contention deference does not apply in this case the court should arrive at that result by overturning the doctrine of seminal rock and our deference and its entirety agencies may issue a wide array of rules interpretations even if the best reading of the statute is the issues in this case well your honor we making i'm making that assumption why do we need to reach a broader issue well your honor we think we have the deference because the government asked the federal circuit to do so the government expressly argued to the federal circuit that our deference applies in this case and the federal circuit took the government's invitation to rest its decision on our deference so i think this case does squarely present that question because of the government's own argument before the federal circuit which the federal circuit adopted and that is i believe both the promise of the petition and the question which the court granted was to resolve whether or not our debts were so could you turn to the government's argument where  they they do seem to concede that our is wrong but want us to retain some some reduced or revised version of it why should we do that so to begin with your honor we certainly think the government's argument is better than the status quo and we understand it to be a version of deference under which deference would not apply in this case in the vast majority of cases coming from the veterans court so we certainly think it's a period to what currently exists we don't think though it's the ultimate leave the right answer for a few reasons the first is the most important practical in legal problem with our deference is it is a circumvention of the notice and calm acquirements the congress is imposed generally in the a p a as well as in particular statutory schemes including this one the government's rule still allows agencies to put a film on the scale without i'm sorry but that that's not quite true i don't think that here it was an issue of them trying to avoid notice and comment new it legal issues arise normally in adjudications and that's what happened here it's not like they should have anticipated that they needed to be more specific about this until the issue presented itself in a case and they reasoned an answer and they gave an answer so the question really is not one  that in all our deference cases are we talking about the need to give notice and common time you are i agree with all of that which is to say the agency can do these things it can be precedential with respect to the agency it can bind future agency adjudicators the only question is for that agency activity to also subsequently have legal binding effect in court what did congress intend the procedures for the agency to undertake one you know there are certainly limitations on one our deference applies but the maintenance of our deference means that there are a range of cases in which the agency's views that did not go through notice and comment did not provide the public safeguards still will have binding effect on the courts and it's that range of cases that this is one of which we think is the ultimate problem with our deference and why the court should depart from that doctrine will likely only with some degree in it's a matter of debate how much of a degree but only with some degree of sanction by  by the court right at least the court has determined that the agency's interpretation is a reasonable one that's true your honor but what happens in cases like this is that regulated public is not able to participate in the underlying law making process that leads to the ultimate rules and that is not just some speed bump on the administrative process this matters as a practical matter a great degree and i think one example that can offer is at footnote four of the government's brief the government recognizes the just two months ago the a made substantial changes to this regulatory scheme via notice and comment rule making we went back and looked to see what happened in that schema what we found was the v a issued a notice a proposal proposed rule making in august of two thousand and eighteen the v a said here's the existing regulation here the several changes that we think we should make to it here's the text of what those changes will look like regulate public what do you think about this they got comments from all over including the vietnam veterans of america the paralyzed veterans of america the national organization of veterans advocates and others then in january when the v a released its final rule we went and counted it made forty five material changes from what it initially proposed to do to what it ultimately did in the regulations in response to the public comments those forty five changes mattered quite a great deal because the regulated public was able to participate if we searched that it was a practical matter if you read he is very i mean there are hundreds of thousands possibly millions of interpretive regula making i think the answer was seven years ok and i think a lot of where maybe more quickly but what you're doing is saying instead of paying attention to people who know that but rejecting it if it's unreasonable decide i mean i want to parody it but i mean this sounds like the greatest judicial power grab since marbury vs madison which i would say was correct who decide and what it thinks the best policy is rather than what the best are you wrote also read everybody's cited them here all these studies that show what you say is a problem can be sometimes a problem but rare and that the judges have a lot of power to reject reasonable rules in appropriately considered rules they didn't think about it rules that change position rules that are not clear all these interpretations you don't have to take our literally and later cases have not and so do you what is your real objection to taking those later cases and saying of course judges are in control of course they reject what is on a reasonable of course they reject what is inadequate be considered of course they reject things that are just a change without explanation but in general recognize that the f d a knows more about moya teas than you do judge seven years on or three years or two years on each of the million interpretive rules by the way they'll just go to adjudications where we have even less control but you know i think what the a p a reflects