RELENTLESS, INC., ET AL., Petitioners, v. DEPARTMENT OF COMMERCE, ET AL., Respondents
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Ketanji Brown Jackson, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Roman Martinez, Elizabeth B. Prelogar

John G. Roberts, Jr.: We'll hear argument first this morning in Case 22-1219, Relentless versus the Department of Commerce.

Mr. Martinez.

Roman Martinez: Mr. Chief Justice, and may it please the Court:  For too long , Chevron has distorted the judicial process and undermined statutory interpretation.

It should be overruled for three reasons.

First, Chevron violates the Constitution.

Article III empowers judges to say what the law is.

It requires them to interpret federal statutes using their best and independent judgment.

Chevron undermines that duty.

It reallocates interpretive authority from courts to agencies, and it forces courts to adopt inferior agency constructions that are issued for political or policy reasons.

In doing so, Chevron blocks judges from serving as faithful agents of Congress.

It mandates judicial bias and encourages agency overreach.

And by  removing key checks on executive power, it threatens individual liberty.

Chevron also violates the APA.

The most straightforward reading of Section 706 requires de novo review of legal questions. Congress put constitutional and statutory interpretation on equal footing, and it required independent legal judgment as to both.

As Justice Scalia wrote, the APA's text contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes.

And, third, this Court's only justification for Chevron is the implied delegation theory, but that theory is a fiction. There's no reason to think that Congress intends every ambiguity in every agency statute to give agencies an ongoing power to interpret and reinterpret federal law in ways that override its best meaning.

In this case, the agency misinterpreted the MSA to force struggling fishermen to pay up to 20 percent of their annual profits to federal agents.

The government says that even if all nine of you  agree with us that the agency's construction is worse than ours, you should nonetheless defer to that construction and uphold their program under  Chevron.

That's not consistent with the rule of law.

If we have the best view of the statute, we should win this case.

I welcome the Court's questions.

Clarence Thomas: Mr. Martinez, how much deference is in tension with the judicial role?

Roman Martinez: I think it's very much in tension, Your Honor.

Clarence Thomas: No.

How much would it require?  I mean, your argument is that Chevron deference is problematic.

But how do we determine how much deference is too much deference?

Roman Martinez: I think you've certainly crossed the line when you have a rule that says that we're going to allocate the interpretive authority from  -- from Article III courts to an agency.

And so, when  -- when you've got deference that amounts to that, which is what Chevron deference is, then I think you've -- you've crossed the line because what you've really done is --

Clarence Thomas: I think what I'm trying -- what I'm asking is, how do we know where the line is?  We show deference.

You  -- there's Skidmore deference.

Roman Martinez: Sure.

Clarence Thomas: We are deferential in fact finding, et cetera.

So I'm just trying to  determine whether you're saying that we -- if it's not de novo review  --

Roman Martinez: Right.

Clarence Thomas: -- without any presumptions or deference, then it's problematic.

Roman Martinez: I  -- I think deference becomes problematic when it requires a judge to say that the law means X when, really, the judge thinks the law means Y.

I think Skidmore deference is not problematic because it doesn't require that.

Skidmore deference essentially says  --and we would be very comfortable with Skidmore  --that 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 knowledge of the policy context surrounding the statute and its implementation.

Of course, courts should pay special attention to what agencies say, but the age ncy ultimately has to bring its expertise to bear in a way that's persuasive.

And if the  -- the court isn't persuasive, if the court thinks that the law means X even though the agency thinks the law means Y, then the court needs to go with the best interpretation of the statute, just like it does in every other  --

John G. Roberts, Jr.: Well  --

Roman Martinez: -- area of statutory or constitutional  --

John G. Roberts, Jr.: -- let's --

Roman Martinez: -- interpretation.

John G. Roberts, Jr.: -- let's suppose the statute says the Department of Transportation will set length limits for trucks that are reasonable.

Roman Martinez: Righ t.

John G. Roberts, Jr.: Is that a legal question for the court, or is that a policy question for the agency?

Roman Martinez: I think that  --

John G. Roberts, Jr.: It's a -- the -- the legal authority says they've got to be reasonable.

That's a term that courts apply in many situations.

Roman Martinez: I  -- I think that a court looking at that statute would try to determine the best meaning of the statute, and  the best meaning of the statute there would be that  --that the use of the term real -- "reasonable" confers upon the agency discretion 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 "appropriate" and the question was  --which is similar to "reasonable," in giving the agency a  -- a range of discretion.

But, at the same time, when the agency said, well, we don't have to consider costs in figuring out whether something is appropriate, the court said no, that, as a legal matter, the best interpretation of the word "appropriate" in the context of this statute requires the agency to consider costs.

John G. Roberts, Jr.: Well, 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 delegation for interstate commerce is satisfied when particular --

Roman Martinez: Right.

John G. Roberts, Jr.: -- circumstances are present.

Roman Martinez: I  -- I think that that would be a case if you're -- if the court were called upon to interpret what inter  -- if the dispute was about whether -- what interstate commerce means, I think that would be a classic legal question that would be a legal question for the court.

And I think it actually highlights -- because interstate commerce is probably there because of the constitutional limitations, it highlights the fact that, really, the same rules should apply to interpreting constitutional  --

John G. Roberts, Jr.: Well, I mean

Roman Martinez: -- provisions as statutes.

John G. Roberts, Jr.: -- you could imagine  -- you could imagine situations where the interstate commerce determination is peculiarly fact-bound, you know, trucks transferring loads and -- at transfer points on the border.

Is that in interstate commerce for  each one or not?  And isn't the policy judgment of the agency pertinent in that situation?

Roman Martinez: I think, certainly, the policy judgment of the agency is -- is pertinent in determining sort of the facts because the agency might be on the ground and understand the factual scenario.

