doctrine or keep

chief justice roberts: we'll hear argument first this mni in case 22-1219, relentless versus the dept of commerce. mr. martinez. oral argument of roman martinez on behalf of the petitioners martinez: mr. chief justice, and may it please tht: for too long, chevron has distorted the dial process and undermined statutory interpretation. it should orruled for three reasons. first, chevron violates the constitution. articliiempowers judges to say what the law is. it requires them to int federal statutes using their be a independent judgment. chevron undermines that duty. it reall interpretive authority from courts to es, and it forces courts to adopt inferior agency construction are issued for political or policy reasons. in doing so, chevron blocks judges from serving as fl agents of congress. it mandates judicial bias and

encourages agency overreach. and by removing key ec on executive power, it threatens individuerty. chevron also violates the apa. the most straighrd reading of section 706 requires de novo review of legal questions. congress pstitutional and statutory interpretation on eql footing, and it required independent legal judgment as to bo as justice scalia wrote, the apa's text contemplates that courts, not agencies authoritatively resolve ambiguities in statutes. d, third, this court's only justification for chevron is the plied delegation theory, but that theory is a fiction. there's no rto think that congress intends every ambiguity in every agencute to give agencies an ongoing power to interpret d interpret federal law in ways that overdets best meaning. inhicase, the agency misinterpreted the msa to force ruling fishermen to pay up to 20 percent of their annual ofits to federal agents. e government says that even if all nine of you agree wi uthat the agency's construction is worse than ours, you should nonetheless de that construction and uphold their program unevron.

that's not consistent with the rule of law. if we have the best view of the atute, we should win this case. i welcome the court's questions. justomas: mr. martinez, how much deference is in tension with theudial role? martinez: i think it's very much in tension, your. justice thomas: no. how mu wld it require? i mean, your argument is that chevron deference is prtic. but how do we determine how much deference is too much deference? martinez: i think you've certainly crossed the line when you have a rule that says that 're going to allocate interpretive authority from from article iii courts to an agency. and so, when -- when you've got deference that amounts to which is what chevron deference is, then i you've -- you've crossed the line because what you' really done is -- justice thomas: i think what im trying -- what i'm asking is, how do we know whereheine is? we show deference. you -- there's skidmore deference. martinez: sure. justice thomasre deferential in fact finding, et

cetera. so i'm just trying to determine whether you're saying that i's not de novo review -- martinez: right. justice thomas: -- without any umptions or deference, then it's problematic. martinez: i --nk deference becomes problematic when it requires a judge to say that the law meanen really the judge thinks the law means y. i think skidmore deference is not prtic because it doesn't require that. skidmore deference essentially says -- and we would be very comfortable with skidmore -- at because the agency has a -- has an important role to play in the process, often the agency has helped draft the statute, the agency has knowledgef e policy context surrounding the statutanits implementation. of course, courts should pay special ultimately has to bring its experte bear in a way that's persuasive. and if the -- the court isn't persuasive, t court thinks that the law means ev though the agency thinks the law means y, then the court needs to go with the best interpretation of the statute, just like

it does in every other -- chief justice s: well -- martinez: -- area of statutory or constitutional -- chief justice roberts: -- let's -- martinez: -- interpretation. chief justice roberts: -- let's suppose the statute says the department of transportation will set length limits for trucks that are reasonable. martinez: right. chief justice roberts: is that a legal question for the court, or is that a policy question for the agency? martinez: i think that -- chief justice roberts: it' the -- the legal authority says th'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 statute would try to deternehe best meaning of the statute, and the best meaning of the ate there would be that -- that the use of the terre -- "reasonable" confers upon the agcyiscretion to choose among certain policy options. now that doesn't mean that the agency can just do whatever it wants because there are limits, and the court has to police that limits. michigan versus epa is a good example. congress used a broad term like pppriate" and the question was -- which is similar to "reasonabl" giving the agency a -- a range of discreti. but, at the same time, when the agency sai wl, we don't have to consider costs in figuring

out whethesothing is appropriate, the court said no, that, as lal matter, the best interpretation of the word "appropriate" in the context of this statute requires the agency to consider costs. chief justice roberts: wel what if the statute says that the agency can regulate truck -- truck length for vehicles that travel in interstate commerce and there's a question whether or not interstate commerce -- the -- the delatn for interstate commerce is satisfied when particular -- martinez: right. chief justice roberts: -- circumstances are present. martezi -- i think that that would be a case if you're -- if thcot were called upon to interpret what -- if the dispute s about whether -- what interstate commerce means, think that would be a classic legal question that would be a legal question for theou.

and i think it actuall highlights -- because interstate comrcis probably there because of the constitutional litions, it highlights the fact that, really, me rules should apply to interpreting constitutional- chief justice roberts: well, i mean -- martinez: -- provisions as statutes. chief justice roberts: -- you could imagine -- you could imagine situations where the intersta cmerce determination is peculiarly fact-bound, you know, truc transferring loads and -- at traneroints on the border. is that in interstate commerce for each o onot? and isn't the policy judgment of thagcy pertinent in that situation? martinezi ink, certainly, the policy judgment of the agcy is -- is pertinent in determining sort of the fact because the agency might be on the ground and understand the factual scenario. but i think there's -- an important legal component to that question, that in anyth context, like, for example, if you were interprinthe constitution, i think the court would -- would quite reasonably think it's its own job to interpret the constitutional emenof interstate commerce and would -- would say -- would give it its best meaning. and i think -- justice kagan: well, let me give you -- martinez: -- the same approach -- justice kagan: -- a few mo examples along the same lines, mr. martinez. is a new product designed to promote healthy cholesro levels a dietary supplement or a drug? martinez: sorry. can you give that one reime? justice kagan: a new product designed to promote healthy cholesterol levels, is it a ety supplement -- that's a statutory term -- martinez: ok. justice kagan:- a drug? martinez: i -- i think it would depend on -- on the t original understanding of the

text of thattate in -- read in context. justice kagan: you -- you want the -- martinez: and i think a's a -- a legal eson for a court. justice kagan: -- you think that the court shldetermine whether this new product is a diarsupplement or a drug without giving deference to the agency, erit is not clear fr the text of the statute or from using any traditional methods of statutory interpretation whether, in fact, the new product is a dietary supplement or a drug? martinez: i -- ste kagan: you want the courts to decide that? martinez: justice kagan, i think with respect to that question or any heof the -- a legal question, i think what the court would do, there -- there are going to be hard questions, but i think the court would bring all the traditional tools of construction to bear -- justice kagan: they do that -- mainez: -- and would -- justice kagan: -- under chevn. they -- you know, we have made clear all the traditional tools, if you can find an answer, that is the answer. so the court is very rarely in the siatn in which you're talking where it thinks the law means aninstead it says y.

if it thinks it means x, under chevron, as we've understood it and made cle a reigned it in a little bit over these last few ars, it's supposed to say x. but sometimes law runs out. memes there's a gap. sometimes there's a genuine ambiguity. and i -- i don't know. inhacase, 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 think a couple things. first of all, i don't ink chevron is a doctrine that only applies to tie-breaker 550 scenarios. it's never been understood at way. you know, justice scal ihis famous article in 1989 -- justice kagan: it's not a tie-breaker. there are just some times where you lookt statute and the most honest reading is that there's -- there's -- there's a gap there -- martinez: but -- justice kagan: -- because of the mi of language, because of the limits of our ability to predict e ture.

and so who fills thaga martinez: but i -- i guess what i would sort of push back on is i don't think there's a gaif the court looks at the statute and thinks, hey, this is a really hard case, it's a really close statute. fifty-two percent likely, i think -- you kno i have 52 percent confidence that x is right justice kagan: i'll give you -- martinez: -- 48 percent like -- justice kagan: -- i'll give you another one, mr. martinez. does the term "power production" -- i'm just -- these are real cases. martinez: right. justice kagan: these are - these are prototypical chevron cases. martinez: but -- justice kagan: does the term "power production capacity" refer to ac power that is sent out to the electric grid or dc power that's produced by a solar panel? martinez: i think same answer as the first hythical. but let me try to -- let me t tsort of give you a different framework for thinking about th pblem. let's imagine that that statute came to a court beren agency had ev aed in the first place. what would a court do? would a court look at the ate -- a statutory term like that that's a hard -- presents a ha interpretive question and say: ll, this is hard, it's sort of 52/48, it's kind of cle. i think the law has run out and i'm just not going to be ae decide this. i think the court would go with

the stnterpretation. justice kagan: the -- the -- the -- the court might -- the court in that case would haveo ke a choice. but, you see, here, the court can say, you kw,he best option is to listen carefully and to defer if it's asonable and if it's consistent with everything that we kw at congress has said, to defer to people who actually know this about these things -- martin: t -- justice kagan: -- to -- you know, to people who understa the way particular questions fit with aroader statutory and regulatory scheme, to people who have understanding of the policiesf the facts that led to this. i'll ge u a third example. martinez: can i respond? justice kagan: andwill be my last one, mr. martinez, and it'gog to be fairest one because it's going to be one you know about, which is chevron. as a stationary source ith clean air act, does it refer to whole plants or to each pollution-emitting device within the plant? martinez: we think that the desi in chevron was -- reflected the best

interpretaonith much respect to justice gorsuch's mother's epa. we think that that was the best interpretation. but b can i just go back and i think what you described eaieabout listening to the agency and taking into account all those things, our -- our rule would allow that. a's skidmore. i think the only difference between our rulend- and the skid- -- what -- the skidmore rt of approach and the chevron approach is that after lisni to the agency's explanation of all the things that yosa, if the court isn't persuaded by the agency that the agen's interpretation is correct, chevron would say you still have to go with the agency. and that's just like a dramatic thing. justtomayor: 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 suggested if there were two ausible meanings, you went with the agency meaning. i think we've gone far beyond that. it h tbe two reasonable meanings. assuming -- you -- you make an assumption that there is a best answer. i don't know how you can say

the's a best answer when justices of this court routinely disagreende routinely disagree at 5/4. is the best answer simply a majority answer? i don't think so. martinez: but, your honor, if -- justice sotomayor: i hpe when i dissent, think the others got it wrong. [laughr] justice sotomar:nd they often do. [laughter] justice sotomayor: but putting at aside -- but putting that aside, in those situatio, there are two plausible -- not nearly plausible. there are two best awe. and the quti is who makes the choice or helps you make the choice. and if t crt can -- can disagree reasonably and comes to that tie-break pnt, and it could be 51/49, it could be 52/53,f 's that close, why shldn't the person with all of the qualities you spoke about, the entity with all of the qualities, expertise, experience, on-the-ground execution, kwlge of consequences, why shouldn't deference be given to that entity?

martinezjuice sotomayor, i think your explanation of biity just now just proves the problem with chevron because i think what you said is that stutory case in which thea members of the court disagree ne another, that -- that's essentially sayi 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 describ i if you -- you work hard to figure out a statutory problem. you don't sa o it's difficult. oh, there are two interpretations. oh, you knownoeverybody agrees with this in three seconds flat. you don't say that. you do everything you do, look at the text, looategislative history if you believe in legislative history. look at context.

look at every tool you can, and stl ere are places where we don't know whether this drug is a -- is a -- is a -- whether th pduct is a drug or a dietary supplement, and it's best to defer to people who do know, who have d ng experience on the ground, who have seen a thousand of thes kinds of situations. and, you know, judges should knowhathey don't know. martinez: i -- i agree with that, juste gan. but, with -- with all due reec i -- i think i understood justice sotomayor to be saying that whenever judge -- justices of this court disagree about the best meaning of the statute, because, obvi everyone on the court is reasonable, that that there's an ambiguity. if that's the which i think was the implication of the question, then that can't be wrong. that's much broader than -- justice sotomayor: that wasn't -- martinez: -- step one. justice sotomayor: -- my imicion. 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 clr answer. martinez: -- i -- i think you can can come up witho ear answer because some -- justice sotomayor: or bt answer. martinez: -- because some statutes are hard. but i think you can come up with a best answer, and -- and the reason i think that is because