is the balance this court recognized in pres that agencies have a choice agencies can engage in and to part of rules and interpretive rules have that flexibility and expediency they're faster to implement and they bring uniformity to agency actions and consistency to agent mr hughes do you think the f c c knows a lot more about the meaning of the word relevant than federal district judges no your honor i think that's a straightforward question of legal interpretation that federal district judge as you know why fifty six d or five fifty four d which is the separation of functions provision  and look it up and you will discover why you know why because nobody in the f c c really knew how to do rate making and they had to talk to their staff ok so you think the f b i and the judges know about the same amount  i think that the exception for right making is precisely our point which is to say when congress has provided agencies authorities to act in a particular manner and is given agencies that delegated authorization we agree that that's an area in which agencies can exercise their delegated authority if it's been provided the individual raids i mean and changes in the rates and changes in the conditions of the railroad cars and and acting under their millions we know there are millions what so how do you propose to deal with those generally apply and that default rules i'm saying as a balance between interpretive rules that are easier for agencies to promulgated that have a real effect with inside the agency on the other hand notice and comment rule making it does require more for the agencies but it provides important safeguards for the regulator public if al gore were overruled would an agency's interpretation particularly in areas requiring a great deal of scientific or technical knowledge should be entitled to no deference by a court and i think if our were overturned skidmore would apply in skidmore's this court has articulated has exceptional importance particularly in areas where an agency skidmore skidmore deference is there's really no deference because it  applies only when it's persuasive which is true of any argument well in the context of a highly technical or ridiculous statutory scheme where it's not the ordinary business of judging like the meaning of relevant but something like act of my duty and the f d a can explain that it's broad scientific consensus to a court is going to arrive at a different result from the agency the court needs to have a pretty serious reason as to why it's doing so it has to articulate real rational reasons on the record as to why it is rejecting the agency's admitted authority over particular scientific and technical areas so skidmore does show the respect that's due accordant branch of government we think that's the appropriate alternative solution mr hughes may i ask you about starry decisis speakers you're asking us to over rule two decisions hour and some in iraq and really ten or twelve more over the past half century where the court has talked about our deference or seminal rock deference and what is the basis for that congress could have done this at any time congress knows that this goes on congress has repeatedly acted in this year and shown no interest whatsoever in reversing the rule that the court has long established so why is it that overruling is the appropriate course here a few answers your honor but to begin with i don't think there's distance with the government on that point because under the government's test our deference in the case of our the courts should not apply deference under the government's view there needs to be a principle where now you know there might be a problem of a lack of adversarial ness here but asking you i can also ask the government but i'm asking you so setting aside the government's position would require overturning a dozen cases on its own to move to the point i think star decisive has substantially less effect in circumstances where first it was an underlying judge made  and not something that was statutory constitutional interpretation of its origin and so i don't understand that you know what what we look to is could congress have changed this if congress couldn't have changed that that's a reason for us to change it but of congress could have changed it which congress could have done any time within these past however many decades that's a reason for us to say you know we don't think the we should step in where congress has not well you know i think that was true in  pearson and wayfarer and other cases the courts decided where the court recognized that congress could step in and change the rule but the court has repeatedly said in those cases that when the underlying issue stems from there there aren't very many of those cases and we take it super seriously when we do and we need to i mean we use do and we need a good reason for it so what's your good reason good reason i would put twofold first started aside supplies with substantially less force because this is not a doctor under which the public can rely in fact it injects considerable instability into the legal reliance is a kind of plus factor and we can talk about reliance either way but i mean usually we look to something terrible that's happening this is unworkable this is an anomaly in the doctrine it no longer has any support in the surrounding legal landscape something like that this is grievously wrong that we can't stand to live with it anymore do you think our rises to that level i do your honor and b to begin with our did not have any underpinning when it was first announced it's never been reconciled with the a p a and the practical has any underpinning its underpinning is obvious its underpinning is everything that justice pryor talked about its underpinning is agency expertise its underpinning is is it is and is an idea that judges are far less suited to make these kind of minute decisions of agency policy than agency decision makers are you know and i think it's just impossible to reconcile our deference with the judgment that's reflected in the a p a that when an agency is going to put on its policy making which undoubtedly the agency can do there is an ability for the public to be able to participate in that process and shall determine the meaning or applicability of the terms of an agency action if you're relying on there's just one