But I think there's a  --an important legal component to that question, that in any other context, like, for example, if you were interpreting the Constitution, I think the court would -- would quite reasonably think it's its own job to interpret the constitutional requirement of interstate commerce and would  -- would say -- would give it its best meaning. And I think  --

Elena Kagan: Well, let me give you a  --

Roman Martinez: -- the same approach --

Elena Kagan: -- a few more examples along the same lines, Mr. Martinez.

Is a new product designed to promote healthy cholesterol levels a dietary supplement or a drug?

Roman Martinez: Sorry.

Can you give that one more time?

Elena Kagan: A new product designed to promote healthy cholesterol levels, is it a dietary supplement -- that's a statutory term --

Roman Martinez: Okay.

Elena Kagan: -- or a drug?

Roman Martinez: I  -- I think it would depend on -- on the -- the original understanding of the text of that statute in  -- read in context.

Elena Kagan: You -- you want the --

Roman Martinez: And I think that's a  -- a legal question for a court.

Elena Kagan: -- you think that the court should determine whether this new product is a dietary supplement or a drug without giving deference to the agency, where it is not clear from the text of the statute or from using any traditional methods of statutory interpretation whether, in fact, the new product is a dietary supplement or a drug?

Roman Martinez: I  --

Elena Kagan: You want the courts to decide that?

Roman Martinez: Justice Kagan, I think, with respect to that question or any other of 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 --

Elena Kagan: They do that --

Roman Martinez: -- and would --

Elena Kagan: -- under Chevron. 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 situation in which you're talking where it thinks the law means X and instead it says Y.

If it thinks it means X, under Chevron, as we've understood it and made clear and reined it in a little bit over these last few years, it's supposed to say X.

But sometimes law runs out.

Sometimes there's a gap.

Sometimes there's a genuine ambiguity.

And I  -- I don't know.

In that case, I would rather have people at HHS telling  me whether this new product was a dietary supplement or a drug.

Roman Martinez: So, Your Honor, I think a couple things.

First of all, I don't think Chevron is a doctrine that only applies to tie-breaker 50/50 scenarios.

It's never been understood that way.

You know, Justice Scalia in his famous article in 1989 --

Elena Kagan: It's not a tie-breaker.

There are just some times where you look at a statute and the most honest reading is that there's  -- there's --there's a gap there --

Roman Martinez: But --

Elena Kagan: -- because of the limits of language, because of the limits of our ability to predict the future.

And so who fills that gap?

Roman Martinez: But I  -- I guess what I would sort of push back on is I don't think there's a gap if 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 know, I have 52 percent confidence that X is right --

Elena Kagan: I'll give you --

Roman Martinez: -- 48 percent likely --

Elena Kagan: -- I'll give you another one, Mr. Martinez.

Does the term  "power production"  -- I'm just -- these are real cases.

Roman Martinez: Right.

Elena Kagan: These are  -- these are prototypical Chevron cases.

Roman Martinez: But --

Elena 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?

Roman Martinez: I think same answer as the first hypothetical.

But let me try to -- let me try to sort of give you a different framework for thinking about this problem.

Let's imagine that that statute came to a court before an agency had even acted in the first place.

What would a court do?  Would a court look at the statute  --a statutory term like that that's a hard  -- presents a hard interpretive question and say:  Well, this is hard, it's sort of 52/48, it's kind of close.

I think the law has run out and I'm just not going to be able to decide this.

I think the court would go with the best interpretation.

Elena Kagan: The -- the -- the -- the court might -- the court in that case would have to make a choice.

But, you see, here, the  court can say, you know,  the best option is to listen carefully and to defer if it's reasonable and if it's consistent with everything that we know that Congress has said, to defer to people who actually know things about these things --

Roman Martinez: But --

Elena Kagan: -- to  --you know, to people who understand the way particular questions fit within a broader statutory and regulatory scheme, to people who have understanding of the policies and of the facts that led to this.

I'll give you a third example.

Roman Martinez: Can I respond?

Elena Kagan: And this will be my last one, Mr. Martinez, and it's going to be my fairest one because it's going to be one you know about, which is Chevron.

Is a stationary source in the Clean Air Act  -- does it refer to whole plants or to each pollution -emitting device within the plant?

Roman Martinez: We think that the decision in Chevron was -- reflected the best interpretation, with much respect to Justice Gorsuch's mother's EPA.

We think that that was  the best interpretation.

But -- but can I just go back and I think what you described earlier about listening to the agency and taking into account all those things, our  -- our rule would allow that. That's Skidmore.

I think the only difference between our rule and  --and the Skid- -- what -- the Skidmore sort of approach and the Chevron approach is that after listening to the agency's explanation of all the things that you said, if the court isn't persuaded by the agency that the agency's interpretation is correct, Chevron would say you still have to go with the agency. And that's just like a dramatic thing.

Sonia Sotomayor: But why not? Meaning I -- I think all of the play and disagreement is around the word "ambiguity."  I know that there have been some earlier cases that suggested, if there were two plausible meanings, you went with the agency meaning.

I think we've gone far beyond that. It has to be two reasonable meanings.

Assuming  -- you -- you make an assumption that there is a best answer.

I don't know how you can say  there's a best answer when Justices of this Court routinely disagree and we routinely disagree at 5-4. Is the best answer simply a majority answer?  I don't think so.

Roman Martinez: But, Your Honor, if  --

Sonia Sotomayor: I happen, when I dissent, to think the others got it wrong.

(Laughter.)

Sonia Sotomayor: And they often do. (Laughter.)

Sonia Sotomayor: But putting that aside -- but putting that aside, in those situations, there are two plausible  -- not nearly plausible.

There are two best answers, and the question is who makes the choice or helps you make the choice.