-- justice sotomayor: best only because a majority agrees? justice jackso b -- martinez: no, no, because -- because, if you had the same statute with the same inrpretive question posed to you without the agency having acted, i don't think u uld say there's no answer here. i think you would choose t best answer. justice gorsuch: i mean, mr. martinez -- justice jackson: but, mr. martinez -- justice gorsuch: -- i guess i'm struggling to understand what -- what -- what's at stake given the questions because, as i understand justice kagan's hypotheticals, which are -- are hard ones, that one oponould be to say it's ambiguous and, therefore, the agey ways wins. that -- that's what i understood chevron to mean at least coming in here today. another woulbeo listen carefully to both sides and provide special weight under skidmore to a coequal branch of vernment's views about the law, which one would think we would do anyway, and that they would have- have -- be considered great weight in arriving at the best answer and that that's what a cot uld do if -- if there were no interpretive principle

advanced by the executive branch, if there hadn't been some sort of rule or adjudication. is that -- is th crect? martinez: i -- i think that's correct. and i thk e difference between the skidmore approach that you just laidutnd the chevron approach is just, at the end t day, once you've considered all the expertise and althinformation the agency has to bear -- justice gorsuch: who decides? martinez: who decides? who -- ithjudge persuaded or not persuaded? justice gorsuch: is the judge persuaded at the end of the day, with proper deference given to a coequal bran ogovernment, or does the judge abdicate that reonbility and say automatically whatever the agency ss ns? martinez: right, even -- even if the judge is not persuaded. justice jackson: but, mr. martinez -- ice rsuch: 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, when -- when a judge says here's the law, it's settled, we're done, right?

it can be appealed, but at the end of the day, if the supreme court of the united stes upholds that interpretation, we're finished. whereas, under the chevron approach, are we finhe martinez: no. justice gorsuch: what happens? martinez: i think the agency can overrule what e urt said. the agency can overrule what itself said. i think th's a very strange thing, that in every other area of statutory interpretation, we understand the law to have one fid meaning and the goal is to try to figure out that fixed meaning, but chevron by design eas this world in which the agency is -- is -- because there's is zone of discretion, the -- the agency and ambiguity, e agency can kind of flip-flop and then force courts to flip-flop with them. justice gorsuch: and i'm struck tt score by the brand x case, which involved broadband, in whi ts court said, okay, agency, you automatically win th respect to one interpretation of the bush administration, i beeve it was, and then, of course, the next administration came back and proposed an opposite rule. rtez: right. justice gorsuch: and then the next administration came back and flipped it back os to the first. and as i understand it, the present administration is thinking aboutoi back to where --

martinez: that's -- that -- th's exactly right. justice gorsuch: -- where we started. martinez: that's exactly right, justice gorsuch, and i think it -- it plays up the real prle chevron really is a reliance-destroying doctrine. imagine if you're a person or a regulated entity ando're trying to figure out what the law is. you should be able to rely on the best interpretioof the law and not have to, you know, check the -- the c.f.r. evy couple years to see if the law has somehow changed, even though congress hasn't acted. justice gouc and that's the delta between skidmore and chevron? martin: think -- i think that's right. i meanskmore, i think, would allow for -- for courts to give meangf weight and consideration to -- to rssive opinions by agencies. the only thing skidmore doesn't is require a court to give up its -- its interpretive -- ultimate interpretive say a der to an interpretation that is not persuasive. justice gorsuch: thank you. justice jackson: mr. martinez, what -- what i'm stuck on is what seems to be an assumption in your argument that every questi posed with respect to interpreting -- interpreting a statute is a legaon

i see chevron asoi the very important work of helping courts stay away from polyming, and so i -- i'd like for you to sort of think of ithrgh that lens and help me understand why, if away with chevron's framework, we won't have a probleofourts actually making a policy decision. so justi kan gave you a number of examples, and i think the reason why those examples arearor why they're ambiguous or whatever is because, at bott they're not asking legal qutions; they're asking policy questions. how is it that, yokn, stationary source is to be fined? that's not really a legal question. i mean, there could be several reasonable ws interpreting that. and at the end of the y, think the way i've been thinking ouchevron is congress has given that policy choice to the agen. and my concernat if we take away something like chevro t court will then

suddenly become a policymaker by majority rule or not, making policy determinations. so how can we avoith? martinez: so we agree, obviously, that -- that courts should not be in the business of policymang and i think the whole enterprise of statutory interpretation, when ppey understood, is -- is designed to take courts out of policymaking because what the court is trying to do is -- is act as a faithful agent of what congress hasonand find the best -- justice jackson: but isn't that -- mart-- interpretation. justice jackson: -- isn't that what chevron does? me, isn't chevron, step one, even in this very case, asking the question, one, has congress made that li determination? so, for example, here, the question is whetheot monitors on the boats have to be pa f by the owner of the boat. i see that as a policy question. congress could have said yes or no. there's nothing about law really inherently in the question of should the monitors on the boats paid for by the owners or the government. so step one is has congress in the ate answered that

question. when we say no, everybody agrees th's not in the statute, then we say the agency can make determination so long y do so in a reasonable way. so, for example, here, the question is whether or not monitors on the boats have tbe paid for by the owner of the boat. i see that as a policy question. congress could have said y no. there's nothing about law really inherently in thqution of should the monitors on the boats be paid for by the oor the government. so step one is has congress in the statute answered that question. when we say no, everybody agrees that'not in the statute, then determination so long as they do so in a reasonable way. and the -- and courts f reasonableness, but whether or not the monitors a pd for is not really a legal question.

martinez: i think the question of whether or not the law allows the agencyo to force the monitors to be paid for by private industry is absolutely a legal question. e with you that when congress -- justice jackson: but isn't at the same question as to whether or not -- i't that just another way of saying, can this policy determinae made by martinez: no, i don't think so. i think therence is when the -- when the -- when the policymaker, whether it's congress or the agency, sitting there and trying to figure out, like, what the best policy is, would the world be a better place if industry has to pay for these monitors or not, that's absolutely a policy question. justice jackson: ok. that's the question -- martinez: but -- but -- justice ckn: -- right? martinez: no, because, when it comes to a court, the court is not figuring out what the best ing for the world is. the court is figuring out, well, wh d congress actually want here. it's -- justice jackson: but i guess i'm afraid that the court really i figuring out what the best thing in the world is if we -- martinez: but -- but -- justice jackson: -- look at it througyo lens, right, because, if the answer to the question is, youno should -- shld they pay for it or not, the agency has a view, and unless we're deferring to that

view, i don't see why we aren't overriding the -- the agencys policy prerogative. martinez: the -- the question that the court should be answering is notd agency -- should industry pay for the monitors. the on that the court congress require or allow agent -- stry to be forced to pay for the monitors? and that's a very different question. that's the different between law and policymaking. and i think the whole assumption and the whole understanding of atutory 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. they' -they're serving as neutral umpires. e're not players on the field. justice jackson: all right. so how does that -- justice barrett: mr. martinez -- justice jackson: -- pl o under your interpretation -- so, here, what -- what is the question we're supposed to be answering? martinez: the question you're supposed to be answering is, did -- does this statute require -- has congreuired -- either required the -- the monito tbe paid for by dury, or has it given the that decision?hority to make d i don't think -- i think that is a legal -- both of those versions of that queioare legal questions, and the answer is no. justice barrett: mr. martinez, can i ask you qution about

the line between law and policy? and i want to ask you in the context of o ojustice kagan's examples, the dietary supplement or drug wherishe line between something that would be then subject to arbitrary and capricious review ansothing that's a question of law? because i'm just wondering whether we could say that the definition of dietary supplement or drug might beomhing that's a question of statutory interpretation in the context of the statute, but which category any one thing fell in might be question of policy for the agency. martinez: ght. i -- justice barrett: is that possible? martinez: -- i -- i think that's i think that would be more of a -- of a, you know, application of law to fact or a factual question. but i think the core question of, like, you know, what is the meaning of dietary supplement, and i rg what the other questions.e was, those are legal justice barrett: but whether the rtular cholesterol-reducing drug fell -- martinez: right. justice barrett: -- in one category or the he i mean, you know -- martinez: that -- that would be a -- justice barrett: -- presumably, that depen ohow does this function? what is the mechanism by which it decreases cholesterol? martinez: i -- i think that' right. but i think it's -- i do think it is important to make -- retain the sort of legal component of that question and -- and make sure that the courts

have authority over that legal component. justice barrett: i want to ask you something ouyour article iii argument too. you know, justice thassked you what the line is. and, you know, courts all of the time make judgments about whether things are reasonable. but i -- i don't understand you to be disagreeing that things like whether something -- that an agency could be tasked th deciding what was the most feasible, most useful, most reasonable. well, courts could do that too. so is that a delegation of judicialow that would offend article iii in your view, to give those kin o-- martinez: no, i think -- justice barrett: -- decisions to an agency? martinez: -- i think the way to think about those kinds of -- of statutory provisions we that the best interpretation of the statute, given the nat the word "reasonable" in context, is to confer a ra discretion on the agency. and so i think a courtn at case -- if -- if the agency is operating within the range of discretion, that's arbitry d capricious review. if the agency is sort of operating at the edges, you have to figure out where the guardrails are. that'the legal question. so, if the -- if the statute says, you know, the agency can

cked, blue, or green, then the choice among those three options f the agency. but, if you have a legal question like, oh, does pink count as red, tha's a legal question. chief justice roberts: tnk you, mr. martinez. how much of an actual question on the ground is this? i saw some study that said we haven'relied on chevron for 14 years. and judge kethledge has itn -- he's been a judge for 10 years. he's never invoked chevron step two. you know, dg are used to deciding things, and when they get ou to doing it, they tend to think what they've come up with is not only the best answer, but it's the only answer. [laughter] and -- and i just wonder how often this comes up? martinez: i think it comes up a lot, your honor. and this court hasn't relied on chevron since 2016, but the lower courts sllave to apply it. and i think these two cases, the -- t t that you're going to hear this morning, sort of show what happens when -- when courts are applying ts doctrine because they're -- they're essentially gti to a

point where they don't really have to figure out the best answer and they can just -- you know, instead of asking what does the statute mean, they can ask a differenthshold question, which is, is this statute ambiguous enough that -- that we should just, you know, let the agency do the work for us? chief justice roberts:ha you. justice thomas? justice alito? justice alito: mr.arnez, would you agree that one of the reasons why chevron was originally so polawas concern that judges were allowing tirolicy views, consciously or unconsciously, to -- t--o influence their interpretation of the statutes in question? martinez: yes. justice alito: why was that fear unfounded? why do you think now that the fear was unfounded? martinez: well, i think three things. first of all, i think the fear has -- 's reasonable to think the fear has diminished over tim regardless of what it was then, in large part due toheery salutary developments in the way

that this court and the lower courts gerly now think about statutory construction. in the old days, treas a lot of reliance on legislative historanon sort of more fr-form analysis that i think made it easier for policy considerations to infect the judicial decision-making process. but this court has now made clear that, you kn, ally, we should be text-focused, we should bfosed on faithful agency to congss so i think that is one difference. i think another difference is cour n have become more appreciative of the fact that we're not just talking about, you know, judicial -- rules of, like, judicially made common law about how to interpret state we have the apa here. justice scalia was b defender of chevron in its original incarnation but, over time, came to ale that the apa had text that actually bore on this question. and i think, when you're enforcing that text, you come to the same place as our article iiarment, which is that courts have to exercise independent judgment. justice alito: do you thk at the canons of interpretation that we have now and all of the other tools that we ven our statutory interpretation toolkit are like the egmmachine and so we have these statutes and

ey're sort of written in code and we run them through e enigma machine and, abra cadabra, we have the best interpretati? do you really think that's how it works? martinezi i think that what this court does with respect to the normal canons of construction is it's used the -- 's -- it's generated those canons as rough rules of thu to help guide the interpretive process because, if the court approximate the best original meaning of the statute, especially -- and then there's some canons th -that sort of are not purely textual canons but that sort of are informed by constitial -- foundational constitutional values. thk chevron's very different from that because, with chro you're doing something -- you're not trying to find the best interpretation anymore. you're, in fact, agreeing that you have to impose the not-best inrptation because you have to defer. and so, unlike all the other canons, chrois the only one

that says to courts, you can stop doing your normal interpretive function and we're going to allocate that interpretive function outside of article iii. justice alito: thank you. chief justice roberts: justi sotomayor? justice sotomayor: i counted over, i think -- not i- e solicitor general or someone has given us a list 7cases in which the court has used the chevn proach and interpreted what the law was. your overruling chevron puts question to all those 77 cases. martinez: no, your honor, i think -- justice sotomayor: no, your out is it's stare decisis now? martinez: gh so -- justice sotomayor: until the agens something else? and then people can cok because it's not stare decisis anymore? martinez: so i think, with respect toheffects of -- of applying normal rules of cotrtion here instead of chevron, i'd say two things. first a, the 70 holdings or whatever, the bottom-line holdings in those cases would