thing missing one thing missing and that is it doesn't say how you do it and by the written two or three years later i can't remember exactly when it was adopted but wouldn't somebody have said something about it if in fact those words were meant to change but was pretty well established law at the time the i don't think that there's any prior cases that they intend to change i'm not saying perfectly but to a considerable degree and by any way seminole rock is not there and so we have both the language which say it says shall determine but it doesn't say how to determine and in addition you have the report which i agree with you says nothing that i'm not sure that that cuts in your favor but your honor if we look to the attorney general's manual of one thousand nine hundred seventy as you know lou that actually i think cuts strongly in our favor because that explains the interpretive rules do not have the perspective force of law the court relied on that manual for thirty one of us are some court decision which is carr the judge has a lot of authority to say this reg is no good but he doesn't have to ignore what the agency said and after all the agency knows about lawyers or whatever it is and we don't want to hear we do not believe that the court needs to ignore what the agency says i think we think it warrants respectful consideration for reasons of in our branch comedy in the recognition that agencies do have technical expertise we don't dispute any of that the only question  you know everybody's talking about this being the rules and seminal rock and our but i go back to cases in the early eighteen hundreds and and one and i just pick one of eight where the court said the foregoing construction being the one adopted by the departments of public land soon after the act of eight hundred thirty two went into operation we should feel ourselves restrain unless the error of construction was plainly manifests from disturbing the practice prescribed by the commission of the crown land office and i have a series of other cases throughout the eighteen hundreds where the courts were basically talking about you take the interpretation of the agencies unless some manifest error was present so sturgeon an hour are not more recent manifestations they're based on fairly understandable principles number one agencies have expertise my colleagues have talked about that too they are also part of that and ministr and often have a better understanding of what the needs are under that regulation and three in some ways regulated parties need to have a starting point  understanding how their conduct will be viewed and if you tell the world the agencies are going to receive this generalized skidmore deference that justice kavanagh spoke about as no deference essentially persuasiveness really isn't then they don't really have a starting point to understand how to conform their conduct because they have to wait until thirteenth circuit courts rule on an interpretation of a statute before really understanding what they have to do that last point is one that troubles me which is regularly con parties should know where to start and the best people who could tell them is the agency who is responsible to the public for having sounded chair pretty reasonable interpretation thank you i'd like to respond both to the point about the history as well as the stability point to begin with with your honor's initial point about the underlying history i agree if we look at prior to the a p a there are cases that the suggest in the statutory context that  department or agencies interpretation of the statute deserves binding deference but in the a p a congress decided that there needed to be procedural protection to safeguard the interests of the public through notice and comment rule making to provide the public the ability to participate in that l making function that happens within the agency that was one of the critical innovations of the a p a that imposed on past practice as a matter of congressional direction and we think that's what's lacking here and i'm so excited to get back to the a little bit to the starry decisis question i think the issue depends at least in part about how much of a change you're making and one of the things i have trouble getting my my arms around is if you start with our and recognizing the limitations on our that you know that have a narrowed to the point where it does have substantially less practical effects today than it does previously but i will say our is still used in a way that injects in inconsistency in instability into the legal system that i believe also response just so suppose it depends i mean it depends on the agency it depends on the rule it depends on the the court i mean some point you're playing out if you consider the range of reasonableness and you know the confidence that a court has that the agency is not found itself within those bounds is going to vary greatly from case to case the courts are going to take a more careful look in some cases than they are in others and maybe that's that's part of the problem but i guess i'm not quite sure that i understand what you're saying when the rules have the force and effect of law when they're subject to judicial review within a particular range and it's really quite imprecise said maybe that's the problem but your honor i do think that imprecision is quite the problem but is long as our in some iraq remain that suggests that there will be a range of rules i think it narrowed set of rules but some rules that if they make it through the gauntlet of our in some iraq do have the perspective force of law without going through the procedures that congress identified that need the that the agencies should undertake to have that force effect of law and i think this case is an example i'd point the court to another case recently that  highlights the instability it's a decision on bond decision of the ninth circuit the marsh case that was decided in september of two thousand and eighteen about the fair labor standards act and how the tip credit works for employees that sometimes work  and sometimes don't well the bank might circuit decided that case on the basis of our deference in reliance on that then binding department of labor interpretation it was not six weeks or seven weeks later that the department of labor rescinded the interpretation of the unites