And if the Court can -- can disagree reasonably and comes to that tie-breaker point, and it could be 51/49, it could be 52/53, if it's that close, why shouldn't the person with all of the qualities you spoke about, the entity with all of the qualities, expertise, experience, on -the -ground execution, knowledge of consequences, why shouldn't deference be given to that entity?

Roman Martinez: Justice Sotomayor, I think your explanation of ambiguity just now just proves the problem with Chevron because I think what you said is that whenever there's a case, a statutory case in which the members of the Court disagree with one another, that that's essentially saying the statute's ambiguous because reasonable people can disagree.

Elena Kagan: That's what nobody believes  --

Roman Martinez: Well --

Elena Kagan: -- about Chevron, Mr. Martinez.

As we've described it is you -- you work hard to figure out a statutory problem. You don't say, oh, it's difficult.

Oh, there are two interpretations.

Oh, you know, not everybody agrees with this in three seconds flat.

You don't say that.

You do everything you do, look at the text, look at legislative history if you believe in legislative history, look at context, look at every tool you can, and still there are places where we don't know whether this drug is a -- is a -- is a -- whether this product is a drug or a dietary supplement, and it's best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these  kinds of situations.

And, you know, judges should know what they don't know.

Roman Martinez: I  -- I agree with that, Justice Kagan.

But, with -- with all due respect, I -- I think I understood Justice Sotomayor to be saying that whenever judge -- Justices of this Court disagree about the best meaning of the statute, because, obviously, everyone on the Court is reasonable, that shows that there's an ambiguity.

If that's the test, which I think was the implication of the question, then that can't be wrong.

That's much broader than  --

Sonia Sotomayor: That wasn't  --

Roman Martinez: -- step one.

Sonia Sotomayor: -- my implication. My implication was that using all the statutory tools, you can still come up, using them in good faith, using them, you can still come up with no answer --

Roman Martinez: Well, I think --

Sonia Sotomayor: -- with no clear answer.

Roman Martinez: -- I -- I think you can can come up with no clear answer because some  --

Sonia Sotomayor: Or no best answer.

Roman Martinez: -- because som e statutes are hard.

But I think you can come up with a best answer, and  -- and the reason I think that is because --

Sonia Sotomayor: Best only because a majority agrees?

Ketanji Brown Jackson: But  --

Roman Martinez: No, no, because  -- because, if you had the same statute with the same interpretive question posed to you without the agency having acted, I don't think you would say there's no answer here.

I  think you would choose the best answer.

Neil Gorsuch: I mean, Mr. Martinez

Ketanji Brown Jackson: But, Mr. Martinez  --

Neil Gorsuch: -- I guess I'm struggling to understand what -- what  --what's at stake here given the questions because, as I understand Justice Kagan's hypotheticals, which are  -- are hard ones, that one option would be to say it's ambiguous and, therefore, the agency always wins.

That  -- that's what I understood Chevron to mean at least coming in here today.

Another would be to listen carefully to both sides and provide special weight under Skidmore to a coequal branch of government'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 court would do if  -- if there were no interpretive principles advanced by the executive branch, if there hadn't been some sort of rule or adjudication. Is that  -- is that correct?

Roman Martinez: I  -- I think that's correct.

And I think the difference between the  Skidmore approach that you just laid out and the Chevron approach is just, at the end of the day, once you've considered all the expertise and all the information the agency has to bear --

Neil Gorsuch: Who decides?

Roman Martinez: Who decides?  Who -- is the judge persuaded or not persuaded?

Neil Gorsuch: Is the judge persuaded at the end of the day, with proper deference given to a coequal branch of government, or does the judge abdicate that responsibility and say automatically whatever the agency says wins?

Roman Martinez: Right, even  -- even if the judge is not persuaded.

Ketanji Brown Jackson: But, Mr. Martinez  --

Neil Gorsuch: And then  -- and then

Ketanji Brown Jackson: -- doesn't that --

Neil 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  States upholds that interpretation, we're finished.

Whereas, under the Chevron approach, are we fin ished?

Roman Martinez: No.

Neil Gorsuch: What happens?

Roman Martinez: I think the agency can overrule what the court said.

The agency can overrule what itself said.

I think that's a very strange thing, that in every other area of statutory interpretation, we understand the law to have one fixed meaning and the goal is to try to figure out that fixed meaning, but Chevron by design creates this world in which the agency is -- is -- because there's this zone of discretion, the -- the agency -- and ambiguity, the agency can kind of flip-flop and then force courts to flip -flop with them.

Neil Gorsuch: And I'm struck on that score by the Brand X case, which involved broadband, in which this Court said, okay, agency, you automatically win with respect to one interpretation of the Bush administration, I  believe it was, and then, of course, the next administration came back and proposed an opposite rule.

Roman Martinez: Right.

Neil Gorsuch: And then the next administration came back and flipped it back closer to the first.

And as I understand it,  the present Administration is thinking about going back to where  --

Roman Martinez: That's  --that -- that's exactly right.

Neil Gorsuch: -- where we started.

Roman Martinez: That's exactly right, Justice Gorsuch, and I think it -- it plays up the real problem.

Chevron really is a reliance-destroying doctrine.

Imagine if you're a person or a regulated entity and you're trying to figure out what the law is.

You should be able to rely on the best interpretation of the law and not have to, you know, check the -- the C.F.R. every couple years to see if the law has somehow changed even though Congress hasn't acted.

Neil Gorsuch: And that's the delta between Skidmore and Chevron?

Roman Martinez: I think -- I think that's right.

I mean, Skidmore, I think, would allow for -- for courts to give meaningful  weight and consideration to -- to persuasive opinions by agencies.

The only thing Skidmore doesn't do is require a court to give up its  -- its interpretive -- ultimate interpretive say and defer to an interpretation that is not persuasive.

