold open the possibility congress d n speak to the issue. and in that context,f ngress has given the agency this primary, critically important role to administer the statute, th should give fence if the agency stays within the bounds congress set. in an nonagency case you don't have the agency to relying on. you might end uphiing congress did not precisely speak to this issue, but what is the best that i can do tfire out how congress would have resolved it owh is the interpretation most consistent with the overall statutory scheme here? the right way to resolve this casecoress would know that courts are going to have to do that in a context without an agency. its still following the terms of the statute. i think it would be a fiction to suggest that what the court is doing there is following congress on explicit expression of the matter. justice kavanaugh a --

kavanaugh: i think it is important to distinguish statues th iolve legal questions of statutory interpretation. there are tons of statues, let's go back tohe.i. example, that explicitly cfe broad policy discretion on agencies. that is where statfa kicks in. and that is where we have alys been deferential. general prelogar: correct. justice kavanaugh: you acknowledge those are two different kinds of status. one statute that says for exple no one can catch more than 50 fish today. the next statute is basically the agency can define what a reasonable number of fish that can be caught in a reasonable day. the second statute confers broad policy discretion. do you aeehose are distinct? genel elogar: i think that one is a clear bestowal of discretion on the agency. i think it shows congress can legislate in a variety of ways. justice kavanaugh: so you agree congress can legislate broad policy discretion to aagcy

or grant explicitly through words like reasonabl appropriate? general prelogar: absolutely. i think the same question and sometimes come up inho context. coress has had to borrow from the chief juste's example, reasonable truck lengths, there isn't angey interpretation. the court is going to have to do its best. that is actually meaning to create a zone of discretion. justice kavanau: that is the state fa qstion as i would see it. two reuestions, i want to make sure the concernsf e other side get a chance to respond. some of this would be taking power and grant to get to the judiciary. there is a different conception of chevron that it is taking por from congress and shifting it to the executive and lo t executive in essence to unilaterally me licy without congress. and one of the concern historically from the beginning of this country was unchecked execute wer.

and you hearredents criticized all the time, whether it is roosevelt, reagan, bush or obama, criticized for exercing unchecked power. the concern is about chevron ushering in grsive assertions of unilateral exute power. and that is the concern that i think the otr de has. not about the judiciary taki power, but the judiciary having taking it from congress d shifted it tthexecutive contrary to her usual concerns. general elar: i disagree with the characterization that chevn rmits and congress is powerless to do anything. inhe first instance congress has to make the delegation to the agency and the court can enrcthat, and so congress knows to speak patiently --

capaciously when it wants to bestow discretion, to speak plainly it wantso in an agency in and resolve an issue itself. congress can change the rules of deference atpply in any context. there have been particular schemes where congress has said deference does not exist. do not apply or defer to this agency and not this other agency. congress is really in the driver atere. justice kavanaugh: this is a technical point. stresidents would veto or get rid of the cvr deference. that's the technical points. last questn,hich is there was talk about democratically elected political branches. i want to get your agreement on meing that i think you will agree on, the role of the judiciary historically under the constitution to policeheine between the legislurand the executive to me re that the executive is not operating as a king and is not operating outside the bounds of the thity granted to them by the legislature. you agree that is a proper judicial role? general prelogar: i agree with that, but i think chevron is

consistent with that. the court polices the executive at that e ensuring congress his own choices are put into operation. if further polices the executive at step two as the court said in iser, reasonableness 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 jackson. justice jackson: picking up where justice kavaugleft off, that's in the court have to not only police her branches, but itself as well? by that i mean to the extent that the other side raises the coern that, you know, they are treating law as policy. isn't there a concern that policy questions mighte treated as and that what chevron is doing is also helping the court to police its own determination in that regard? general elar: yes. and i think a way to illustrate iso think about a delegation like the deceptive practices as defined by the secretary.

if there were a statue this -- statute that said that, of course the court couldn't come in a s the secretary said what is a defective practice? i think there is a better way to think about the concept of what is deceptive. therefore, i am not going to overridehathe agency is done or not give any weight to it. congress has directed what you should do as a court is paying attention to what the secretary did. thsecretary was given that role in administration. obviously chevron applies 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, whiceally make congress a that? in other wordsiteems to me their argument is when we are policing this line bwe what is law and what is policy we should require congress to say thseetary gets to make this decision. and wh idoesn't, i guess we look at it as a legal question that the court can decide? general prelogar: i think that

argument would have more merit if there weren't much water der the bridge in the fact that the court explained when or atdentify this kind of delegation 40 years ago. petitioners talked about the reliance interest year an tried to diminish them. they did n talk about ngss's own interests and reliance on chevron. i ink at this juncture, to say that we are going to switch to deuland make congress a discretion is in part would be to run to the detriment of congress'own reasonable expectations with respect to afng. it also does not account for the category of cases where the language congress issi is infused with discretion. they agreed to terms like reasonableapopriate, necessary. those are terms that require greater applicatiotoill in the details. yocannot interpret them in a vacuum. so i don't understand how this idea of making congress say it coulfution in that kind of world. and in the final thing is congress hasaisomething very important here, the agency shall

administer the statue with regulations or adjudicatio that have the force of law that is part of the statue as --tate as well. justice jackson: you think that really carries a lot? i'veeard you focus on that many times when you are talking aboua tuation in which deference should be required. general prelog: exactly, congress in each and every statue where this is going to be applicable or chevron deference will be available is going to have made that judgment in t statute to give the agency that responsibili a role in implementing the stu. justiceackson: let me just ask about whether or not going to the is ambiguity, which has co up many times, whether orot the court could clarify when there is a gap or amb that allows for or requires the court to go to step two? and what i am thinking about is what i mentioned about previously with your friend on the other side, which is some scholars have actually entified different kinds of ambiguity.