circuit on bank rested on and now the lower courts are having to figure out is the ninth circuit's on block decision still binding interpretation of that regulation and when they're on the bus and the court the think parties could potentially advance arguments along those lines your honor but i don't think that it increases instability any more than exists in the status quo when those decisions are already subject to revision by the a jury your argument is the notice and comment solves everything right  i think notice in common is the scheme that congress implemented into the a p i the words on this issue would go away if the agency did notice and comment for the guidance that oil and prospect of lee what our argument would would lead to is an area where there is far more prospect of stability because once explanations making it hard to change regulations that have gone through notice and comment do you have a reaction to that because that may be one of the reasons that has pushed them into the more guidance rather than notice and common the first place where you are i think notice in francesco mr chief justice and may it please the court some of the rock deference raises some problems and some applications but it's been on the books for decades it has significant practical benefits it's practical problems can be addressed by reinforcing reasonable limitations on the dock i therefore like to address two key points first in its core applications like seminal rock itself where the agency provided public notice of it consistent interpretation it has significant practical benefits it promotes national uniformity predictability and political accountability because the rule is subject to multiple reasonable interpretations the choice of which one to adopt is made by a single more politically accountable agency rather than in dozens in present perhaps hundreds of district different district courts across the country sco is as i understand it nobody low for us alive is willing to take our literally and it's just a matter of how how much revision to it we've already made is that enough how much further should we go or should we just give up on it altogether and you're asking for us to keep on going and as i understand it there is six elements of your test we have to decide whether the stat is regulations ambiguous whether the interpretations reasonable whether it's consistent whether was made by someone at a high level whether there was fair notice and whether it was made by somebody with expertise is that a recipe for stability and predictability in the law or is that a recipe for the opposite no i absolutely think it is and it's a workable standard your honor i think our principal limitations are can are consistent with existing law though perhaps perhaps not identical to the requirement of genuine ambiguity is really what we think this court cases have always required although there is language that we think ought to be replaced with the genuine ambiguity people fight over whether there's ambiguity and what ambiguity means they fight over what reasonable miss me as they fight over  consistent is consistent and for the life of me i don't know how high a level a person has to be before we're going to defer to him or how much notice is fair or how much expertise counts i'm i'm with justice barr i'm way to use but the people i think have the most expertise on what relevant evidence is pied john cain federal district judge of about forty years not not not an agency and under the rule you propose every agency could define relevant evidence differently knowing what is and what is well and if they have enough expertise we're going to we're going to get on that road and i guess i'm just wondering at what point does this whole edifice just fall upon itself or your honor it lawyers will will enrich themselves and do well with this kind of test but h behave and your honor there's a lot built into that question but what i'd like to bring the focus on in answering it is our strong interest in preserving seminal rock in its core applications where we actually think it has a significant amount of benefit to regulated parties because you're right there is a lot of disagreement amongst judges as to what a reasonable interpretation is the court said earlier this term reasonable jurist can look at the language and acting in good faith come to different interpretations one of the virtues of seminal rock is that when you're facing multiple reasonable interpretations you vest the decision making authority excuse me in a single party rather than multiple courts and that's actually of a benefit to regulated parties because they don't actually have to litigate that thing in multiple courts across the country on why in a number of on the on that i i'm sorry but you know you'd say you keep saying how much of a benefit it is for regulated parties and their reliance interests private reliance interests and i must say i cast a skeptical eye when the government is is is worried about private reliance interests and every private party before us says their interests in stability would be better served by by eliminating this rule altogether and it's not just the chamber of commerce it's it's the farm bureau it's the national lawyers in engage with the immigration system every day and are faced with claims of our deference for single member decisions and to be i a that unreasoned and it's the veterans for us the american legion the lawyers who represent veterans every day before the veterans courts who are outraged by our and say it doesn't serve their reliance interests and it provides highly unstable rules that they have to guess at all the time why should i credit the government's protestations that it is serving private realize interests well your honor i think that it benefits both those private reliance interests and there are a lot of private reliance interests that aren't represented here before the court as well as interest in stability and political accountability but if i could sort of use an example to illustrate the point suppose you've got a rule that is genuinely ambiguous it's subject to multiple reasonable interpretations there are a couple of ways to go you could do notice and comment rule making that takes a very long period of time in the meantime there are two things to do you can litigate the case in dozens of district