Neil Gorsuch: Thank you.

Ketanji Brown Jackson: Mr. Martinez, what -- what I'm stuck on is what seems to be an assumption in your argument that every question posed with respect to interpreting  -- interpreting a statute is a legal one.

I see Chevron as doing the very important work of helping courts stay away from policymaking, and so I -- I'd like for you to sort of think of it through that lens and help me understand why, if we do away with Chevron's framework, we won't have a problem of courts actually making a policy decision.

So Justice Kagan gave you a number of examples, and I think the reason why th ose examples are hard or why they're ambiguous or whatever is because, at bottom, they're not asking legal questions; they're asking policy questions.

How is it that, you know, "stationary source" is to be defined?  That's  not really a legal question.

I mean, there could be several reasonable ways of interpreting  that.

And at the end of the day, I think the way I've been thinking about Chevron is Congress has given that policy choice to the agency.

And my concern is that if we take away something like Chevron, the court will then suddenly become a policymaker, by majority rule or not, making policy determinations.

So how can we avoid that?

Roman Martinez: So we agree, obviously, that  --that courts should not be in the business of policymaking.

And I think the whole enterprise of statutory interpretation, when properly 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 has done and find the best  --

Ketanji Brown Jackson: But isn't that --

Roman Martinez: -- interpretation.

Ketanji Brown Jackson: -- isn't that what Chevro n does?  I mean, isn't Chevron, step one, even in this very case, asking the question, one, has Congress made that policy determination?  So, for example, here, the  question is whether or not monitors on the boats have to be paid for 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 be paid for by the owners or the government.

So step one is has Congress in the statute answered that question.

When we say no, everybody agrees that's not in the statute, then we say the agency can make that determination so long as they do so in a reasonable way.

And the  -- and courts sort of police the boundaries of reasonableness.

But whether or not the monitors are paid for is not really a legal question.

Roman Martinez: I think the question of whether or not the law allows the agency to -- to force the monitors to be paid for by private industry is absolutely a legal question.

I agree with you that when Congress --

Ketanji Brown Jackson: But isn't that the same question as to whether or not -- isn't that just another way of saying, can this policy determination be made by the agency?

Roman Martinez: No, I don't think so. I think the difference is, when the -- when the -- when the policymaker, whether it's Congress or the agency, is 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.

Ketanji Brown Jackson: Okay.

So that's the question  --

Roman Martinez: But -- but --

Ketanji Brown Jackson: -- right?

Roman Martinez: No, because, when it comes to a court, the court is not figuring out what the best thing for the world is.

The court is figuring out, well, what did Congress actually want here.

It's --

Ketanji Brown Jackson: But I guess I'm afraid that the court really is figuring out what the best thing in the world is if we --

Roman Martinez: But -- but --

Ketanji Brown Jackson: -- look at it through your lens, right, because, if the answer to the question is, you know, should  -- should they pay for it or not, the agency has a vi ew, and unless we're deferring to that view, I don't see why we aren't overriding the -- the agency's policy prerogative.

Roman Martinez: But the -- the question that the court should be answering is not should agency -- should industry pay for the monitors. The question that the court should be answering is, did Congress require or allow agent  -- industry to be forced to pay for the monitors? And that's a very different question.

That's the difference between law and policymaking.

And I think the whole assumption and the whole understanding of statutory interpretation under this Court's cases is there's a difference between law and policymaking.

Judges are there not to exercise force or will.

They're there to exercise judgment.

They're  -- they're serving as neutral umpires.

They're not players on the field.

Ketanji Brown Jackson: All right.

So how does that --

Amy Coney Barrett: Mr. Martinez  --

Ketanji Brown Jackson: -- play out under your interpretation  --so, here, what  --what is the question we're supposed to be answering?

Roman Martinez: The question you're supposed  to be answering is, did -- does this statute require -- has Congress required -- either required the  -- the monitors to be paid for by industry, or has it given the agency the authority to make that decision?  And I don't think -- I think that is a legal -- both of those versions of that question are legal questions, and the answer is no.

Amy Coney Barrett: Mr. Martinez, can I ask you a question about the line between law and policy?  And I want to ask you in the context of one of Justice Kagan's examples, the dietary supplement or drug.

Where is the line between something that would be then subject to arbitrary and capricious review and something that's a question of law?  Because I'm just wondering whether we could say that the definition of dietary supplement or drug might be something  that's a question of statutory interpretation in the context of the statute, but which category any one thing fell in might be a question of policy for the agency.

Roman Martinez: Right.

I  --

Amy Coney Barrett: Is that possible?

Roman Martinez: -- I -- I think that's right.

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 forget what the other alternative was, those are legal questions.

Amy Coney Barrett: But whether the particular cholesterol -reducing drug fell --

Roman Martinez: Right.

Amy Coney Barrett: -- in one category or the other, I mean, you know --

Roman Martinez: That -- that would be a

Amy Coney Barrett: -- presumably, that depends on how does this function?  What is the mechanism by which it decreases cholesterol?

Roman Martinez: I  -- I think that's right.

But I think it's  --I do think it is important to make  -- retain the sort of legal component of that question and -- and make sure that the courts have authority over that legal component.

Amy Coney Barrett: I want to ask you something about your Article III argument too. You know, Justice Thomas asked 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 with deciding what was the most feasible, most useful, most reasonable.

Well, courts could do that too.

So is that a delegation of judicial power that would offend Article III in your view, to give those kinds of  --

Roman Martinez: No, I think  --

Amy Coney Barrett: -- decisions to an agency?

Roman Martinez: -- I think the way to think about those kinds of -- of statutory provisions would be that the best interpretation of the statute, given the nature of the word  "reasonable" in context, is to confer a range of discretion on the agency.