son e scenario we have a statute that uses a broad term and that tcompasses a range of reasonable meanings. the e three or four different ways that could be reasonably, you kn, e meaning of stationary source, for example. but then there is sohe kind of ambiguity in which a statute can mean only one thing, eithe letter a or b perhaps as of the way language is put forward in thute. it is just unclear. ether it means a or b. i take the scholars to meath really in the former scenario is the one inhi we have a situation where chevron deference would be required. and could the court say something like let me clarify, i look at it as is reducing to a policy choice. that once we are in the world of

finding the kind of ambiguity where the a number of of making this determination, then it is just going to be a policy choice which one congress wanted in some sense or which entity congress wanted to make that decision. general prelogar: so i thin there certainly this cou cld provide more guidance to lower courts. and in particular idti the types of statutory issues and might clearly note discretion. there are going to be some easy calls on this. the types of situations where there might be mulplways to implement and signal there really is a zone of discreon and the agency should have flexibility. my only concern with going down the road of saying there is some fundamental difference with respect to particular terms that might beubct to only two possible ways to be implemented is that there is kind of an dls number of statues out statutes out there and all kinds of variees

i worry that it might side of certain contexwhe congress actually is comfortable with i the way of implementing that particular term, even if the are only two possibilities, and did in fact delegate that issue to the agency. so i wouldn't want some ki o 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 mean to say that the law means x, it takes that power away from courts and 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 version of the law that the courts themselves dootelieve is correct. do not believe is the best interpretation. neither congress nor this court can create aocine for -- or legislative statute that effeuas that reallocation of

interpretive authority. my friend on the other side that e rpose of chevron is to set the ground rules on how the different branches of government should operate. with respect, i think the cotitution says to ground rules and it makes clear the judicial power rest with the courts, not with agencs d certainly not with congress either. i think the apa reinforces that. the solicitor general tries to rescue or reconceptualize chevron by taking issue with our argument that under chevron if the cot inks the best inrptation is x it will have to apply y because t agency told it to. that is exactly wh cvron says. it tells the court that it has applied interpretation that the court itself would not choose. interptaon that the court itself does not think is best. the solicitor general also scbed chevron as applying in the formulation that hurt a lot,

it applies that the agency didn't resolve the question, an innocuous raisin what is really meant by that is chevron applies in cases of ambiguity. and ambiguity has always been understood as a situation where reasonable people can saee abt what the law means. that just broadens the scope of deference. ambiguities are all over the place. courts resolve ambiguities all the time, that is core to the interpretive function. there is no reason to think just because congress is accidentally left an ambiguity in the statute that what it is trying to do is have it resolved by policy decisions made by an agency. stice barrett ask aut the justification of chevron rather the intent justification is valid? i took my friend to concede the delegation ifiional. but nonetheless s we should apply it anyway as a presumption. i do not think you can get the miage that you need to get out of the intentional degion theory after you have conceded it is fictional.

the only reason it has weight is if it is auay what congress wanted to do. if congress did not want to delegate i then we should not be reconceptualizing how we think about statutory interpretation based on a fictionaprise. here there is no reason to think congress actually wanted to delegate picaking authority to agencies to resolve any ambiguity that arises in any statute admisted by the agency. i think the government solutions to that problem is to propose a clear statement requirement on congress. hey, you can just legislate more clearly. ambiguities are unintentna i do not think that works. i think thatou impose a massive clit tax that is unjustified. i think the precedents made ve clear they were talking about remedies in those cases at expressly say if we were interpreting these legal issues in a different conte wre we were not limited by the limits on mandamus remedies we would

apply our best and independent dgment. the solicitor general is looking atexthat requires us to interpret statutory provisions. and is saying that rule terprets statutory provisions d consistent with chevron as she describes as allocating interpretive authority to agencies. the statutes say courts get the interpretation. chevron ysgencies get interpretive authority and not court. these are inconsistent. finally with respe tthe course correction ideal or the amended approach, i would respectful sgest that you have tried to mend this and courseorct over and over. that is why we have a chevron doctrine. it is overlaid with a lot of bells and whistles. it is very hard to apply in practice. i inin the real world if you try to mend without ending it you are going to put a lot of pressure on the joquestion doctrine. people will be coming to this cot every become to theou 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 ndamental problem is chevron itself. interpretive authority belongs to the courts. if we have the best