get stare decisis, so eyould not be undermined. of the law with respect to that. justice sotomayor: i d't once you have a new approach, i'm not sure. martinez: i -- justice sotomayo b let me move on to the second part of my question, which is t ces that come to the court are usually thha cases. so you say in the last 14 years we' barely referenced chevron. and do you know what the breakup is how often have we consistently upheld the agency inho cases? martinez: in -- in the cases since 2016? justice sotomayor: yes. martinez: -- don't know the track record on it, your honor. justice toyor: i know, it's interesting. martinezbui will say, i mean, there -- there's some ominent -- justice sotomayor: but -- but putting that aside wree disagree, do you suggest that our disagreentas based on ignoring of chevron or us doing exactly what youaye should be doing, which is to say this is outside the bounds of reasonableness or around the guardrai bause you're going tse of plausible -- martinez: i -- justice sotomayor: -- of

reasonable interpretation? martinez: -- i think the court in cases like the eran hospital case or the digital realty case, which i think are two really good recent examples, the cot animously overturns the lower court decision because it does exactly the right thing. it does all the canons at st one and it -- and it essentially says, like, e atute is clear. but i think what those 9-0 decisions show is how confusing and unworkable chevron is because thlor courts, you know, purported to do or didn't really do what they were pped to do and they came to the opposite conclusion, not necessarily because theyhoht that -- that your interpretatin't the best but rather because it thought that the statute was ambiguous enoughhait required deference. and so it's like a threshold -- justice sotomayor: counsel, at judgment is inherent in every question. i meanth -- that kind of problem is just a part not just of judging but of decision-making, period, of li. and so it's not clear to me that the fact that thermabe some ambiguity about what -- how much ambiguity,heuestion that

justice thomas asked, it doesn't take away from the basic premise of chevron, which is a reasab interpretation within the bounds of -- of common statutory interpretati suld be given deference. martinez: right. but i do thi t ambiguity trigger introduces a whole kind of threshold question that's very hd apply neutrally. i anyou have great judges, judge kethledge, i think, was referenced. he doesn't -- he never found case that required him to go past step one. just silberman, another great judge, said that imo cases he thought the statute was ambiguous. and if there's that much disagreement, then i think that's a sign that chevron really isn't workable. and this court has tried to rein in chevron in numerous ways, b i think that what all of those efforts show is that you kind of need a secret decoder ring to figure out what the law means under this court's approach. you have to do step zero. you have to apply need. then youavto do a robust step one inquiry, taking into acunfootnote 9 and taking into account, you know, how ch

biguity is needed. in this -- in the d.c. circuit, you have to do step one and a half, where you have to figure out whether the agency recognized that the statute was ambiguous. under kisor, there's maybe a step three that says you turn off deference when the agency's operating outside of ia of expertise. and then overlying all that you've got the major questions doctrine. and so i think, if -- if -- if that's kind of at- justice sotomayor: well, that's the court's creati. martinez: right. but it's the court'crtion because it's trying to solve the fundamental proble wch is that chevron is doing something very weird. it'tang interpretive authority that belongs to courts and 's giving it to agencies. so all of these bells and whistles are efforts to kind of awt back to address the symptoms, but i think it'time for the court to address the disease, the underlying probm, which is chevron itsf. chief justice roberts: justice kagan? stice kagan: mr. martinez, i want you to think of this from congress's perspective. so w thinking what is the next big piece of legislation the horizon and who knows, don't ve a crystal ball, but i'm going to say -- i'm going to ess that it's artificial intelligence.

so let's imagine congress enacts an artificial inllence bill and it has all kinds of delegations, maybe it creates an agency for the purpose or maybe it uses existing agencies and it has all kinds of delegations to that agency or agencies about how to regulate artificial inlligence so that this nation can capture the -- the -th opportunities but also meet the challenges of that. and then, just by the nature of things and especially the nature of the subject, there are going to be all kinds of places where, although there's not an explit delegation, congress has in effect left a gap. it has created an ambiguity. and what congress is thinking is, do we wantous to fill that gap, or do we want an agency tfi that gap? when the normal techniques of legal interpretation he n out, on the matter of artificial intelligence, what does congress want, mr. martinez

martinez: i think congress wants courts to interpret the best interpreti of their -- justice kagan: congress doesn't know -- kagan: -- apply the best interpretation -- juice kagan: -- what that answer means. congre kws that there are going to be gaps because ngss can hardly see a week in the future with respect t this subject, let alone a year or a decade in the future. and congress knows that there are going to be things that it writes that it's just not going to be clear how this will apply or what it will mean with respect to countless factual situations that this country will have to address. does the congress want this court to decide those questions, li-laden questions, of artificial intelligence? martinez: i -- i don't think congress wants the court to do policy. i think congressants the court to do its ordinary function, which is interpret the law and figure- d apply the best understanding of the law. and i think that tlication of your question is that this is some sort of intenon delegation by congress that chevron deference is -- is thi implicit delegation.

but i -- i don't think that's right. i think many people, including a very insigfuarticle that -- that you wrote 20 years ago, kelear that this is fictional. this igation of a fiction. justice kagan: fictional just means -- is like academic speak for presumed. werendeed presuming congressional intent. the congressional intent, you know, the -- the delegation th's not explicit on the face of this statute, but what w're thinking is congress knows things about different institutions, about what they know, about what they' competent with respect to, and congress knows that isourt and lower courts are not competent with respect to deciding all the questions about ai that are going to come up in the future. d what congress wants, we presume, is for people who actually know about ai to decide those questions. and also, those same people who know about ai e ople who, to some degree in some way, are accountable to the political process. they have constituencies. they have fact-finding abits. they are obligated to go conlt with people.

ey report to a president, who needs to be elected. in all kinds of ways, both with -- with respect to expertise and withesct to their connections to the public and to other policyki entities, those e e people congress wants to decide questions about ai. we don't even know what the questions are about aile alone the answers to them, we being the court. martinez: justice kagan, i think, if we' trying to figure out what the -- what the reasonable thing to infer that congressasresumed, i think the far more reasonable presumption and the e at's most consistent with our nstutional structure is that congress is going to presume that courts are going to do law and not policy, they're goingo pick the best interpretation and enforce the best interpretation as to this statute in the exact same way that th wld do it with respect to any other -- any other statute. and i this think case actually --ounow, ai is a trickier example -- 19 example. i mean, this case, you know, ether it's -- it -- it was a correct interpretation onoa correct interpretation of chevron is really not the issue

that we're decidinhe. the issue we' diding here is more like that, is more like the countless policy issues that are going to confront this country in the years and decades ahead. will courts be able to decid these issues as to things they kn nothing about, courts that are completely disconnected from the policy process, fr t political process, and, you know, that just don't have any expertise and -- and experience in an eaor are people in agencies going to do that? martinez: i -- justice kagan: that's what this case is about. martinez: -- i think the constitutional answer is that congress needs to set e les with respect to ai. it can delegate some policymaking discretion to agencies, t ce the law is written and the interpretive funconas begun, then that job is -- is for the courts. d think this case actually really is a good example becse i think the problem with chevron is that, like, no one really -- i mean, i'curious to see what the solicitor general will say about thisbudoes anyone

really think that congress was presumg at the agency would get to decide the question of who pays f t monitors? justice kagan: ok. i have oneasquestion. do you think that congress could codify -- codify chevron? martinez: i -- i don't think so beusi think that -- that a statute that codifies chevro would say, essentially, that the interpretive authority h bn reallocated from the court to the agency. i think that -- justice kagan: congress -- martinez: -- interpretive authority -- justice kagan: -- cannot decide that in cases -- after all t statutory tools have been used and there remains a gap or an ambiguity, congress could not decide that it wants people who know something about something to decide the questions that will be left or? martinez: i -- i think that gives away and -- and would -- would take away from courts and give to encies core judicial interpretive authority. i don't think congress could do that. in the same way that congress couldn't tell the president how to exercise the veto perr the pardon power, it can't tell courts how to do interpretation and to defer tsoone else. justice kagan: thank you. chief ste roberts: justice

gorsuch? justice gouc do we have to decide that constitutional eson? martinez: i think it makes sense to decide the constitutional question. i think you could -- juicgorsuch: that wasn't -- do we have to? martinez: i think u uld resolve this case under the apa, and we would certainly welcome an -- an interpretation of the apa that comesutur way, especially if it's informed by nstitutional avoidance principles that i think have a lot ofalnce here. justice gorsuch: are -- does anything in your argumt suggest or depend upon the idea atudges should make or decide policy questions about ai or anythg se? martinez: no. we -- we a hundred percent agree that judges should not do policy. we just thk at they should do law. and that's in -- chevron is about legal questions. justice gorsuch: then there was me question about past decisions, and as you pointe out, this court's moved away from using legislative history to some degree in favor of text, and we've made her changes in our interpretive approaches too without congress's intervention, for example, in sovereign

immunity contexts, returningo the clear statement rule that had preexisted this court's jurisprudence for 20yes, and then we wandered off into legislativhiory and circled back around and corrected our own mistake. we had to deal with the question of whatoo with those precedents, and our answer was to leave them alonfr -- from those ancient regimes, as we -- martinez: right. justice gorsuch: -- called them. are you asking us to -- to d anything different when it comes to chevron? martinez: no, and if i could just explain what -- how i think the world would look with respect to the old cases. i think stare decisis would apply to the holdings of those old cases. i don't think that -- that anything would change. you know, stationary source would still mean what it meant when -- when the court issued that bottom-line interpratn. and so i don't think that this would -- a ruling in favor of our side would -- ulrequire or entail overrng any of those old cases. i think what we really care about pspectively, both with respect to the fishing gulation here but also with respect to other cases that come forward to the courts, making

sure that courts are the ones doing the interprengnd not agencies. justice gorsuch: thank you chief justice roberts: justice kavanaugh? justice kavanaugh: several questions. first of a, skidmore, there was reference to skidmore fence, and i guess i don't think that's the right term, at it's respect or pay attention to, but i think,f throw the term "deference" into skidmore deference, we're going to walk into anoth pblem -- martinez: some -- justice kavanaug -like the one we have with chevron deference. martinez: some might say "deference" is ambiguous. i think that -- [lr] -- that it's imprecise. i think the better way -- i think oftentimes, when people say "deference," what they mean is that if you think the answer is x, you should defer to someone else's answer, which is different. i don't think -- i think absolutely that that would be inprriate. so i would not use "skidmore deference" because i think it -- it runs the riskf of giving that implication. i think that, really, we' talking about very serious consideration of the points that the agency makes, but, ultimately, you have to be persuaded.

and if you're persuaded, then that mnshat you've concluded that the agency has the best interpretation and then you just apply e rmal rules. justice kavanaugh: right. i out skidmore was about the power to persuade, not the per to control. martinez: exactly. justice kavanaugh: yea martinez: we -- i agree with that. justice kavanaugh:k. on the constitutional issue that justice gorsuch d stice kagan were raising, you have lots of arguments here, and mr. clement does too, for overrung chevron without reaching the constitutional issue. so i guess why -- why would we reach it? if -- if we agreed with u overruling chevron on other grounds, i don't see the need to address the hypothetical that justice kagan raedbout congress passing a chevron-type regime martinez: i think three things on that. like i said earlier, we would rtnly welcome overruling chevron, especially under the apa and especially if informed by constitutional avoidance inciples. but i think there are three reasons why you should consider going beyond that t constitutional holding. there are gog be some cases that, as a technical matter, section 706 of the apa wouldn't -- doe't apply.

ansoif it's an apa holding, it may be that in those cases the might be lingering uncertainty about whether deference shou - should 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 duty under the apa to interethe law, i think a lot of that analysis really overlaps with the cotitutional points. and i think, if you -- if you get to a place where yo agree with us on the apa, it's not that far, not that diffent to ultimately agree with us on the constitution as well. and then, finally, i would just say that although, of course, this court often prefers to rule on non-constitutional grounds, i think it's soecognized in cases like pearson versus callahan thathe's going to be a value and a benefit to the judicial sysm providing clarity about what the constiti means. i think -- i would respectfully submit this is one of those situations. justice kavanaug othe question of how much does chevron matter on the groundi think you addressed this little bit by citing judge silberman, but dyowant to

elaborate on that? i mean, are -- there are cases, i assumeth get to chevron step two pretty regularly. mainez: very regularly, your honor. itapns all the time. and i think, if a case like this one or two cases like these two can get to chevrontetwo, i think that suggests that it's really hard to figurouhow chevron step one is supposed to rk. 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 e rson to have gone to the sec and -- and, you know, submitted -- complaint, and the government and the lower urconcluded that that was ambiguous and that it might actually apply, it was asonable to read the statute to not require a report tohe sec. so i think there a ces, there are examples like these thatomup all the time, and, you know, thkfly, this court doesn't have to intervene every single tim b the reason that the problem is there is because you've told lower courts how to do the ierpretation. and as long as that instruction is out there, there are going to aot of cases that get it wrong, and you're not going to want to be in the busissf

sort of error correction on each one. justice kavanaugh: on the question of how congress can operate without chevron, i just want to elore on -- have you elaborate on that a little more. my understanding is congress oftentimes will use terms like "the agency can regula reasonable limits" or "appropriate limits," and that gives, under state farm, a lot of discretion to the agency to make choeso do what justice kagan was talking about, to think about thwod as it exists five years from now or 10 arfrom now and not have to worry about going back to congress. so the question really is for congress and its drafting choices, i think, what kinds of broad, capacuserms it uses, as opposed to using more defined terms or statutory terms -- usual ndof statutory language. ye it can't rewrite that. at least that's how i thought congress could operaten world where chevron does not exist.