And so I think a court in that case  -- if  -- if the agency is operating within the range of discretion, that's arbitrary and capricious review.

If the agency is sort of operating at the edges, you have to figure out  where the guardrails are.

That's the legal question.

So, if the --if the statute says, you know, the agency can pick red, blue, or green, then the choice among those three options is for the agency.

But, if you have a legal question like, oh, does pink count as red, that's a legal question.

John G. Roberts, Jr.: Thank you, Mr. Martinez.

How much of an actual question on the ground is this?  I saw some study that said we haven't relied on Chevron for 14 years.

And Judge Kethledge has written  -- he's been a judge for 10 years.

He's never invoked Chevron step two. You know, judges are used to deciding things, and when they get around to doing it, they tend to think what they've come up with is not only the best answer, but it's the only answer.

(Laughter.)

John G. Roberts, Jr.: And  -- and I just wonder how often this comes up?

Roman Martinez: I think it comes up a lot, Your Honor.

And this Court hasn't relied on Chevron since 2016, but the lower courts still have to apply it.

And I think these two cases, the -- the two that you're going to hear this morning, sort of show what happens when  -- when courts are applying this doctrine beca use they're  -- they're essentially getting 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 different threshold question, which is, is this statute ambiguous enough that -- that we should just, you know, let the agency do the work for us.

John G. Roberts, Jr.: Thank you. Justice Thomas? Justice Alito?

Samuel A. Alito, Jr.: Mr. Martinez, would you agree that one of the reasons why Chevron was originally so popular was concern that  judges were allowing their policy views, consciously or unconsciously, to -- to -- to influence their interpretation of the statutes in question?

Roman Martinez: Yes.

Samuel A. Alito, Jr.: Why was that fear unfounded?  Why do you think now that the fear was unfounded?

Roman Martinez: Well, I think three things.

First of all, I think the fear has -- it's reasonable to think the fear has diminished over time, regardless of what it was then, in large part due to the very salutary developments in the way that this Court and the lower courts generally now think about statutory construction.

In the old days, there was a lot of reliance on legislative history and on sort of more free-form analysis that I think made it easier for policy considerations to infect the judicial decision-making process.

But this Court has now made clear that, you know, really, we should be text-focused, we should be focused on faithful agency to Congress.

So I think that is one difference.

I think another difference is courts now 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 statutes.

We have the APA here.

Justice Scalia was a big defender of Chevron in its original incarnation but, over time, came to realize that the APA had text that actually bore on this question.

And I think, when you're enforcing that text, you come to the same place as our Article III argument, which is that courts have to exercise independent judgment.

Samuel A. Alito, Jr.: Do you think that the canons of interpretation that we have now and all of the other tools that we have in our statutory interpretation toolkit are like the Enigma machine and so we have these statutes and they're sort of written in code and we run them through the Enigma machine and, abracadabra, we have the best interpretation?  Do you really think that's how it works?

Roman Martinez: I  -- I think that what this Court does with respect to the normal canons of construction is it's used the -- it's  -- it's generated those canons as rough rules of thumb to help guide the interpretive process  because, if the Court believes that the canons best approximate the best original meaning of  the statute, especially  -- and then there's some canons that  -- that sort of are not purely textual canons but that sort of are informed by constitutional  --foundational constitutional values.

I think Chevron's very different from that because, with Chevron, 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 interpretation because you have to defer.

And so, unlike all the other canons, Chevron is the only one that says to courts, yo u can stop doing your normal interpretive function and we're going to allocate that interpretive function outside of Article III.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: I counted over, I think -- not I --the Solicitor General or someone has given us a list of 77 cases in which the Court has used the Chevron approach and interpreted what the law was.

Your overruling Chevron puts a question to all those 77 cases.

Roman Martinez: No, Your Honor, I think --

Sonia Sotomayor: No, your out is it's stare decisis now?

Roman Martinez: Right.

So  --

Sonia Sotomayor: Until the agency does something else?  And then people can come back because it's not stare decisis anymore?

Roman Martinez: So I think, with respect to the effects of -- of applying normal rules of construction here instead of Chevron, I'd say two things.

First of all, the 70 holdings or whatever, the bottom-line holdings in those cases would get stare decisis, so they would not be undermined.

So there's no convulsive change of the law with respect to that.

Sonia Sotomayor: I don't understand how that happens.

Once you have a new approach, I'm not sure.

Roman Martinez: I  --

Sonia Sotomayor: But let me move on to the second part of my question, which is the cases that come to the Court are usually the  hard cases.

So you say, in the last 14 years, we've barely referenced Chevron.

And do you know what the breakup is? How often have we consistently upheld the agency in those cases?

Roman Martinez: In  --in the cases since 2016?

Sonia Sotomayor: Yes.

Roman Martinez: I  -- I don't know the track record on it, Your Honor.

Sonia Sotomayor: I know, it's interesting.

Roman Martinez: But I will say, I mean, there -- there's some prominent  --

Sonia Sotomayor: But -- but putting that aside where we disagree, do you su ggest that our disagreement was based on ignoring of Chevron or us doing exactly what you say we should be doing, which is to s ay this is outside the bounds of reasonableness or around the  guardrails because you're going outside of plausible --

Roman Martinez: I  --

Sonia Sotomayor: -- of reasonable interpretation?

Roman Martinez: -- I think the Court in cases like the American Hospital case or the Digital Realty case, which I think are two really good recent examples, the Court unanimously overturns the lower court decision because it does exactly the right thing.

It does all the canons at step one and it  --and it essentially says, like, the statute is clear.