courts across the country and hope that you can convince all the courts to reach the same conclusion or you can defer to the agency's reasonable choice amongst what is by definition reasonable alternative definitions and we think that is the benefit to seminal rock in the face of those multiple reasonable interpretations your vesting decision making authority in a single more politically account is already judges disagree all the time though on the threshold question of whether something's ambiguous to begin with and that creates a whole side show here and one of my broader questions is why can't the government just do notice and comment you said it takes a long time and that may be a problem with some lower court impediments to notice and comment and share that concern but if notice and comment were more efficient why not just do notice and comment so there are two parts to that question first on the reasonableness and degree i completely take your point that judges can come to a different conclusion as to what is ambiguous and readings than there is on pinpointing the precise accurate theoretically correct reasoning so seminal rock reduce there's a large amount of uncertainty in that respect as to notice and comment look we take the law as it is as it's handed down to us by this court and other courts and as it's handed down notice and comment rule making is a cumbersome procedure that doesn't mean it doesn't have benefits it has extraordinary benefits that being said when you're looking at and a rule that is by definition subject to multiple reasonable  study of this issue that the impediments to official notice and common rule making have pushed the government into doing more things in this manner your honor i'm not prepared to say i agree or disagree with that i certainly understand your hono point but i guess the simpler point that i'm trying to make is that given that it is what it is do you happen to know what the average notice and comment rule making is how long it takes your honor i don't know the answer that question i apologize but i i haven't seen notice and comment that receive forty five changes so the rule is still the use that is a comment is still being used oh it's definitely still being used your honor and it is a very important process but it doesn't undermine the benefits of seminal rock because while you're going through that period you're facing a rule that by definition is ambiguous and you've got to figure out what i think you think that one of is a practical matter one of two things happens  o judge gets deeply into the question before him or her and does the work and comes up with something that looks like the right answer and once you've done that everything else looks pretty unreasonable or the starts looking at it and flipping through and said boy there's a wide range there could be this could be that and you defer to the agency now if i think that that's what happens as a practical matter which will should i adopt your honor i think you ought to adopt  ours because we are because we actually place and in ours you mean yours or our that is the position of the united states your honor and that's because we really do put a lot of emphasis on that first requirement of genuine ambiguity we do think that courts should you think vote the judge ought to do is do all the extensive amount of work and come up what looks to him or her as the right answer i think what the judge needs to do is an extensive amount of work at the front end to determine if there is in fact genuine ambiguity within the language of the little itself much as like it's required to do under several but the problem is the problem is that the judge judges could come up with an interpretation and says the agency's interpretation of the regulation is wrong and this is a really important target taishan is real facts on many people and it's wrong but nonetheless rule for the agency under your theory because an under the chief justices question because there's some ambiguity in and therefore defer to the agency even though the judges might unanimously think it's wrong and doesn't that trouble you know your honor because again i don't think that is quite the nature of the i think that there are lots of data i think that i disagree i think that's what happens in judicial conference rooms and i'm not going to obviously question will she has the point i don't think this is the i don't think the government's reading is the best reading but it's officially in the u s that all rule for the government that happens so so i guess on big cases so i guess i have a couple of response to that first of all in our search for what the best reading is i think that often the agency's interpretation is highly relevant to understanding what the best reading is of a complicated regulatory regime secondly i think it is often the case that there is it is not clear what in fact the best reading is when you are facing multiple reasonable constructions and that again is the virtue of seminal rock in those court cases when you're facing multiple reasonable constructions and you have the benefit of the views of an agency that's administering a complicated regulatory scheme you vest the choice on which one to pick in a more politically accountable agency rather than having to fight it out in different courts across the country because different judges are going to come to different conclusions as to what the most reasonable directly best understanding of a particular rule or regulation is should we be concerned about the fact that either overruling our and seminal rock or taking your position will have on cases in which courts have interpreted regulations based on those principles and now whichever course we take those will be it's far less of a concern under our rule because under under the united states rule because under my friend on the other side's position every single regulation that's currently on the books whose interpretation has been  under seminal rock now has to be related gaited a new well so i said no i don't understand that response because it seems to me you've made the point that there are going to be a great many regulations where the outcome would be the same with or without our you make that argument in this case and so we'd have to know how many of those there are we'd have to know how many would be problematic even under