martinez: i -- i think that's exactly right,usce kavanaugh. and i think that, like i said earlier, in -- in those situations, the court's job is basically figuring out what the best interpretation of that word is. and in many cases, maybe most cases, those types of capacious words are basically --est understanding of those words is that congress is, in fact, conferring the discretion on the agency. that've different from chevron, where, instead of having a st of language like that or express language conferring a delegation, you're -- you're basically applying this fictional implied delegation that -- that is igred by ambiguity, which is like -- you know, frankly, it's --t's -- it's not -- it's fictional, it's made up. and so i think a world in which congress, wh iwants to delegate to agencies, needs to be express and use language like thatr her language, i think is a better world from the perspective of article i and from article iii. juickavanaugh: thank you. chief justice roberts: justice barrett? justice barrett: mr. martinez, i wa to return to the question that justice sotomayor r about stare decisis. so you said that overruling chevron wouldn't have an effect on the many cases that have gotten to chevrost two and

then deferred to the agency. you said -- am i -- did i detand you correctly? martinez: those bottom-line so isn't it inviting a flood of litigation even if for t moment those holdings stay intact? martinez: so i would say the bottom-line holdgsn those cases, i would just quibble sliglyi would -- i would describe the bottom-line holding as being tt e agency's action was lawful. and so that's the bott le. i think it's true that people could co a say, look, the interpretive methods have changed since thisotm-line hoinwas issued and we think that -- that, you know, a different su now should apply. and -- and that's why courts consider rues to overturn precedent. but i just think that they would apply the same standards that they would apply to other ar decisis inquiries, and i think it would be the re se that would require -- that -- where a court would say this -- this decision not only isn't the best interpretation, but it's like so bad and so practically important that we're going to overturn our own precedent. so i think that would be the safeguard. justice barrett: so, when you say thatheottom-line holdings, you -- you've kind of changed the le generality, right? if you say the bottom-line holdg that the agency's interpretation is lawful, you think 's not open to people to come back then and say, well, it'actually not lawful, this is wrong. the court got it wrong because

the best interpretation isn't the agency's. martinez: i -- i think litigants could make that argument, but i think they would have to overcome the normal star decisis test, which is very hard to overcome, and so they wou probably have to show that it's really wrong and really practically important.

and i think most courts, and i imagine this court, is -- is going to find that that threshd -- is met, like, almost -- very rarely, maybe almost never. and so, as a practical matter, you're not going to be upending, you know, those -- those bottom-line decisions -- justicbaett: ok. martinez: -- even if you let people in theory come an challenge them, which they can do now. justice barret slet me ask you -- you -- you just referred to the, you know, serious stare decisis threshold, you know, that would have to be overcome. martinez: yeah. justice barrett: so l's talk about the stare decisis threshold here. whist different here than it was in kisor? you know, in kisor, thcot declined to overrule auer and the part -- the opinion thatas for a majority of the court was largely it was on stare decisi grounds. so why 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 s why it's -- it's reason -- it's -- it's -- it really is different is because there are important differences een chevron and auer. the most important that i think plays t reliance question is this idea that chevron allows and -- and almost like a feature of chevron, not a bug, is that it encouand allows agencies to flip-flop. and so the reliance consideration with respect to chevron is -- is much, you know, government's side because the agency is allowed to flip-flop all at once, whereas, with our deference, the idea is that the agcy -- it's going to be very hard for the agency to flip-f so i think it's more important to correct chevron because 's -- it has that mistake that auer doesn't. the other differences. you know, chevron is problematic

because ls agencies say what congress intended or what congress's g was, as opposed to just saying what they themselves meant wh e regulation that they themselves enacted. so i the -- the kind of -- you know, the deference makes more sense when you're deferring to the entity that actually created thision in question as opposed to deferring to their interpretaonf -- of a provision that was created by congress. i think, in addition, you know, chevron is not limited to agency pertise. auer is limited to agency expertise. so ar -- is narrower. and then, finally, i do think 's a difference even with respect to the apa where i think e a more clearly puts constitutional interpretation d statutory interpretation on equal footing, and that might nto the analysis. you know, this court, the plurality in -- in kisor sort of emasized that -- that the apa was enacted after seminole -- a year after seminole rock, and so maybe that was aas to think that -- that congress was okay with something that looked like auer deference but that's not true here. chevron came many years after the apa. so i think there are a lot of dierences that really flesh out, i think, the rtant point that the chief justice was making, which was that the analysis there doesn't automatically transferto chevron. justice barrett: thanks. chief justice roberts: justice jackson?

justice jackson: so i've heard you saseral times that you agree that judges should not be doing poliey should be doing law. and i guess i too agree wi it's actually not as easy as it seems to distingui bween the two and -- and that it appears in a lot of yo awers that you sort of say, well, you come upith the best answer, it's a legal on. but i'm not so sure it's a legal question as opposed tos the best under the sort of policy regime. and i think that there's a separation-of-powers danger here to the extent that y're saying that the judges are deciding whether or not this is something the agency should do or not, whether this is a legal question or not. you know, the's the old saying that when you're a hammer,

everything like a nail. and i'm concerned that judges argog to look at all of the questions related to a statute and call them legal if we don't have something like chevron that requires judges to be actually thinking about their proper role relative to this issue. so how can you assuage my concern tt regard? martinez: so i think two points. i think the first ini would make on the distinction between law and policy and how they kind of maybe seem kehey blur together, i think that -- that the 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. d think the court in that circumstance just does its best. it 't have guidance, it doesn't have instructions from thagcy. it does its best. and i think, when it does its st -- justice jackson: but does it have to, mr. martinez? i mean, there are -- there are other regimes in which a court isresented with a question and it identifies it as a policy qu that it cannot answer. so what i'm saying is that it's t necessarily true that just because the court gets an issue, omatically says, oh, this must be legal, i have to act.

martinez: but, if -- if the court got -- just gback to justice kagan's hypothetical, the question of wh -what is a dietary supplement and the agen hn't acted, i think the court would absolutely give meanintohat. and i don't think the court would think that what i's doing is making policy. justice jackson: well, let me give you a -- a particular example, all right? in the food d ug and cosmetic act situation, new drugs can be approved onlyf adequate -- "adequate and well-controlled investn" shows that the drug will have its attend -- innd effect. this term, what is an "adequate and well-controlled investigation," is it your view at congress wanted the courts to decide what it means for a y to be adequate or well-controlled? i me, w would a court go about determining whether that's something it's supposed to be doing or the agency is supposed to be doing? martinez: i inthat the -- the court would -- would do exactly the kind of analysis there that it would do if it had that exact same statute withou the agency acting. and i think what that means is e urt would go in and it would do everything that -- that we allgr happen -- should happen under step one. i think the only difree is that if, after doing that step one analysis, the court concludes that there's a better view and a less better vie then the court should just go with the betr ew. justice jackson: but when -- when does the court ci that this is not my call? martinez: well, i think at the --

justice jackso iuess that's the part that's dropping out for in your analysis. you just say, you know, we do a step onenasis and then the court makes the interpretive decision about wt is means. and i guess -- martinez: i -- i -- i don't think the court ever says that it's not my call if the question in front of it is a question of atutory interpretation, because i think that's a core justice jackson: so every statutory interpretaon question is one of law that a court can decide, you're sayg? martinez: yes, and that -- justice n: 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 denition, if we're talking about interpreting a statute, th y're talking about a legal question in the same way that iy're talking about interpreting the constitution, then you he constitutional question. no one would say that you would apply deference there. justice jackson: so there's vea world you -- maybe we just differ on this. i'm worried about the courts becoming uber-legislators, that when we have a policy -- so one way that some of the experts veooked

at this, some of the legal -- legal scholars have looked at this, is that they say, when there's an ambiguity, there are actually different kinds of ambiguities. so you might have a situation in which e's a statutory term and it's ambiguous in the sense thre are several reasonable meanings of what "stationary sourcemit mean, for example, several different ways that you could denehat. when you get down to that level of anasi the question is, who's going to make the choice as betwe wt those meanings are? and i hear you saying there might be a best choice, but i guess, if we' talking about a policy question, there are several reasonableeangs, why should the court be the one to make that determinatio martinez: i -- justice jackson: and -- and couldn't we be in a world where congress intended for the agency to actually decide which choice best? martinez: i think where i -- where i would just sort of disagree is what you said at the end when you sort of assumed

that it was a policy question. i would just say that if it's -- if the questiohe meaning of a statutory term, that's an interpretive queiothat's a legal question and would be treated as a legalion if you got that exact same question before the agency had te justice jackson: all right. about practical implications. so let's say it is, you know, a legal question, as you have analyzed, adequate and controednvestigations. if i'm an agency and i'm trying to be spsible, how is this going to work as a practical matter? is the agency going to go to court every time it gets one of esundefined terms in a statute and seek, you know, a declaratorjument as to the meaning of "adequate and controlled" -- and "well-controlled investigations" before it goes forward with its policy? martinez: no. stice jackson: all right. its own definition and implement it and then wait to be sued with respect to that, and -- and every ndefined in a statute we' going to have litigation about? think what the agency has to do is what everyone ee s to do, which is try to figure out what

the -- what the law means and th a 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 th'll get sorted out by the courts. but the agency isn't,ik paralyzed -- justice jackson: what do we do about e the chaos that we talked about in -- in the city of arlingtonasthat comes from perhaps having different courts, right? we have 11 different, you know, jurisdictions that have legal ority. so something like the definition "equate and well-controlled investigations," you say the

courtsilsort it out. well, first of all, it will take years perhaps r e courts to sort it out. what is the agency supposed to be doing in the meantime? and different courts from all of these different jurisdictions could actually have a different ew, as justice sotomayor pointed out, of what "adequate and we-ctrolled investigations" are supposed to , -- means. so isn't it sort of impractical and chaotic he 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 impractical. i think that to the extent that stice kagan's questions sort of indicate that there's actually a relatively small set of cases in which chevron's going to make a difference, you're going to have that same oblem with respect to the cases that maybe 20 years ago undea oser approach to chevron wouldn't have gotten deference.

juice 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 ve incentives to parties to raise legal issues that they woul't have raised before? martinez: i -- i don't think i's a problem to -- to have parties, if they think an agency isvetepping the boundaries and if they're right that -- justicjason: no, i understand, but, under a chevron regime, right, if a's the background rule, then you're going to have parts inking twice before going down a litigation road with respecto a term because they'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 find, so it's not any -- martinez: you're -- you're going to have parties bess lely to challenge agency action that is unlawful undebest interpretation of the statute because they know that whe go into court, the judge is not going to apply its independent neutral judgment and instead is going to tilt the scales and defer to the agency. justice jackson: thank you. martinez: and -- chief justice roberts: thank you, counsel. geral prelogar. oral argument of gen. prelogar: mr. chief justice, and may it pasthe court: the chevron framework is a bedrock principle of administrative law with deep roots in this court's jurisprudence. overruli arecedent is never a small matter, but overruling a predent as foundational as chevron should require a truly extraoiny justification, and petitioners don't have one.

they say that article iii requir dnovo review of all statutory interpretation questions. but that's flatly inconsistent with precedent going back tohe marshall court and with the traditional limits on mandamus jurisdiction, which governed mo jicial review of executive action in the early republic. they've said that chevron violue process. but the applatn of deferential standards of review doesn't constitute impermissible bias. an contend that the apa requires de novo review. but that theory is inconsisten with the statute's history and the way it'be understood ever since its enactment, including in the more thcases in which this court has relied on chevron to sustain an en's interpretation. on top of all that, reliance intestin this context are at their apex. congress, agencies, states, regulated parties, and t american public have all relied on chevron and the regulations upheld under it to make important decisions that be upended by overruling that framework. thousands of judicial cions sustaining an agency's rulemaking or adjudication a reasonable woulde en to challenge, and that profound disruptions pecially unwarranted because congress could modify or overrulehe chevron framework at any time.

