4:00

I think people have compiled statistics, something

4:02

like 75 to 80% of cases when they ask

4:06

for Chevron deference. And it's easy to see

4:08

why. Most cases that get litigated, especially up

4:10

to the circuit courts, are tough questions, are

4:12

close questions. And different

4:14

judges apply Chevron in different ways. Some

4:16

are quicker to find ambiguity than others.

4:19

But if a judge is inclined to find ambiguity,

4:21

they usually can. And usually

4:23

the government's interpretation is not totally off the

4:26

wall. It's usually enough for them to say

4:28

it's permissible. It's in the ballpark. And

4:30

as long as you have those two things,

4:33

the government wins. So it's not hard to

4:35

see why this became the government's favorite doctrine

4:37

to cite and rely on. So

4:39

in throwing this out, how

4:42

narrow was it? I know that Chief

4:45

Justice Roberts, I know that

4:47

Chief Justice Roberts sort

4:49

of just clarified that

4:51

look, a lot of precedent that

4:53

people are relying on, that's not

4:55

going to go away. But

4:57

courts essentially from here on out

5:00

do not need to defer

5:03

as a matter of course to

5:05

agency interpretations of statutes.

5:08

That doesn't seem unreasonable.

5:11

That's right. We're essentially going back to the good

5:13

old days of pre-1984. Justice

5:16

Gorsuch wrote a concurrence where he described the

5:18

short life of the Chevron doctrine. And in

5:20

the course of constitutional history and Supreme Court

5:22

history, 40 years is a

5:24

pretty short life. The big

5:27

question was, would the court go big?

5:29

Would it fully overturn Chevron or would

5:31

it go smaller and create more exceptions

5:33

to it or cabinet further? But the

5:35

court went big. They said in no

5:37

uncertain terms, Chevron is overruled. You give

5:39

no deference to the legal interpretations of

5:42

the government just because it's the government.

5:44

Now you can still, for example, be

5:46

persuaded by the government's arguments, including the

5:48

fact that perhaps the government had adopted

5:51

an interpretation right when a law was

5:53

passed and kept that same interpretation all

5:55

the way up to the present. That

5:58

could be some persuasive evidence that it's probably

6:00

a plausible interpretation of the

6:02

law. Courts had used those kinds of tools

6:04

before Chevron, and the court made clear the

6:07

courts can continue to use those types of

6:09

tools. So, in

6:11

dissent, Justice Kagan, who

6:13

takes these questions very seriously,

6:16

says, in one fell swoop

6:18

the majority today gives itself

6:21

exclusive power over every open

6:23

issue, no matter how expertise-driven

6:25

or policy-laden involving the meaning

6:28

of regulatory law. As

6:30

if it did not have enough on

6:32

its plate, the majority turns itself into

6:34

the country's administrative czar. Well,

6:37

this is the key debate. Who

6:39

decides, as so many cases

6:41

are, this is a case not just

6:44

about the outcome of this particular legal

6:46

question, but about who decides these types

6:48

of legal questions. And proponents of Chevron

6:50

will point to the overtaxing of the

6:52

federal court system. I've long

6:54

said, I think we need more federal judges. I'm

6:56

not going to deny that,

6:58

that they certainly have heavy caseloads and

7:01

may well have heavier ones, where cases

7:03

may well take longer to decide without

7:05

Chevron deference. But you have to go

7:07

back to first principles. A lot of

7:10

the separation of powers rules we have

7:12

in the Constitution and in the APA

7:14

are inefficient, but are there because different

7:16

bodies have different powers and are supposed

7:18

to have different powers. So

7:20

I think, yes, you can make efficiency

7:22

concerns, but the rebuttal to that is

7:25

that there is a separation of power

7:27

and due process concern when the same

7:29

body is both enforcing the

7:31

laws and interpreting it. And

7:33

just as a practical matter, when

7:35

you have agencies and a lot of the

7:38

arguments in favor of Chevron deference rested

7:42

on this idea of agency

7:44

expertise, that is expertise in-house

7:46

to make specific determinations. That

7:49

expertise, depending on the administration,

7:51

could go one way or another. And

7:54

when interpreting a statute to

7:57

determine what the regulatory power

8:00

actually conferred was,

8:03

an agency is probably going to

8:06

err on the side of a more

8:09

expansive regulatory power. JS That's

8:11

exactly right. And we've seen this over

8:13

and over again, questions the

8:15

agency's interpretation of a law flip-flopping, depending

8:17

on which party controls the White House,

8:20

which really does put to the lie

8:22

the notion that they're putting nonpartisan expertise

8:24

to use when they're interpreting

8:26

these statutes. And I think the majority

8:28

opinion has a more fundamental rebuttal to

8:30

that, which is, look, experts can write

8:33

their arguments in briefs. They can file

8:35

amicus briefs, like we at the Cato

8:37

Institute do all the time. There is

8:39

no shortage of ability to put arguments

8:41

in front of the judges and to

8:43

make your case to them persuasively. This

8:45

doesn't cut off any source of persuasion

8:47

or any source of expert

8:50

witnesses in the district courts or amici

8:52

in the appellate courts. All this says

8:54

is the ultimate call is this

8:56

persuasive or not, that can only be made

8:58

by an Article III judge. JS Let me

9:01

try to draw out a

9:03

distinction between what Justice Kagan

9:05

wrote and what Chief Justice

9:07

Roberts wrote. He

9:09

was talking about this body

9:12

of expertise that could be

9:14

relied upon, could inform a

9:17

decision that a judge makes.