But I think what those 9-0 decisions show is how confusing and unworkable Chevron is because the lower courts, you know, purported to do or didn't really do what they were supposed to do and they came to the opposite conclusion, not necessarily because they thought  that -- that your interpretation wasn't the best but rather because it thought that the statute was ambiguous enough that it required deference.

And so this, like, threshold --

Sonia Sotomayor: Counsel, that judgment is inherent in every question.

I mean, that  --that kind of problem is just a part not just of judging but of decision-making, period, of life.

And so it's not clear to me that the  fact that there may be some ambiguity about what  --how much ambiguity, the question that Justice Thomas asked, it doesn't take away from the basic premise of Chevron, which is a reasonable interpretation within the bounds of  --of common statutory interpretation should be given deference.

Roman Martinez: Right.

But I do think the ambiguity trigger introduces a whole kind of threshold question that's very hard to apply neutrally.

I mean, you have great judges. Judge Kethledge, I think, was referenced.

He doesn't  --he never found a case that required him to go past step one.

Judge Silberman, another great judge, said that in most 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, but 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 Mead.

Then you have to do a robust step  one inquiry taking into account Footnote 9 and taking into account, you know, how much ambiguity is needed.

In this -- in the D.C. Circuit, you have to do 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 its area of expertise.

And then overlying all that you've got the Major Questions Doctrine.

And so I think, if  -- if -- if that's kind of what  --

Sonia Sotomayor: Well, that's the Court's creation.

Roman Martinez: Right.

But it's the Court's creation because it's trying to solve the fundamental problem, which is that Chevron is doing something very weird.

It's taking interpretive authority that belongs to courts and it's giving it to agencies.

So all of these bells and whistles are efforts to kind of claw it back to address the symptoms, but I think it's time for the Court to  address the disease, the underlying problem, which is Chevron itself.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: Mr. Martinez, I want you to think of this from Congress's perspective.

So I was thinking what is the next big piece of legislation on the horizon and who knows, don't have a crystal ball, but I'm going to say -- I'm going to guess that it's artificial intelligence.

So let's imagine Congress enacts an artificial intelligence bill and it has all kinds of delegations, maybe it creates an agency for the purpose or maybe it uses existing agencies and it has all kinds of delegations to that agency or agencies about how to regulate artificial intelligence so that this nation can capture the  -- the --the 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 explicit delegation, Congress has, in effect, left a gap.

It has  created an ambiguity.

And what Congress is thinking is, do we want courts to fill that gap, or do we want an agency to fill that gap?  When the normal techniques of legal interpretation have run out, on the matter of artificial intelligence, what does Congress want, Mr. Martinez?

Roman Martinez: I think Congress wants courts to interpret the best interpretation of their --

Elena Kagan: Congress doesn't know

Elena Kagan: -- apply the best interpretation  --

Elena Kagan: -- what that answer means.

Congress knows that there are going to be gaps because Congress can hardly see a week in the future with  respect to 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 h ave to address.

Does the Congress want this Court to decide those questions, policy -laden questions, of artificial intelligence?

Roman Martinez: I  -- I don't think Congress wants the Court to do policy.

I think Congress wants the Court to do its ordinary function, which is interpret the law and figure -- and apply the best understanding of the law.

And I think that the implication of your question is that this is some sort of intentional delegation by Congress, that Chevron deference is  --is this implicit delegation. But I -- I don't think that's right.

I think many people, including a very insightful article that  --that you wrote 20 years ago, make clear that this is fictional.

This delegation is fictional.

Elena Kagan: Fictional just means -- is like academic speak for presumed. We are indeed presuming congressional intent. The congressional intent, you know, the -- the delegation is not explicit on the face of this  statute, but what we're thinking is Congress knows things about different institutions, about what they know, about what they're competent  with respect to, and Congress knows that this Court and lower courts are not competent with  respect to deciding all the questions about AI that are going to come up in the future.

And 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 are people who, to some degree in some way, are accountable to the political process.

They have constituencies. They have fact -finding abilities.

They are obligated to go consult with people.

They report to a president, who needs to be elected.

In all kinds of ways, both with  -- with respect to expertise and with respect to their connections to the public and to other policymaking entities, those are the people Congress wants to decide questions about AI.

We don't even know what the questions are about AI, let alone the answers to them, "we" being the Court.

Roman Martinez: Justice Kagan, I think, if we're trying to figure out what the -- what  the reasonable thing to infer that Congress has presumed, I think the far more reasonable  presumption and the one that's most consistent with our constitutional structure is that Congress is going to presume that courts are going to do law, not policy, they're going to pick the best interpretation and enforce the best interpretation as to this statute in the exact same way that they would do it with respect to any other  --any other statute. And I think this case actually  -- you know, AI is a trickier example --

Elena Kagan: I mean, but it's --

Roman Martinez: -- but talk about this case.

Does anyone  --

Elena Kagan: -- it's a real example.

I mean, this case, you know, whether it's  -- it  -- it was a correct interpretation or not a correct interpretation of Chevron is really not the issue that we're deciding here. The issue we're deciding here is more like 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 decide these issues as to things they know nothing about, courts that are completely disconnected from the policy process, from the political process, and, you know, that just don't have any expertise and  --and experience in an area, or are people in agencies going to do that?

Roman Martinez: I  --

Elena Kagan: That's what this case is about.

Roman Martinez: -- I think the constitutional answer is that Congress needs to set the rules with respect to AI.

It can delegate some policymaking discretion to agencies.

But, once the law is written and the interpretive function has begun, then that job is  -- is for the courts. And I think this case actually really is a good example because I think the problem with Chevron is that, like, no one really  --I mean, I'm curious to see what the Solicitor General will say about this, but does anyone really think that Congress was presuming that the agency would get to decide the question of who pays for the monitors?

Elena Kagan: Okay.

I have one last question.

Do you think that Congress could codify -- codify Chevron?