congress has mantis considered proposals to do so, but it's never taken that step. instead, congress has legislated for decades with chevron as the background rule informing the degree of discretion that congssas chosen to confer on federal agencies. just five years o kisor, this court declined similar cal t overrule the auer deference doctrine based on many of the same flawed arguments that petitioners are making here. the cot served that it would be the rare overruling that would introduce so much inability into so many areas of the law, all in one blo overruling chevron would be an even greater andnwranted shock to the legal system. i welcome the court's questions. justice thomas: general, section

706 of the apa was not mentioned in chevron. how would you rence the requirements of --n is -- on federal courts under 706 with your view of chevron? general prelogar: section 706 says that courts should decide all revant questions of law and interpret statesbut none of that is inconsistent with the chroframework because 706 doesn't prescribe a universal standardf view to govern those kinds of statutory interpretation questio. and e urts are interpreting statutes when they walk through the chevron framework. first, there's all the work that the court does at step one of chevron. that is using the tools of teretation to identify whether congress has spoken the issue in the case and, if so, chevron said that's the end ofheatter. so, in that sense, in a step one case, the court has, of course, interpretethstatute.

but, in a situation where, a the end of that interpretive process, the court is left with no conclusion that it's actually able to ascertain that congress has spoken, then, in that circumstance, i think the right interpretati othe statute is that congress left a gap or maybe created an ambiguity and simulteoly vested the agency with the important responsibility, pursuant to an exess delegation, to administer that statute wi t regulations that have the force 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 fundamenl incompatibility with section 706 and whatheon dictates about how to think about congress's degaons. justice sotomayor: can i say, counsel -- general, i know plenty of statutes where congress uses the word "de vo." it didn't here, correct,

in 706? general prelogar: a's correct. justice sotomayor: i thought it, ani think it, would be revolutionary to say that congress can'limit judicial review. aedpa is the quintessential question whe wnot only give deference to state court decisions, we say evenf got it wrong, if it didn't get it unreasonab wng, we are superseding the court's ability to declare a vlaon of the constitution and give relief. so -i -- i think it would be radical to say that congress couldn't implement chevron. in fact, there is legislation to overrule chevron, requiring de novo review, that hasn't ssed. there are statutes tha basically don't -- say apply de voeview, correct? general prelogar: s. justice sotomayor: and there are statutes that reque differential review explicitly to legal questions, correct? general prelogar: yes. justice sotomayor: besides chev general prelogar: yes. justice somar: all right. 706.ow we have -- we're now at and my -- your adversary, your opsi counsel, said that he didn't see that much disr from overruling chevron, that nobody would reay ing up those old cases. do you have a view on that

general prelogar: i think that my friend, it -- it migh easy for him to say that because inot going to be involved in the endless litigation th i think would result if this court were to overrule chevron. i understand his point to be that all of the holdingsn those cases will be secure because stare cis will apply in those contexts. but the important into realize is that in those cases, as justice barrett's esons emphasized, the court has decided that what the agency d was reasonable. the statute has essentially been intered to vest the agency with discretion such that the agency's gulation is being held lawful or valid on the basis of reasobless, and i think that that means that litigants will come out t woodwork seeking to open those decisions and contending tt they didn't actually address what they now say is the relevant question, not whether the agency's interpretation is reasonable or whether the

regulation can be upheld on that basis, but how the statute should be interpreted without ng any deference to the agency's interpretation. chief justice roberts: counsel, i'll ask you the same question i asked your friend. began by saying chevron is foundational. get a lot of statutory interpretations from agencs, 14 or 16 years, we haven'tt was relied on chevron ov tt time. i -- i mean, have we overruled it in practice en we've let the -- had to leave the lower courts to continue to grapple with it? geral prelogar: no, i don't think so, mr. chief justic it's been eight years since this court relied on chevron at step two, but there's no case that my friends veeen able to point to where the court has said that a statute s biguous or left a gap and chevron would otherwise apy,ut the court is not going to defer in that circumstance. i think that that -- chief juste berts: no. but, i mean, that's simply a funconf the fact, when -- when we go through the work of trying to interpret what a statute means, when we get to the end, that seems to be the right interpretation, and --

general prelogar: i agree. those are step one holdings. so i -- so i tnkhat they are consistentitthe chevron framework. and the fact that this court hasn't had a step two case in recent years in no wayates that in those cases where congress is,ct, leaving ambiguities or gaps, chevron no longer sets the right ground rule for understanding the scope of the delegation. justice kava can i ask you ouwhat i see is an internal inconsistency in chevron itsf? it relates to footnote 9, which is -- instructs that a court should use all the traditional tools of statutory interptaon before getting to step two. my concern about that or my confusion about that is, if you use all the traditnatools of statutory interpretation, you'll get an answe and we know that because, in cases where we don't have an agency involved and wesehose same traditional tools, we get an answer. so how do we deal with footnote 9,hich seems to suggest that you'll never get to stepwof you follow footnote 9 by what it says?

general prelogar: so what the court idn footnote 9 is that the court should use all of the adional tools to ascertain whether congress had an inte on the issue. and that, of course, is an important part of this framework because, if congress actually spoke to the issue, then the agency doesn't have any discretion to act in a way that's contrary to congress's express direction. justice kavanaugh: do you think th's different from ascertaining what the state means? general prelogar: i inthat there can be a relevant difference and it touches on exactly what you were asking about in the context where a cot s to do it without an agency. in that circumstance, i think it's absolutely right tt e court is ultimately going to keep working and decide how it thinks the statute should best ainistered, even in the circumstance where there mig be an ambiguity or a gap to fill. but what chevron recogzeis that there is a third option available. it's not stongress spoke to the issue and it necessarily authorized what the agency did or congress okto the issue and it prohibited what the agency did. there is a category of cases and statesut there where, really, using all of the tools, e st interpretation of the statute is that congress di't resolve it. it left that gap or ambiguity and coleit with this express

authorization tohegency to carry that statute into effect. this is congress and the agci working together hand in hand to put into effect this justice kavanaugh: how wouldou define ambiguity or how would you, if you were a judge, say, yes, this is ambiguous or no, that's not ambiguous? general prelogar: so i would draw on what the court said recently in kisor where it said a state ambiguous when the court has exhausted the tools of inrptation and hasn't found a single right answer. and i recognize, justi kavanaugh, and you have expressed these concerns that there are some lims language here and it's not subject to precise mathematical quantificationbuthat's because i think it's a standard that inherently requires the applicatioofudgment. and at the end of the day, what e urt should be looking for and asking itself is, did congress resolve this one? do i have confidence that tually i've got it, i -- i understand what ngss meant to say in this statute and it meant to proscribe a -- a uniform approach to stationary

source, that it has to be plant-wide or it has to be a rtular piece of equipment? but, in a circumstance like chevron itself with stationary source or some of e amples that the justices have been talking about with reasonae feasible, i think you can get to the end of that process and judge could say: i think, actually, the way -- the right way to understand this statute is that it's conferring discretion on the agency to take a range of permissible approaches. juickavanaugh: do you -- do you think it's possible f a judge to say, the best reading the statute is x, but i think it is ambiguous and, therefore, i'm going to defer to the agency, which has offered y? general prelogar: no, i think athat would probably -- justice kavanaugh: that can't happ? i think that happens all the time. general prelogar: welli ink that there are t dferent ways in which courts use the term "best interpretation t statute." so, if what you're asking me is, is there a world in which a judge could go through the rigoustep one inquiry, apply all of the tools, and say, i

think there's a best interpretation insofar as i think congress spoke to the issue, but the agency's interpretation is it could be permissible, i recognize there's some doubt here, the answer is no. chevron does not reqre court to ignore what is ascertained doing the step one inqui. at that point, that is the -- the judge's concluonhat congress actually spoke to the issue and chevron is total clear about this, give effect to it. but, if what you're asking me , there a world in which the court could get to the end of the step one inquiry, decide that congress hasn't spoken to the ise,nd then say, if, in fact, the courts had been given thro of filling the gap, i would have done it different, i would have exercised whatever discretion that congress left open in this statute ia different way, en oking to things like the overall objectives in the statutory program as aho, then yes, of course, in that circumstance, it's -- it's implementing congress'directives -- justice gorsuch: i mean, general -- general prelogar: -- for the urt 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: wellye, but i'm going to defer anyway given whever considerations you want to throw into the ambiguity buck. anth's exactly the problem

that your friends on the oth side suggest have persisted in the lower courtsor0 years and why some judges claim never to have found an ambiguity and other equally excellent circuit dg have said they find them all the time. and it's also w, don't know, maybe a dozen or more circuit judges have wrteasking us to overrule chevron. and -- and -- an--nd -- and it also may be why one of your colleagues last yearaii don't know what ambiguity means at this lectern. and shldhat be a clue that something needs to be fixed here, that evethfederal government at the podium can't answer the questn at triggers ambiguity? you've given us two different alternatives today, and so many lower court judges who just want to follow whatever we tell them to do faithfully can't figure it

out. general elar: so there's a lot packed in there, justice gorsuch, and i want to respond to eh your concerns. first, i would draw from chevron and kisor in definwhat is an ambiguity. it is when a court has applied the tools of constructn d can't ascertain that congress had an intent on the matter. so i think that ats the core question for a court at step one of chevron, and if that's the circumstan, at would only ever move a court to applying deference at step two. now i understand the concern you expressed that maybe lower courts are too reflexively finding that there's ambiguity at -- juicgorsuch: well, you gave us a second definition just a moment ago, and -- general prelogar: i was trying to -- to explain how i thought that memes -- justice gorsuch: some -- yeah. general prog: -- in the case law "best interpretation" justice gorsuch: yes. geraprelogar: -- is used in two different -- justice gorsuch: right. general prelogar: i don't think that's a different understanding of chevron. justice rsh: 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 friend a year ago thought so and -- and and lower court judges think so. general prelogarsoet me respond to the concern -- justice gorsuch: so yoage -- general prelogar: -- about lower court judges. ifou think that they are too readily finding ambiguity, i ink the court could do in this case exactly what it did in kir justice gorsuch: -- we done that, like -- like, 15 times over the last eit 10 years, say, really, really, really, go look at all the stuty tools, and yet here we have a case, two cases, one in which e urt found ambiguity and went to step two and another one whic-- well, i can't tell what it did, but there's a pret gd argument it -- it tried to resolve it at step one. so, even in a case involving herring fishermen and the eson whether they have to pay for government officials to be onboard their boats, which may call for some exrte, but it doesn't have much to do with fishing or fisri, it has to do with payments of -- of -- of government costs, we -- we -- lower court judges even here in this rather prosaic case can't figure out what chro means. general prelogar: well, i do ink that issuing a reminder to courts about the thoroughness -- justice gorsuch: another one? general prelogar: --h's necessary at step one could make a difference in this context. and i can justha anecdotally on behalf of the government that

we have canvassed the litigating componentsndooked at the lower court case law. and tekisor, lower courts granted auer deference far less eqntly, so i think it can matter and that lower courts c get that kind of message if you're worried about it. but, justice gorsuch, the other point to add here is that if you are concerned that lower courts have different reactions in trying to implement chevron at step one, i think it's important to think about t aernative as well. it's not as though, if this court overruled evn, that's going to get rid of statutory gapsbiguities. justice gorsuch: no, it takes -- general prelog: ey will persist -- justice gorsuch: -- us back to skidmore, which justice jackson, the most ardent of new dle, wrote and that persisted in this court for 40 yrsmore or less, after the apa. and the world seemed to continue on its axis just fine. general prelogar: but it's not going to create grte predictability or stability or consistency across judges. justice gorsuch: that's --

at's -- general prelogar: if anything, i think that -- justice gorsuch: -- an interesting thing to suggest, at chevron predicts stability, when the whole point -- i didn't see you mention brand x much in your brief. but i -- 'm sorry to go back there, but -- my good friend, but brand x aecipe for instability, isn't it, because each new administration n me in and undo the work of a prior one. they're all reasonable. i mean, my goodness, the american pplelect them. of course, they're reasonable people. (laughter.) justicgouch: and -- and -- justice sotomayor: that may be the first -- (laughter.) would have thought that chevron, at least as this court's understood it, is a for anti-reliance. general prelogar: so i disagree with that characterization about brand x, and i think my friend have created, kicked up some dust about exactly what branx does --

juicgorsuch: so you do -- general prelogar: -- and doesn't do justice gorsuch: -- you do endorse brand x, the gerent does? general prelogar: yes. i think its logical follow-on of chevron, and here is why. asra x itself recognizes, if the court has found at step one thatoness spoke to the issue, there's no room under brand x fothagency to reverse the court or somehow change the underlying ang of the statute. instead, the statute has been interpreted at step one and what congress says goes. it's only in the category of step two cases where brand x comes into play, and in that ciumance, it's because the court in the prior case has undeto the statute to leave a gap or an ambiguity for the agency tfi, considering a range of regulatory approaches. soinhat circumstance too, the meaning of the statute doesn't an. it remains a gap for the agency to fill at time two, and ith agency is running through all of the procedural hoops, which n be quite burdensome in this context, to change its regulatory approach, it is still acting consistently with the -- juicgorsuch: or not. general prelogar: -- with the discretion.