your to your modified test and we don't know that a lot of these regulations get supplanted in statutes disappear and get modified in those would have to be accounted for to so the end of the day i didn't see anything in the briefs other than rank speculation on this point well i think that one thing that doesn't require speculation is to know that their position would be more disruptive than ours because there's would require everything to be revisited even under the most aggressive interpretation of our view it wouldn't require everything to be interpreted but if you look at this court's cases and i'm not representing them as a random sample but if you look at them as a sample i don't think our rule would be particularly disruptive of at all if you focus on our requirement of inconsistency we've identified three of this court's cases that arguably applied seminal rock in the face of inconsistent interpretations in each three of those cases the application of seminal rock appeared to be make weight in other words the court first explained why the agency's interpretation was likely the best one but then applied seminal rock in order to confirm that decision so i think our position would be significantly lot less disruptive than my friends on the other side generally a similar this has come up about fifty times and i'm curious the frank thought there are no very democratic but there is some responsibility and there are one group of people who are still less democratic and they're called judges so if in fact you believe that the best solution of where there is real ambiguity and you just don't know the best solution is in our country a democratic solution group maybe the agency is the institution whose closer to it they are disposed to say yes certainly i would say yes certainly i would say yes in the context of some in iraq itself because that really does underscore our key point seminal rock only applies when a rule  is genuinely ambiguous in that after applying all of the ordinary after applying all the ordinary tools of construction it's subject to multiple reasonable readings and in that context we do think it promotes democratic accountability by besting it in a more political you have no problem with justice kavanagh's use of the who are bad interpretations because bad interpretation sounds to me like an on reasonable interpretation can only be bad if it's on bad interpretation that's not consistent with the statute or or not consistent with either the text the context etc so if it's reasonable then there has to be a basis for the interpretation of the statute i think i generally agree with that yonder and to that i would add two points i think that when you're talking about interpreting complicated regulatory regimes the agencies understanding of it often is going to be highly relevant to determining what the and i'm going to put it in quotes quote unquote best interpretation is and as i've already said if you poll fifty judges on a complicated regulatory regime you're often come to come up with multiple different best interpretations and that again underscores the benefit of seminal rock in those core at you and you agree i think with taking footnote nine of chevron using all the tools of statutory construction and before you clue that the ambiguity remains in this context i said that i absolutely think that is part of the then when you do that you don't usually women a or when greatly reduce the number of cases where there are remains an ambiguity not only that but you also reduce the range of ambiguity because a reasonable interpretation have to fall within the zone of ambiguity that remains in the rule after you apply those ordinary tools of construction and so that's why and i know my friend on the other side didn't really get into the separation of powers issue but that's why we don't think that there's any substantial separation of powers question here because the agencies are in fact it's subject to substantial control by both congress and by the court general and i ask about a slightly broader version of justice alito is question he asked about reliance but thinking about all the starry decisis factors when i started asking mr hughes about them he immediately said well the government has just as big a problem on those factors so does that absolutely not your honor because what we're arguing for is that seminal rock be retained in its core applications which frankly we think are the areas where it is the most important both the regulated parties and agencies and it is always more faithful to start to start decisis principles to retain a doctrine at its core while perhaps imposing limitations on the edge that simply recognize that in the course of practical application practical issues have been identified and that's why we think that you ought to reinforce the requirement of genuine ambiguity you ought to reinforce the requirement that you wouldn't apply it to inconsistent interpretations and we don't think the agency should get some in iraq deference for secret private interpretations it ought to give public notice of its interpretation as it did in seminal rock itself but we think that when you have those principle limitations you've largely addressed the practical problems of seminal rock and what you're left with in our view the practical benefits of some in iraq so even if you think it was wrongly decided as an original matter it's got significant practical benefits it's practical problems are manageable it's been on the books for decades and this is something that congress could fix if it believed that this court has missed gauged legislative intent in adopting the seminal walk doctrine you said give public notice that's one of the requirements for and yes i think the other side would say just add a comment your honor and i think that's exactly their position the seminal financial and what is wrong with the seminal feature of seminole rock is of course that you don't require notice and comment and i think that your your question gets back to the colloquy that we had before where you're going through that notice and comment process you're simply left with an enormous amount of uncertainty because you're left with a rule that everyone has already concluded is on its face subject to multiple reasonable interpretations and to say that the alternative is to have multiple courts across the