Roman Martinez: I  -- I don't think so because I think that  --that a statute that codifies Chevron would say, essentially, that the interpretive authority has been reallocated from the court to the agency.

I think that --

Elena Kagan: Congress  --

Roman Martinez: -- interpretive authority --

Elena Kagan: -- cannot decide that in cases  --after all the statutory tools have been used and there remains a gap or an ambiguity, Congress could not decide that it wants people who know something about something to decide the questions that will be left over.

Roman Martinez: I  -- I think that gives away and  --and would -- would take away from courts and give to agencies 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 power or the pardon power, it can't tell courts how to do interpretation and to defer to someone else.

Elena Kagan: Thank you.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: Do we have to decide that constitutional question?

Roman Martinez: I think it makes sense to decide the constitutional question.

I think you could --

Neil Gorsuch: That wasn't -- do we have to?

Roman Martinez: I think you could resolve this case under the APA, and we would certainly welcome an  --an interpretation of the APA that comes out our way, especially if it's informed by constitutional avoidance principles that I think have a lot of salience here.

Neil Gorsuch: Are  --does anything in your argument suggest or depend upon the idea that judges should make or decide policy questions about AI or anything else?

Roman Martinez: No.

We  --we a hundred percent agree that judges should not do policy.

We just think that they should  do law.

And that's in -- Chevron is about legal questions.

Neil Gorsuch: Then there was some question about past decisions, and as you pointed out, this Court's moved away from using  legislative history to some degree in favor of text, and we've made other changes in our  interpretive approaches too without Congress's intervention, for example, in sovereign immunity contexts, returning to the clear statement rule that had preexisted this Court's jurisprudence for 200 years, and then we wandered off into legislative history and circled back around and corrected our own mistake.

We had to deal with the question of what to do with those precedents, and our answer was to leave them alone from -- from those ancient regimes, as we --

Roman Martinez: Right.

Neil Gorsuch: -- called them.

Are you asking us to -- to  do anything different when it comes to Chevron?

Roman 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 interpretation. And so I don't think that this would  -- a ruling in favor of our side would -- would require or entail overturning any of those old cases.

I think what we really care about is prospectively, both with respect to the fishing regulation here but also with respect to other cases that come forward to the courts, making sure that courts are the ones doing the interpreting and not agencies.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: Several q uestions. First of all, on Skidmore, there was reference to Skidmore deference, and I guess I don't think that's the right term, that it's respect or pay attention to, but I think, if we throw the term "deference" into Skidmore deference, we're going to walk into another problem --

Roman Martinez: Some --

Brett M. Kavanaugh: -- like the one we have with Chevron deference.

Roman Martinez: Some might say "deference" is ambiguous.

I think that -- (Laughter.)

Roman Martinez: -- 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 inappropriate.

So I would not use "Skidmore deference" because I think it -- it runs the risk of -- of giving that implication.

I think that, really, we're 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 means that you've concluded that  the agency has the best interpretation and then you just apply the normal rules.

Brett M. Kavanaugh: Right.

I thought Skidmore was about the power to persuade, not the power to control.

Roman Martinez: Exactly.

Brett M. Kavanaugh: Yeah.

Roman Martinez: We  --I agree with that.

Brett M. Kavanaugh: Okay.

On the constitutional issue that Justice Gorsuch and Justice Kagan were rai sing, you have lots of arguments here, and Mr. Clement does too, for overruling Chevron without reaching the constitutional issue.

So I guess why  --why would we reach it?  If  --if we agreed with you on overruling Chevron on other grounds, I don't see the need to address the hypothetical that Justice Kagan raised about Congress passing a Chevron -type regime.

Roman Martinez: I think three things on that.

Like I said earlier, we would certainly welcome overruling Chevron, especially under the APA and especially if informed by constitutional avoidance principles.

But I think there are three reasons why you should consider going beyond that to the constitutional holding.

There are going to be some cases that, as a technical matter, Section 706 of the APA wouldn't -- doesn't apply.

And so, if it's an APA holding, it may  be that in those cases there might be lingering uncertainty about whether deference should -- 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 interpret the law, I think a lot of that analysis really overlaps with the constitutional points.

And I think, if you -- if you get to a place where you agree with us on the APA, it's not that far, not that different to ultimately agree 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 also recognized in cases like Pearson versus Callahan that there's going to be a value and a benefit to the judicial system to providing clarity about what the Constitution means.

I think -- I would respectfully submit this is one of those situations.

Brett M. Kavanaugh: On the question of how much does Chevron matter on the ground, I think you addressed this a little bit by citing Judge Silberman, but do you want to elaborate on that?  I mean, are  -- there are cases, I assume, that get to Chevron step two pretty regularly.

Roman Martinez: Very regularly, Your Honor.

It happens all the time.

And I think,  if a case like this one or two cases like these two can get to Chevron step two, I think that suggests that it's really hard to figure  out how Chevron step one is supposed to work.

I mean, the Digital Realty case is another great example.

That's a case where there was a statutory definition of the term "whistleblower" that required the person to have gone to the SEC and  -- and, you know, submitted a  -- a complaint, and the government and the lower court concluded that that was ambiguous and that it might actually apply, it was reasonable to read the statute to not require a report to the SEC.

So I think there are cases, there are examples like these that come up all the time, and, you know, thankfully, this Court doesn't have to intervene every single time, but the reason that the problem is there is because you've told lower courts how to do their interpretation.

And as long as that instruction is out there, there are going to be  a lot of cases that get it wrong, and you're not going to want to be in the business of sort of error correction on each one.

Brett M. Kavanaugh: On the question of how Congress can operate without Chevron, I just want to elaborate on  --have you elaborate on that a little more.