justice gorsuch: or not if it -- if it issues an interpretive ruleitut notice and comment or issues an adjudication. it may or manobe that burdensome, right? so brand x also says that an agency can overturn a prior judicial interpretation. and i saw that as a circuit judge with respect to an alien who was allowed into the country under the tenth circuit's understanding of the law. and the government come back and ysno, you have to overturn your precedent, tenth circuit, and 's not allowed in the country. and we had to overrule our judicial precedent. do you think that's an prriate understanding of the law too, that judicial precedents, maybe even precedents of this court, n overturned by agencies? general prelogar: it depends on wh the judicial precedent held. if it 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 core didn't resolve the issue and had degad to the agency t rponsibility and role in administering it and filling the gap, including wit the possibility of changing regulatory approaches based on things like change -- justice kavanaugh: but the reality -- just to pick up on the reality is -- you -- you say don't overrule chevron because it would be a shock to the system, but the reality of how this works is chevron itself ushers in oc to the system every four or eight years when a

new administration comes in, etr it's communications law or securities law or competition law or environmental law, and goes from plato post, like professor pierce wrote, and he habe a fan of chevron. now he's not because he says it's soce of extreme instability in the law. that's his -- his phrase. d it just seems like you just pay attention to what happs when a new administration comes in at epa, at sec, at ftc, you name it. it's ju msive change. that iatar with reliance. that is not stability. anso think to hold up stability and reliance is a little tough given juswahing how it operates every four years. general prelogar: well, let me give you a couple of different reaconto that. i think that that is a small sliver of cases or stances.

and in the mine run case involving agency regulations, agencies themselves build on those regulations as a foundation. there's no evidence that agencies are out there flip-floppft and right or doing so on a whim. and it brings me to the important point that to do -- juickavanaugh: i don't think they're -- i'm sorry and i'll let you finish. but i don't think they're doing it on a whim. i think they're doing it becae they have disagreement with the policy of the io administration and they're using what chevron gives them and what they can't get througcoress to dithemselves, self-help, antoo it themselves unilaterally, which is completely inconsistenwi bicameralism and presentment to get your policy objectives enacted into law. general prelog: t, justice kavanaugh, the premise i think that's embeddedn at question is the idea that congress had spoken tth issue. and in a circumstance where core didn't resolve it and, in fact, wanted the agency to have flexibility and a range of options, there's noin inherently problematic or incompatible with our st of government to recognize that agencies can carry out those directives. and just look at

"stationary source." you know, that was a circumstance where the coursa, applying all of the tools, congress didn't have a vi oit. it didn't want to foreclose a plant-wide definition. it didn't want to foreclose an uipment-specific definition. and i think it was entiry permissible for the expert agency to come in, take stock of the entire situation, d,es, take accountf e policy goals of an incoming administration to better account for the interests of the regulated parties and gi them flexibility. that's just part of congress's design. justice jackson: after all, you know, taking into account the policy goals of the new administrationeflects a democratic structure where we have the new administration being elected by the people on the basis of certain policy determinations. i guess my concern is i suos judicial policymaking is very stable but precisely because we are not accountae the people and have lifetime appointments. so, have gaps and ambiguities in statutes and the

diciary is coming in to fill them, i suppose we would have a sething of a separation of powers or policy -- excuse me -- separation of powers concern related to judicial policymaking. am i wrong to be worried about that? general prelogar: no. thk that that concern is valid, and i think it's li along two separate dimensions, and one is to recognizth in these scenarios where we're at chevron step two, by definition, it's beusthe statute itself doesn't supply an answer and the court can't ascertain that ngss actually meant to resolve it. and in that circumstance, it's tirely sensible for congress to give the issue to an en when it is charged with administering the ate and, of necessity, is going to have to fill the gap along the way. and congress could quite legitimalyant the agency to draw on its policymaking expertise in figuring out the righway to fill the gap. justice jackson: what do -- wh do you say to mr. martino says we've already characterized that as a question of law because the court wainlved at step one in making the

determination,ndo it seems a little odd -- i think i took this awafr his presentation -- to suddenly say, when we're in a step two gap-filling world, now w're going to call it a policy question as opposed to a legal one? general prelogar: so i think you can still characterize it as a legal question while recognizing that in a circuman, to borrow justice kagan's words, where the law has run out and congress hasn't actually spoken to the issue, the court, if it resolves that issue, is -- is into have to draw on a set of considerations to inforit judgment. and i wouldn't callt policymaking, but i do think it means that the courta't suggest that the answer it is giving is absolute dtated on that precise issue by congress because, by fition, we're in a world where congress didn't speak to it. so the crtill have to take account of a narrower range of circumstances, things like the overarching statutory objectives, to try to fill in e gap. but the point is that en congress has left that gap and charged the expertgey with the administration role, congress could he ery expectation, and chevron says congressashe expectation,

that the agency will fill the gaanthat the courts will respect it within the bounds of reasonableness that always a in this context. justice barrett: general prelogar, most scholars of statutory intetion consider chevron to be an interpretion, much like clear statement rules, rule of lenity, judicially created. do you see chevron that way? and, if so, do you see it as dierent in kind from any of the other canons of interpretation that we apply? general prelogar: i do think it is different. i don't conceive of it as a no instead, i think that it is fundamentay oted in -- in kind oseing the ground rules for how all three branches of the government are operating together. and at understand the court to have been doing in chevron cognizing that there are legitimate reasons why congress cannot answer everqution itself and why it will want to go hand-in-hand with an agency by charging that agency with adminierg the statute. and in that circumstance, it' the lef the court to give effect to that. so i think it's noju kind of an interpretive canon, but, rather, it really is grounded in the separation of wers. justice barrett: so is it dependent on a judgment about

what congreswod want, one that would have to be empirically tested? general elar: so i don't think that it's getting into congress's subjective inten although, certainly, i think the primary rationale that chevr gave was its appraisal that this is, as an overarchinmaer, what congress would have intended when it comes to gaps. and i don't mean to suggest that this means that congress thinks about each and every gap it's creangn the moment. sometimes i think it does and it's clear when it says set reonle rates. it knows that it's not itlf escribing what those rates will be in concrete circumstances. it's leaving gaps and the agency has to fill it. but thk, even in the circumstance where congress doesn't kn 's creating it at the time, someone's going to have to come in after the ctnd fill it in, and it's either going to be the agen oit's going to be the court without deference. and in that circumstance, i think the court appropriately recognized congress would want for the agency to do it. justice barrett: and how do we know -- this is -- goes back to that question of what is the trigger ofmbuity that justice gorsuch was asking you. so think about a concrete example like pulsifer, which the

united steis 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 tre justice barrett: so let's -- put aside the question of whether, you know, the department of juicand the executive can get to deference inntpreting criminal statutes. just erase tsue from the picture. is that the kind of question -- you know, judges below, very smt, very reasonable judges ached different conclusions about what that word in the statute meant. is that the kind of question then, you know, inng about brand x saying, well, it doesn't ve to be the best, it just has to be, youno a plausible reasonable one, is that the kind of stato question that would trigger ambiguity and step two deference? general prelogar: so i think it's hard to speak in generalities about thi and i am struggling because, of course, the court has recognized that the department of justice does not get deference in the criminal context with respt

that particular issue. justice barrett: and it's that atory structure in a communication would say to jt try to address the overarching question is that, you know, i think that it's going to be kind of a spefiexercise in every case, and i can't say here is the formula i can give you to know when the statutory inrptation exercise at step one runs out and the court shld feel like, i don't have an answer, congress didn' supply one and when not. i think it's gointoary based on the statutory scheme. but, in each case,heourt should conduct that inquiry, make it a thorghnquiry and take account of all of the relevant aspects of interptaon that can bear on meaning and show that congress, in ft,id resolve it. that is the role of the court, and it's the role of the court kewise to enforce congress's directions. justice barrett: so that kind of question, putting aside the government's po in pulsifer, so mbe- that's unfair question to ask you, but that kind of question you think would be the kind of question that could -- you know, let's take it outside of what does the word "and" mean. you know, a question of statutory structure, the placement of a comma, you know, thaki of a

thing, that is the kind of question tha dending on the circumstance, could trigger step two deference? general prelogar: i think it coeibly could. now i want to hold open and acknowledge that the court has id there are certain types of statutory questions thato't fit within the chevron framework because there are kind of statute-specific reanso think congress wasn't giving this question t agency. i think e jor questions doctrine is a species of that. i'd point to the amsruit case as well where it was a judicial review provision an the court said this wasn't something for thagcy to do. but i think, in the mine run case, yes, and -- and to the extent you're saying, well, it feels odd for it to depend on a commoro turn on the meaning of the word "and," still i think the inference holds because, in that context coress, if it, in fact, has left the ambiguity or the gap, recognizes that th agency is going to have to come up with an answer. justice barrett: except a lot of times congress doesn't intentionally leave the amguy or the gap, right? it's just limits of lanag limits of foresight. general prelogar: yes. so i think a court ultimel

if it's able to ascertain that, although it's not perfectly clear in the statu, u can figure out what congress intended, give effect to that, that's step one. at least congress knows that if it's going to unintentionally create ambiguities or gaps, evn is the stable background rule. it's been the rule for 40 years. this court acknowledged cy of arlington that congress, in fact, legislates against the background of thatul and so it knows that with anything it's doing that's unintentional, that will trigger if the predicates are satisfied. justice kavanaugh: i'm sorry. can i ask you about the phrase "law runs out." one wahink about that would be if you had the same statutory interpretation -- chief justice roberts: go ahead and finish, sure. justice kavanaug se statutory interpretation issue in a non-agency case, could the court decide it? and if the answer is yes, the court could decide it, then the law hasn't run out, so, therefore, you could ask yourself that questionn agency case. if this were aongency case, would we come to an answer on this case? and if s y don't go to step two. what's wrong withha

and if that's not correct, because i don't think you're going to agree with that -- how would you define when the law runs out short of that, which i think is a proemas you said, hard to speak in generalities about this. that's the problem. general prelaryes. so you predicted my answer. i don't agree that it's only in a circuman where the statute would be incapable of the court issuing a decision at the end of day. crse, if a case comes to the court and it has to relv it, it's going to have to do its level best. but what i meant by the law running out is that if the court has walked through all of the tools ofonruction and interpretation and doesn't thk that congress actually dirtl spoke to this issue, congress self didn't resolve it, then the kinds of tools the crts going to have to use will be ones that sound in things like the overarchinstutory objectives that congress revealed as part of its plan. and i think that in a -- a chrocircumstance, the insight of the court's opio there was that the court doesn't ha to go on and itself supply the answer when, actually, the best way to understand congress

having not resolved it itself was to make the primary decisimar or the person with the primar role in the first instance to be the agency. chief justice roberts: thank you, counsel. justice thomas, anything further? justice thomas: just a -- a couple questions. you said that in an exchange with justice sotomornd me that congress could require some deferencwh it came to questions of statutory interetion. and in 706, the reviincourt shall decide all relevant questions of law, interpret constitutional and statutory provisions, et cetera. could congress also require deference on the part of the court with respect to constitutional issues? general prelogar: so i that that would raise distinct issues in light of the different history that would play in

that kind of hypothetical. there has not been a longstanding history of courts deferring to agencies when it comes tontpreting the constitution, so i think there could be a unique article iii interest at stake there. but the sty runs in precisely the opposite dirti when it comes to statutory interpretation, where agenci themselves are charged with administering it becseas we've tried to explain, chevron was not an innovation, it was not something w. these principles of deference go all the way back to the very unding years of the republic. they're reflected in things like maam practice, where virtually all executive action for the first hundars of our nation's history was reviewed deferentially, d en it was continued in a long line of cases from this court recognizing specifically that in a circumstan wn you have the executive administering the statute, congress could delegate and could expect for those delegations to be respected. is a little bit different andmus the other extraordinary writs in that you had quite a high hurdle before they became applicable,