country struggle look at it mr princes keep telling us about the benefits of that but the benefits of most incumbent are among other things people will know prospectively what rules govern them and not be sideswiped later by a bureaucracy you can call a democratically accountable if you wish right i don't know people might disagree at any rate a bureaucracy coming up with an amicus brief or a single member opinion in a b b i a decision involving an immigrant or in this case a veteran seeking benefits in the middle of a case is confronted with a new interpretation never seen before right those that's the reality and i'm not sure how that serves democratic processes or the separation of powers as opposed to having an independent judge the one thing you're going to know is you can have an independent judge decide what the law is in your case consistent with a statute that says an independent judge shall decide all questions of law that seems to be a significant promise especially to the least the most vulnerable among us like the immigrant like the veteran who may not be the most popular or able to capture an agency the way many regulated entities candidate well your honor there's a there are a few things built into that let me start by saying that i think that our public notice requirement ensures that regulated parties that the agency can't rely on secret interpretations so make sure that its interpretation is out there in the public and so hours go on there are you that you are asking us to overrule our itself as that's what happened in our there's no no your honor i guess i guess i would probably argue that i think an amicus brief filed in this court given the high profile nature of what's good enough court satisfies the public notice requirement but because it puts the world on notice that this is in fact the agency's position but to go to your larger point i think is this court held in the martin case seminal rock deference refract flexor suit litigates the against the government for years for his disability benefits as a veteran of the united states is on public notice when the case from bribes here and you file an amicus brief well your honor we are much less concerned with the outcome of this particularly case than we are with preserving some in iraq in its core applications but to go to this particular case remember the a has a system where the v a itself is charged with assisting veterans through what can sometimes be a complex process and here it was the v a itself that identified the potential reconsideration pathway that would have provided the veteran with the benefit of retroactive benefits and the v a itself that also explained why it didn't apply to the veterans so i think in this particular context of this case this was a very fair process that being said we aren't particularly concerned with this specific case as we are with preserving seminal rock deference in its core applications where we do think it has the most significant amount of benefits in writing if we were writing on a clean slate what would you say is the basis for any version of our some rock isn't based on some kind of delegation theory or what is its what is its conceptual base i think the best conceptual basis is what this court gave it in the martin case and that's where it said that seminal rock rests on a presumption of legislative intent that congress presumed that courts would defer to an agency's reasonable interpretation of its otherwise ambiguous rules as part of its delegated rule making authority now i think that members of this court may debate whether that was or wasn't an accurate understanding of legislative intent but this late in the day i don't think that's any longer the relevant question because it's been on the books for decades and usually those kinds of presumed legislative intent are based on their views right there based on a view of course congress is presumed to want to the agencies to do this because fill in the blanks is it expertise is  accountability is it uniformity is it a combination of those things i think that's very i think all all of the above are are fair considerations of what those types of presumptions are often based on and also reflects the  fact and this was the second portion of the point i was going to be making on the separation of powers issue is that one an agency acts pursuant to a lawful delegation from congress and we can fight over what that means but as long as you got a lawful delegation from congress at the end of the day it doesn't really matter what the agency is doing looks adjudicative looks executive or looks legislative because in every one of those instances the agency is effectuating executive power it has to be effectuated executive powers has made clear you may not care about the outcome of this case but we're going to have to it some point and if we overrule our we could just kick it back ok but if we don't let's assume we were to accept your approach what did the district court what did the court below not the district court what that the court below do wrong how would you correct it how would you advise us to advise judges to approach the hour question sure write my opinion for me on right ok a couple of points your honor if i could first say i didn't mean to say that we don't care about the outcome of this case the the assumption is that interpretation should favor veterans so deal with all of sure sure so we do care about how the specific case comes out but in terms of how it would apply to this case at the end of the day i actually don't think the federal circuit should have applied seminal rock deference to the v a board's decision in this case for two reasons first and this is one you might well disagree with us on we think we had the you disagree with you on that because it is the usual interpretation of relevant evidence found in the federal rules of evidence so i'm not crazy so i'm going to my that would be my second point would be help address that assuming that you've got some ambiguity in what would otherwise trigger seminal rock under seminal rock and chevron you only defer if the determination reflects the considered judgment of the agency as a whole and given the way the v a board is structured there are something like ninety eight members of the v a board they issue i think over eighty thousand decisions a year there proceedings are ex