9:20

But when it comes to

9:22

interpreting statutes, that is fundamentally

9:24

a job for judges

9:26

when there is a dispute.

9:30

Whereas Justice Kagan presents

9:32

in her dissent simply

9:35

conferring power that

9:37

the Supreme Court is conferring to itself

9:40

the power to have a much greater

9:42

role in regulating environmental

9:45

pollution or healthcare or any number

9:47

of other areas. Can you draw

9:50

out that distinction?

9:52

Because it seems pretty important that

9:54

they seem to be talking about

9:56

slightly different things. JS I

9:58

agree. They are in a way talking pass

10:01

each other. And I think there's a fundamental

10:03

disagreement about are we really discussing questions of

10:05

law or are we discussing questions

10:07

of policy gaps that Congress

10:09

intended agencies to fill. When you read

10:11

the arguments that Kagan made and the

10:14

arguments that the federal government made in

10:16

its briefing, it's really treating these gaps

10:18

not as tough questions with yes or

10:20

no answers, but as gaps as

10:22

essentially the type of thing where a statute will say

10:25

the executive branch should do whatever is

10:27

reasonable to fight pollution. And then the

10:29

policy fills that gap. Sometimes they do

10:31

write it that way and they do

10:33

essentially say this is a policy question,

10:35

but that's not what Chevron is about.

10:37

Chevron is about the legal interpretive questions,

10:39

the things that do have a yes

10:42

or no answer. And Roberts, the thrust

10:44

of Roberts' opinion is we're only talking

10:46

about those. And if something would have

10:48

a yes or no answer in a

10:50

non-admin law case, that same type of

10:52

question has to have a yes or

10:54

no answer in an admin law case.

10:56

It's not a gap that would be

10:58

equally correct to fill in multiple different

11:00

ways. I was speaking

11:03

with Chris DeMuth recently, who

11:05

you may know, and he basically

11:07

on this question of

11:10

agency expertise said

11:12

it would be totally reasonable for Congress

11:14

to develop at least some of that

11:17

expertise in the House. And

11:19

at the very least, it seems likely

11:21

that one of the consequences of the

11:23

Chevron decision is that agencies and

11:26

relevant committees in Congress are going to

11:28

have to work a little more closely

11:30

together. It's going to be fascinating to

11:32

see. I think both the Chevron

11:35

doctrine now being gone and any

11:37

potential revitalization of the non-delegation doctrine,

11:39

a similar related doctrine, which we

11:41

could see next term, there's a

11:43

pending cert petition queuing it up

11:45

pretty well. Both of those could

11:47

potentially lead to more incentives for

11:49

Congress to be more explicit in

11:51

its statutes. If Congress in

11:53

fact does not want judges to be making these

11:55

calls, they can spell it out in a lot

11:57

more detail and they can absolutely have people

12:00

from the executive branch come over and

12:02

help them write out the laws. So

12:04

these gaps don't exist when the laws

12:06

are passed. And also I think it's

12:08

important to remember Justice, Chief Justice Roberts'

12:11

opinion only relied on the APA, not

12:13

on the Constitution. So implicitly he's saying,

12:15

look, if Congress doesn't like our

12:18

theory of the APA, if Congress actually

12:20

wants deference, they could just amend that

12:22

language in the APA and say, actually,

12:24

legal questions, there will be deference. So

12:26

he doesn't say that explicitly, but I

12:28

think choosing to rest the

12:31

opinion on the APA rather than the

12:33

Constitution in Article 3 was essentially a

12:35

clever way of saying, look, the ball

12:37

is still in Congress' court. Given

12:40

the fact that this has seemed to be Chevron

12:43

deference, that is, has seemed to

12:45

present to Congress an opportunity to

12:47

write vague statutes and

12:49

then wave its finger in

12:52

the air whenever an agency interprets

12:54

statutes in a way that individual

12:56

members of Congress don't like. Does

12:59

it create an opportunity

13:01

for overburdened courts to

13:04

claim things like, I don't know, void

13:06

for vagueness? Absolutely. Those

13:09

doctrines still exist and Justice Gorsuch's concurrence

13:11

does a good job of laying out

13:13

some of those doctrines, like void for

13:15

vagueness, the rule of lenity in favor

13:17

of criminal defendants when a legal

13:20

question is a close one. And he

13:22

points out how much intention all of

13:24

those doctrines are with Chevron. All of

13:26

those doctrines point away from the government.

13:28

Chevron is the only one that points

13:30

toward the government. So there are certainly

13:32

still, if you want some deference doctrines

13:34

that allow courts to not have to

13:36

push quite as hard on questions, some

13:38

of them still exist, but all of

13:40

the other ones put the burden on

13:42

Congress to be more explicit in the

13:44

statutes if it wants to take away

13:47

an individual's liberty. What's next

13:49

here? You can imagine that there are a lot of

13:51

cases just waiting in the wings for

13:53

a more engaged,

13:55

vigorous treatment by courts.

13:58

Have you seen those?