but we normally say that this court reviews questions of law de novo, and thainudes statutory and constitutional. how ulyou distinguish that normal practice from what you're saying? general prelogar: well, i think it is more nuanced than that. i certainly take the point that the court reviews nyegal questions de novo, but that's not invariably the case. there can be issues that arise under distinct statutes that set foh re deferential standards of review. aedpa is a good example of that. there can be circumstances le mandamus where the nature of the action itself dictat aore deferential standard of review. and i just don't think it would be accurate s as a uniform, across-the-board matter, de novo is thetaard that always and invariably applies. th's inconsistent with cases om this court that were cited in chevron, going back tth early 1800s, things like edwards' lessee vers darby,

where the court itself was recognizing th ia variety of contexts where you have ambiguity pticular and you have an expert agency charged with administering the statute, deference can be warranted. e thomas: thank you. chief justice roberts: justice alito? justice alito: can you provide a concise definition of what "ambiguity" means inhi context? general prelogar: ambiguity exists whethcourt has exhausted the tools of interpretation and hasn't been able to arrive at confidence that there is a right answer that congress spoke to the issue. justice alito: well, as justice kavanaugh's recent queio presented, in cases th d't involve an agency, we never say we have exhausted all of our tools of interpretation and we just can't figure out what this means. so thawod seem to suggest you never get to step two. general prelogar: but the relevant question at step one is whether congress is, in fact, resolving it or delegating it to the agency. so i agree tha circumstance where you don't have an agency, the court can't give effect to any delegation

and, instead, the backup optio in a situation where an agency would otherwise be availables the court has to do it, but i don't think that that undermines the very real on-the-ground possibility that congress is legislating and meaning to give the agency the gap. justice alito: well, i come back to the question of your definition of ambiguity. and what i heard you say the first time was it's when we've used up all outos and we can't figure out what it means, then it's ambiguous. so do you want to provide an alternative definition? general prelogar: so i think maybe e st way to try to clarify what the definition i'm trying to give is to use an example of something like a statutory tm like "reasonable." 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 to apply it ithmany different cases that come before them. general prelogar: e urt gave this definition in kisor five yes ago with respect to auer deference, and i think it'the right definition to use -- here as well.

stice alito: what is it? general prelogar: when a court has used or exhausted the tools of interpretation andon't believe that it reveals a right answer. in that circumstance, chevron said the right way to think about that statute -- the real right answer there is a delegation. stice alito: but again, i think you -- you're running into e problem that we never do that in cases that don't involve an agency. general prelogar: because in those cases -- justice alito: so i think you've got to provide a different definition. now, what i heard you say at a couple of timedung your argument was it's when we can't figure out what core intended. is that whatouean to say? general prelogar: that is the iniry that chevron prescribes that you should be -- and this is drawn from footnote 9, which is another foulation of this, use the tools of inrpretation to see if they reveal congress's -- juste ito: what do you mean by what congress intended? do you mean to say that you get to step two whenever we don't think that a majority of the house and a majority of the senate had an intent on the spific question that is before the court? then you'd always get to step two. general prelogar: no. so i don't think 's about

individual legislators' intent. i think the court in chevron used the wd ongress," but you're really looking at the statute and what the statute reveals about whether it's resolving an issue or not. justice alito: thank you. chstice roberts: justice sotomayor? justice sotomayor: there hasn't been much discussion on why this is entitled to statury- to stare decisis consideration. there's been an argument by petitierthat it's not really a holding of a case; 's a method only, and we have said in the past that a mhothat lower courts have to use is subject to change we can make without considering stare desis. so could you address that argument? general prelogar: yes. and i think that petitioners have pointed to two relevant types ofas that they suggest

just mean stare decisis doesn't apy re or it applies in particularly weakened form. first, they say the court has sometimes changed the interpretive tools it consults. things like legiate history might have been in greater favor, at least with some justices, before and maybe have fallen out of favor later. but i don't think that those provide a parall aall, because the court has never distilled those kinds of interpretive tools into a governing framor it's never, for example, dictated to lower courts you should be apyi legislative history in all cases. and so i don't think that it s the same kind of roots in the pef binding governing framework that chevron has, which really has functioned in quite a different way with respect to how you understand and implement congress's directives. the sendase they've pointed to is pearson, which held, in the context of the saucier rule, that that was entitled to weakened stare decisis. but there the court saidhais entirely a rule of internal judicial management ouhow courts decide issues and sequence their decision-making process. it doesn't have outward-looking consequences, d would be foolish to require congress to

step in to fix it. there, too, i think that the considerations runn precisely the opposite direconere because chevron is not just a binding framework about how courtsonct their business; it also gives notice to the legislature abt w its statutes will be construed. anifhe court got this wrong when chevron was decided and was wrong about legislative intent, congress is the the ready and is perhaps the best part or institution in govt to be able to correct it and actually say, going forward, what it wants the ground rules to be. d the final thing i would say, justice sotomayor, is that these were precisely the kinds of considerations that the court took into account in kisor in apyi the strongest form of decisis to auer deference. kisor's analysis on this.gnored this was the majorithe court where the court said congress can stethese deference decisions are balls that are lobbed into congress's court, and there are big reliance interests at ste here because there are dozens in that

case, here thousands, of decisions that cldtand to be displaced and create chaos if chevn overruled. so i think that, from a stare decisis perscte, that precedent counts as precedent too. justice sotomayor: there -- and you answered the reliance question, because one of the arguments on the other side is no one has -- well, the first argument, that the court hasn't applied chevron in how many years, and so nobody should have gimate reliance interests. and the second argument against rean is that no one should have reliance on a wrong interptation, basically. general prelogar: yes. and i think that those kinds of guments are inconsistent with kisor and also inconsistent with what we kn aut what happens in the real world. there ency regulations out there that have been on the people have made investment decisions on the bf that. people have decided what contracts to eernto on the basis of that. states in cooperative federalism pr have designed and invested the resources into eir share of that program. and all of that could be thrown intoisarray if now it can be

subject to renewed challenge on the basis that that relaon was upheld answering the wrong question, not looking at whether it conflicts with some purportedly better interpretation of the statute. chief justice roberts: justice justice kagan: there's been a fair bit of talkgeral, about how because you don't have a formula for saying when there's a gap or ambiguity so that you go to step two or because judg may have different tendeie you know, which migh temperamental as much as anything else, to find ambiguity, because of that there's going to be some variability. and it's hard to argue that it will be some variability, but could you talk about the variability in the alternative scenario? general prelogar: this is a really important pnto focus on because, as i was trying to say earlier, ia rld without chevron, it's not as though congress is alwa gng to speak clearly and it won't leave gaps or ambiguities in statutes, genuine ambiguities where you

apply the tools and at the end you are ftith no certainty about what congress was trying to d aninhat circumstance in a world without chevron, what we'll see is what justice alito was suggesting, the courts will have to go on and try to answer the question. but there are 800 district court judges around the nation, and i think it's ir to say they will likely have different takes about what to do in that circumstance and what to give greater weight to and how to titely fill the gap in administering the statute. and that's going to create problems for a couple of different reasons. justice kagan: and those differences, to go back to justice alito's earlier questioni an, those differences reart of the impetus for chevron because those differences were looking awfully idealogical in nature, awfully partisan in nature. and chevron, all the empic evidence suggests, dampens that kind of idealogical division between courts. general prelogar:'s right. there is good empirical evidence to support that judges have an easier time ng common ground under the chevron frameworanat least identifying when they can agree thatess did not itself

resolve an issue, than they do when they have to titely go on and try to figure outha they are going to say is the put the statute into operation. so i think that th irooted in chevron, ajust reflects as well this uniformity concern, one of the basic justifications for chevn d one of the reasons why this inference of ative intent is sound, because agencies can provide that kind of uniform rr the nation, subject to the ground rules of ur of judicial review under chevron. but i think that the alternative world where e's no chevron is that there will open up wide dispesmong the lower courts, maybe on these mine-run utory interpretation questions in complex programs, medicaid, and i think that it could mean that regulated parties are bjt to different rules in different parts of the country. you lose the uniformity value, and it dimiss the force of the political accountability value. so i think congress would have very good reason to think that agencies should do this and that courts should respect it within the bounds of reasonableness. >> justice gorsuch?

>> you agree that courts, under the apa, have to review questions of law involving the constiti de novo? general prelogar: yes. i think there might be certain circumstances with respect to certain provisions where more deferential standards apply, but i certainly agreth don't defer to agencies. justice gorsuch: ok. and you agree that, elsewhere in the law, when posed with questions of law, courts review those de novo, generally speaking? general prelogar: i think that, in many contexts, it's de novo. certainly not in all context justice gorsuch: the examples you gave, i think, were aedpa and mandamus, right? general prelogar: yes. i think those artwgood examples of situations where there are specifications of a standard of review that's more derential. justice gorsuch: i wonder whether those veore to do with remedies, right? a mandamus case, a court should say, or can say, what the w is. it just can't providreef unless its conviction about the statute meaning is sufficiently clear. same thing in aedpa, that we require a heightened standard before relief is granted.

same thing in sovereign immunity contexts. we may think the statute says the government's liable, but we imse a higher standard before we grant access to the fisc. general prelogar: so i acknowledge that i think that many of those doris do turn on limitations built into the writ or limitations on remedies. i don't think it would be right, justice gorsuch, to say that in e ndamus cases, what courts were traditionally doing is saying let me put aside athe executive officer did and just interpret the stutde novo and say what i think the right answer is. d e right answer is the executive was violinthe law, but not clearly outside the scope of the executive's authority. justice gorsuch: but he could do just as we do in the qualified immunity context. there are o eps to that analysis. you can just go to the second one and resolvit and say, ah, it's not clear, so i can't provide redy. general prelogar: but i think, for petitioners to succeed on their article iii argument, they have to show not just that you can review de novo, but you have

to. justice gouch: -- i'm not asking about article iii. i'm just asking about the apa and what it means. general prelogar: yeah. so sorry if minderstood. i do think, though, that what the history shows at the very least ishe has been no fundamental rule in this country leinup to the apa's enactment that you have to review all questions de novo. and that's where the sty of the apa really matters. this court has severalim recognized the apa was a restatement of existing judicial practice when itamto review of agency statutory interpretations. and as we've explained, there are really deep roots here, a long line of precedent and history showing that courts will sometimes defer. just as gorsuch -- justice gorsuch: you do point out cases like edwards' lessee and others where thisou gave respect to the federal government's contemporaneouanuniform interpretation of the statute. and that's exactlwh skidmore does. it gives respect to contemporanes d uniform interpretations. but chevron, it doesn't matter whether it's contemporaneous and uniform. it could be novel and out of the

blue and inconsistenwith everything that came before and it still gets deference, right? general prelogar: i disagree with the idea that those cases stand for the more limited justice gorsuch: well, i'm -- reading from them, but okay. general prelogar: there are dozens oth. so i acknowledge that they use varyinfoulations, and maybe you can find some that look a little morli skidmore. i think i have a lot that look a whole lot like chevron -- justice gorsuch: let's say you don't. then what? general prelogar: well, i think -- i just have to dispute the look at gray versus powell, look at nlrb versus -- these are cases in the 1940s that were leadg ses in administrative law. justice gorsuch: oh, i -- i put aside what happened in the 's cause it went back and forth and wound up in 10 you wanted to say it's a very old thing, and the old cases don'look anything like chevron. 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 persuadi you. justice gorsuch: if it -- if it's contemporaneous and if it's uniform, rig? general prelogar: and i just want to adasell -- justice gorsuch: i -- i have another question, though. chevron,oumphasize, is -- value-neutral and it'll sometimes favor industries that are guted and sometimes favor the government. and i can certainly e at in sceniowhere we talk about the flip-flop of administrations d new people leave -- come in and replace others and -- and there's a lot of movement from industry in and out of those agencies. i think george stigler talked about regularyapture. i n't worry in a chevron regime about those people. they can takca of themselves, okay? the is political account, fine. the cases i saw routinely on the courts of appeals a i think this is what niggles at so many of the lower court judges -- are the immigrant, the veteran seinhis benefits, the social

security disability applicant, o ve no power to influence encies, who will never capture them, and whose interests are not the sorts of things on which people vote, genal speaking. and, there, evn is almost always, i didn't see a case cited, and perhaps i missed one, where chevron wound up benefitting those kinds of peoples. and it seems to me that it's arguable, and, certainly, the other side makes this argument powerfully, that chevron has this disparate impact on different classes of persons, and i wanted to give you a chance to respond to that. genel prelogar: sure, and i have a couple of different reactions to that. one is to say that i, ofoue, acknowledge that t w that chevron operates, it gives effect to agency interpretations even in circumstances where that might be oosional, some of the categories of individuals that you're identifying. but, if it does that, it does that in accordance wh congress's intent and wishe because even my friend agrees

that there are certain delegations that congress can make to agencies and certain gap-filling that agencies can do i don't think there is a kind of fundamental fl. justice gorgeous -- gorsuch: it is in favor of themmrant, in favor of the veteran and the socialecurity applicant, but because of a fictionalized statement congress wanted wn it did not think about the problem, the government always wins. geral prelogar: there are a couple of different ways to commit the concern inot just in the exercise of disetn the court with think something is fairnd for the gap in that way, but rather the core things that actually the reason it is fair is because i have a sense that congress spoke to ts. i can determine a based on all of the tools. justice gorsuch: it does not

matter wheth congress actually thought about it, and that there are many instances where congress did not think about it. and in every one of those chevron's exploited against the indidu and in favor of the government. general prelogar i do not think it is fa ttreat that as an exploitation congress has been aware. it can change chevron at any time. it can displace if you think that is being used in a situation not warranted. justice roberts: justice kanaugh. justice kavanaugh: i think the other side's argument suggests e basic analytical concern at the heart of chevron is that it trts law as policy. and if that is antithetical to r nstitutional structure and the rule of la d that is why the footnote nine questioiso important. because if you use the traditional olin a nonagency case and got an answer that suggests it is a statutory interpretation questn.