parte they're all individual members decisions they're not made in panels a i think on and none of them have any presidential value given that suite of factors we don't think that any individual board decision by the v a board reflects the considered judgment of the agency as a whole house and as it have this court and and  courts across the country judge agency decisions as to how considered they are no your honor that this is that it isn't a bit of asking of a bit of inner branch disrespect i don't think so at all you aren't exactly what this court said that the rule was in the meat case when you're when you're undertaking chevron knowing me actually knowing meat we said that if congress didn't delegate in those cases here we're way past that one factor of four or five of your six part test but i think and when a judge has to decide how considered yeah the agency decision is right but i think in need both the majority and the dissent agreed that you wouldn't get to chevron deference unless the decision reflect the considered views of the agency as a whole they just disagreed over whether or not the particular decision issued in that case the customs letter reflected that considered judgment so i don't think that's an innovation that we're asking for that's simply an elemental aspect of it but to go to your the other parts of your question your honor when you get down to the application of the veterans canon the court of course didn't grant search your on the application of the veterans canon but assuming that it applies in the context of regulations we don't think that it would apply in petitioners favor here because we believe that that is a tie breaking canon that only applies when two interpretations are equally plausible and here we think that our interpretation even if you don't think it is the theoretically best one we think that it is more plausible than petitioners and therefore you wouldn't get to the application of the veterans can but again our principal concern on behalf of both the v a and the other agencies throughout the united states is in preserving seminal rock in its core applications because that is an issue that transcends the facts of this case so if i'm understanding your no not notice it the agency not innes not not at all tell me when they count and when they don't not at all necessarily your honor but i think what this court's decisions have been clear about across the board is that whoever is whoever issues the decision on which we're seeking deference has to be able to speak for the agency as a whole and different agencies have different ways of doing that we don't think that given the suite of factors at issue specifically with respect to the v a board meets that standard because there are so many different in disha suggesting that an individual board decision doesn't reflect the considered views of the v a as a whole as to the meaning of its regulations thank you general three minutes mr you mr chief justice and like to begin and we think the general for the clear recognition here that deference does not apply in this case or other cases like it we certainly agree with that conclusion but we still believe that the appropriate resolution of this case is to overturn in our in their whole because it's critical to restore the importance of notice and comment rule making that congress thought was a critical check to bring democratic accountability to the agencies we certainly agree that agencies have a very substantial role to play in policymaking but congress made the judgment that the way that that is done in a democratic way accountable to the population is through notice and comment rule making such that the regulated public can compromise their views in that also accounts with the theoretical underpinnings of how this court has explained that deference can be appropriate to agencies there are two things that are required first a delegation of the subject matter but second that the agency acts in the particular manner that congress has delegated the agency to to act within in this context as we've skidmore in the event that there is some sort of emergency situation the a p a contemplates that for allowing for regulations pursuant to the good cause exception if the agency can show that there is something that is akin to an emergency that would warrant something like a preliminary injunction in court so congress has provided for those sorts of emergency situations when the delay in the regulatory process would actually pose some kind of practical problem but to turn additionally to the practical problems that exist in our deference as the chief justice was explaining i think you get a factor result regardless of how courts apply it if courts apply it as they did in this case to say we don't have to do to really do much statutory or textual construction to determine if both sides have an argument that looks plausible on the page we then we defer that is not a particularly satisfactory answer by contrast of course go far down the road of step one and do the interpretation but then ultimately decide as many courts have had to do that although we think the agency has it wrong as a matter of interpretation we still have to defer to the agency because it's close enough that's also a not a satisfactory answer by the way you're this the general said if we adopt your interpretation and our deference total that every case that relied on our deference would be subject to new litigation well you know i think as i explained with the marsh example earlier all those cases are already fundamentally was there so then a come to court for courts to decide if that's true or not every losing party under the prior hour difference litigation is going to come to court to argue that it under its reading it has the better reading it could be shut down but it's going to still argue that if i mean yes i don't think that increases any is to be instability in the aggregate because the existing circumstances completely unstable however if prospectively our does not apply that is what ultimately leads to stability because interpretations of regulations would just be like interpretations of statutes that would have binding effect absent the agency or congress going to the process that's constitutional in statutorily prescribed for amending the underlying next thank you counsel general but the case is submitted