and you are saying, no, you can stop short of atn an agency case in some difficult to find -- define point and trt e rest of the case as a policy call for the executive branch. and thats eating what was a law question in an nonagency case as a policy question in an agency case, and it is the same quti. so it is transforming law into policy. and that is very difficult, i think, to accept, if you accept the idea that a premise of the rule of law is that the executive and the judiciary nn just treat the laws passed by congress as mere expressions of policies that they can change. spd to that. general prelogar: i hear that concer i think the way to address that is to readdress the inpal in footnote nine. we agree that is an important principle. and to the extent there are agencies or lower courts that

are effectively not giving the effect to congress's own enacen then a court can police that and put into affect the footnote 9 principal in a robust way with a gous analysis. that is the kind of instctn the court gave in kaiser. justice kavanaugh, i think it's not a ffent question in the agency context and nonagen context. what i understand chevron to be doing is figure out a congress spoke to this issue. d if so, implement it. but hold open the possibility congress did not speak to the issu and in that context, if congress hagin the agency this primary, critically important role to mister the statute, that should give deference if the agency stays within the bounds congress set. in an nonagencca you don't have the agency to relying on. you might end up thinking congress d n precisely speak to this issue, but what is t best that i can do to figure out how congress would have resolved

it or what is the interpretation mo consistent with the overall statutory scheme here? the right way to resolve this case, congress wouldno that courts areoi to have to do that in a context without an agency. it is still following the terms of the state i thk would be a fiction to suggest th what the court is doing there is following congress on explicit expression t matter. juickavanaugh are -- kavanaugh: i think it is important toisnguish statues that involve legal questions of atory interpretation. there are tons of statues,e's go back to the a.i. example, that explicitly confer broad policy discretn agencies. that is where state farm kicks in. and that is where we have always been defenal. general prelogar: correct. justice kavanaugh: yo acknowledge those are two different kinds of statutes. one statute that says for example no one can catch more than 50 fish today. the next statute is basically

the agency can define what a reonable number of fish that can be caught in a reasonable day. the second state confers broad poli dcretion. do you agree those are distinct? general prelogar: i think that one is a clear bestowal of discretion on the agency. i think it shows congress can legislate in a varietyf ys. justiceavanaugh: so you agree congress can legislate broad policy discretion to an agency or grant explicitly through words like reasonable, appropriate? general prelogar: absolutely. i think e me question and sometimes come up in those context. congress has had to borrow from the chief justice's example, reasonable truck lengt, ere isn't an agency interpretation. the court is going tha to do its best. th i actually meaning to create a ze discretion. justice kavanaugh: tt is the state farm question as i would see it.

two more questions, i want to make sure the concerns of the other side get ahae to respond. some of this would be taking power and grant to get to the judiciary. there is aifrent conception of chevron that it is taki power from congress and shifting it to the executive and allow ed the executive in essence to unilaterally make policy without congress. and one of the concerns histicly from the beginning of this country was unchecked executive power. and you hear presidents criced all the time, whether it is roosevt,eagan, bush or obama, criticized for exercising unchecked power. the concerisbout chevron ushering in aggressive asseio of unilateral executive power. and that is e ncern that i think the other side has. not about the judiciary taking power, but the judicia hing taking it from congress and

shifted it to the executive contrary to her usl ncerns. general prelogar: i disagree with the characterization that chevron permits and congress is porless to do anything. in the first instance congress has to make the delegaono the agency and the court can enforce that, and so congress knows to speak patiently - capaciously when it wants bestow discretion, to speak plainly it wants to rain an agency in and resolve an issue itself. congress can change the rules of deference that apply in any context. therha 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 iv seat here. justiceavaugh: this is a technical point. most presidents would veto or get rid of the chevron deference. a's the technical points. last question, which is there was lkbout democratically elected political branches. wa to get your agreement on something that i think you will agree on, the role of the

judiciary historically under the constitution to police the line between the legislature and the executive to make sure that the executive is n orating as a king and is not operating outse e bounds of the authority granted to them by the legislature. you agree that is a proper judicial role? general prelogar i agree with that, but i think chevron is conste with that. the court polices the executive at that one by ensuring congress his own choices are t to operation. if further polices the executive at stetwas the court said in kaiser, reasonableness is a test that agey n bail. -- can fail. there is work to be done to make sure the agency doesn't transgress some outer boundary line that congress set. justiceerts: justice jackson.

justice jackson: pickin where justice kavanaugh left off, that's in the court he not only police the other brches, but itself as well? by that i mean to the extent that t oer side raises the concern that, you know, they are treating law as policy. isn't there a concer policy questions might be eated as law and that what chevron is doing is also helping the court to police its own determination in that regard? general prelogar: yes. and i thk way to illustrate is to think about a delegation like the decti practices as defined by the secretary. if there were stue this -- statu that said that, of course the court couldn'come in and say the secretary said ats a defective practice? i think there is a better way to thinabt the concept of what is deceptive. erefore, i am not going to override what the agency is done or notive any weight to it. congress has directed what you should das court is paying attention to what the secretary did. the secretary was given that rolen ministration. obviously chevron applies to

circumstances that delegation is to identify the same basic idea whe think the courts rule -- justice jkson: why isn't the answer with thotr side said, which is really make congress a that? in other words, it seems to me their argument is when we ar policing this line between what is law and what is policy we require congress to say the secretary gets to make this decision. and when it doesn't, i guess we look at it as a legal question that the court can decide? general prelogar: i think that argument would have more merit if the wen't much water under the bridge in the fact that the court explained wheor what identify this kind of delegation 40 yearag petitioners talked abouthe reliance interest year and ted to diminish them. they did not talk about congress's own interests and liance on chevron. i think at this juncture, to say that we argog to switch to default and make congress a direon is in part would be to run to the detriment of congress's own reasonable expectio with respect to

drafting. it also does not accntor the category of cases where the language congress is using is infused with discretion. they agreed to terms like reasonable, appropriate, necessary. those are terms that require greater application to fill in thdetails. you cannot interpret them in a vacuum. so io't understand how this idea of making conessay it could function in that kind of world. and in the final thing is congress has said something very important rethe agency shall administer the statue with regulations or adjudications that have the force of law. that is part of the stues -- statute as well. justice jackson: you think that real cries a lot? i've heard you focus on that many times when u e talking about a situation in which deference should be reir. general prelogar: exactly, ngress in each and every statue where this is going to be applab or chevron deference will be available is going to have made that judgment in the statute to give the agcyhat responsibility and role in implementing the statute.

stice jackson: let me just ask about whether n going to the issue of ambiguity, which has come up many times, whether or not the court could clarify when there is a gap or ambiguity that allows for or requires the court to go totetwo? and what i am thinki aut is what i mentioned about prioly with your friend on the other side, which is some holars have actually identified different kinds of ambiguity. so in one scenario we have a statute that uses a broa and that term encompasses a range of reasonable meanings. there are three or four different ways that e reasonably, you know, the meaning of stationary source for example. but then there is also the kind of ambiguity in which a statute n mean only one thing, either letter a or b perhaps as of the way language is put forward in

the statute. its just unclear. whether it means a b. i take the scholars to mean that really ithformer scenario is the one in which we have a situiowhere chevron deference would be required. and could the court say something like that? let me clarify, i look at that is reducing to a policy choice. thatwe are in the world of finding the kind of amy where there are a number of reasonable alternatives in terms of making this determination, then it is just going to be a policy choice as to which one congre wted in some sense or which entity congress wanted to make that decision. general prelogar: so i think there certainly this court could provide more guidanctoower courts. and in particular identify the types of staturyssues and might clearly note discretion.

there are going to be some easy cas on this. the types of situations whe there might be multiple ways to implement and signal there really is a zone of discretion and the agency should ve flexibility. my only concern with going down the road of saying there is some fundenl difference with respect to particular terms that might be subject to only two poib ways to be implemented is that there is kind of an endless number of statues out -- statutes out there d l kinds of varieties. i worry that it might side of certain context where congress actually is comfortable with the way of implementing that particular term, even if there are only two possibilities, and diin fact delegate that issue to the agency. i wouldn't want some kind of bright line rule to dimini t court'abity to recognize and implement that kind of delegation. thank you. justic roberts: thank you, general. mr. martinez, rebuttal? mr. martiz:hank you, your honor. firsofll, i think it's really important to be very clear about what chevron does. it takes the power to say that

the law or what the law means. to say that the law means x, it takes thatow away from courts and gives it to agencies. if then forc ancies -- forces courts to adjudicate the rightsf dividual litigants that are in front ofhebased on a version of the law that the courts themselves do not believe is correct. do not believe is the best interpreti. neither congssor this court can create a doctrine for -- or legislative statute that effectuates that reallocation of teretive authority. my friend on the other side at the purpose of chevron is to set the ground rules on hoth different branches of government should operate. with respect, i think the constitution says to ground rules and it makes clear the dicial power rest thhe courts, not with agencies and certainly not with congress either. i think the apa reinforc tt. the solicitor general tries to rescue or reconceptualize chevron ting issue with our argument that under chevron if

the court thinks the best interpretation is x it will have to app yecse the agency told it to. that is exactly what chevron says. it tells theou that it has applied interpretation that the court itself would not choose. interpretation that the court se does not think is best. the solicitor general also described chevron as applying in the formulation that hura t, it applies tt the agency didn't resolve the question, an innocuous raising. what is really meant by that is chron applies in cases of ambiguity. and ambiguity has alyseen understood as a situation where reasonable people can disagree about what thlameans. that jusbrdens the scope of deference. ambiguities are all over the place. urts resolve ambiguities all the time, that is core to the interpretive function. there is no reason to think just

cae congress is accidentally left an ambiguity in the statute th wt it is trying to do is have it resolved by policy cisions made by an agency. justice bartt asked about the justification of chevron rather the intent jtication is valid? i took my friend to concede the delegation is fictional. but nonetheless to say we should ply it anyway as a presumption. i do not thinkouan get the mileage that you need to get out of the intentional delegation eory after you have conceded it is fictna the only reason it has weight is if it is actually what congress waedo do. if congress did not want to delegate it, thewehould not be reconceptualizi h we think about statutory interpretati bed on a fictional premise. here there inoeason to think congress actually wanted to delegate policymaking authority to agencies to resolve any ambiitthat arises in any statute administered by the agency. i think the governmentolions to tt problem is to propose a

eastatement requirement on congress. hey, you can just lesle more clearly. ambiguities are unintentional. i do not think that works. i think that would impose a massive clarity tax that is unjustified. i think the pcents made very clear they were talking about remedies in those cases that expressly say if we re interpreting these legal issues in a different context where we were not limit bthe limits on mandamus remedies we would apploubest and independent judgment. the solicitor general is looki at text that requires us to interpret statutory provisio. and is saying that re interprets statutory provisions and is consistent with chevron as sheesibes as allocating interpretive authority to agencies. the statutes say crt get the inrptation. chevron says agencies get interpretive autri and not court. these are inconsistent.

finally with respect to the course corctn ideal or the amended approach, i would respectfully suggest that you have tried to mend this and course correct over and over. at is why we have a chevron doctrine it i overlaid with a lot of bes and whistles. it is very hard to apply in practice. i think in the real world if you try to mend wiouending it you are going to put a lot of pressure on the major question doctrine. peopleilbe coming to this court every become to the court every three or four years after you to adopt a new limitation, a new caveat. we would suggest the solution here is to recognize the fundamental problem is chevron itself. interpretive authority belongs to the courts. if we have the best