My understanding is Congress oftentimes will use terms like "the agency can regulate reasonable limits" or "appropriate limits," and that gives, under State Farm, a lot of discretion to the agency to make choices to do what Justice Kagan was talking about, to think about the world as it exists five years from now or 10 years from 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, capacious terms it uses, as opposed to using more defined terms or statutory terms -- usual kinds of statutory language.

Yes, it can't rewrite that.

At least that's how I  thought Congress could operate in a world where Chevron does not exist.

Roman Martinez: I  -- I think that's exactly right, Justice Kavanaugh.

And I think that, like I said earlier, in -- in those situations, the Court's job is basically  figuring out what the best interpretation of that word is.

And in many cases, maybe most cases, those types of capacious words are basically -- the best understanding of those words is that Congress is, in fact, conferring the discretion on the agency.

That's very different from Chevron, where, instead of having any sort of language like that or express language conferring a delegation, you're  --you're basically applying this fictional implied delegation that -- that is triggered by ambiguity, which is like  -- you know, frankly, it's  -- it's --it's not -- it's fictional, it's made up.

And so I think a world in which Congress, when it wants to delegate to agencies, needs to be express and use language like that or other language, I think is a better world from the perspective of -- of Article I and from Article III.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: Mr. Martinez, I want to return to the question that Justice Sotomayor  raised about stare decisis.

So you said that overruling Chevron wouldn't have an effect on the many cases that have gotten to Chevron step two and then deferred to the agency.

You said -- am I -- did I understand you correctly?

Roman Martinez: Those bottom-line holdings would be right, yeah, would be.

Amy Coney Barrett: Okay.

But the bottom -line holdings in those cases, if the Court did defer at step two, are simply that the agency's interpretation was reasonable.

And maybe sometimes, like in Brand X, they might even be like, well, we would reach a different interpretation if it were our call  -- our call, but it's ambiguous, so the agency can decide. So maybe nothing happens immediately to those cases, but isn't the door then open for litigants to come back and say:  Well, "stationary source" really means X or, you know,  "broadband" or whatever the specific term was in -- in Brand X? So isn't it inviting a flood of litigation even if for the moment those holdings stay intact?

Roman Martinez: So I would say the bottom -line holdings in those cases, I would just quibble slightly, I would -- I would describe the bottom-line holding as being that the agency's action was lawful.

And so that's the bottom line.

I think it's true that people could come and say, look, the interpretive methods have changed since this bottom -line holding was issued and we think that  --that, you know, a different result now should apply.

And  -- and that's why courts consider requests to overturn precedent.

But I just think that they would apply the same standards that they would apply to other stare decisis inquiries, and I think it would be the rare case that would require -- 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.

Amy Coney Barrett: So, when you say that the bottom-line holdings, you -- you've kind of changed the level of generality, right? If you say the bottom-line holding is that the agency's interpretation is lawful, you think it's not open to people to come back then and say, well, it's actually not lawful, this is wrong, the Court got it wrong because the best interpretation isn't the agency's?

Roman Martinez: I  -- I think litigants could make that argument, but I think they would have to overcome the normal stare decisis test, which is very hard to overcome, and so they would probably have to show that it's really wrong and really practically important.

And I think most courts, and I imagine this Court, is -- is going to find that that threshold is  --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 --

Amy Coney Barrett: Okay.

Roman Martinez: -- even if you let people in theory come and challenge them, which  they can do now.

Amy Coney Barrett: So let me ask you  -- you  -- you just referred to the, you know, serious stare decisis threshold, you know, that would have to be overcome.

Roman Martinez: Yeah.

Amy Coney Barrett: So let's talk about the stare decisis threshold here.

Why is it different here than it was in Kisor?  You know, in Kisor, the Court declined to overrule Auer and the part  --the opinion that was for a majority of the Court was largely -- it was on stare decisis grounds.

So why would a different result obtain here?

Roman Martinez: I think my first answer is that the Chief Justice's opinion suggested it might be different and I think the reasons why it's  --it's reason -- it's -- it's -- it really is different is because there are important  differences between Chevron and Auer.

The most important that I think plays on the reliance question is this idea that Chevron allows and  --and almost like a feature of Chevron, not a bug, is that it encourages and allows agencies to flip-flop. And so the reliance consideration with respect to Chevron is -- is much, you know, weaker for  -- for --for the government's side because the agency is allowed to flip-flop all at once, whereas, with Auer deference, the idea is that the agency  -- it's going to be very hard for the agency to flip -flop.

So I think it's more important to correct Chevron because it's  --it has that mistake that Auer doesn't. There are other differences.

You know, Chevron is problematic because it lets agencies say what Congress intended or what Congress's meaning was, as opposed to just saying what they themselves meant with the regulation that they themselves enacted.

So I think the  --the kind of -- you know, the deference makes more sense when you're deferring to the entity that actually created the provision in question, as opposed to deferring to their interpretation of  --of a provision that was created by Congress.

I think, in addition, you know, Chevron is not limited to agency expertise. Auer is limited to agency expertise.

So Auer is  -- is narrower. And then, finally, I do think there's a difference even with respect to the APA, where I think the APA more clearly puts constitutional interpretation and statutory interpretation on equal footing, and that might play into the analysis.

You know, this Court, the plurality in  -- in Kisor sort of emphasized that -- that the APA was enacted after Seminole  --a year after Seminole Rock, and so maybe that was a basis 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 differences that really flesh out, I think, the important point that the Chief Justice was making, which was that the analysis there doesn't automatically transfer over to Chevron.

Amy Coney Barrett: Thanks.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: So I've heard you say several times that you agree that judges should not be doing policy, they should be doing  law.

And I guess I too agree with that, and my concern is that it's actually not as easy as it seems to distinguish between the two and  -- and that it appears in a lot of your answers that you sort of say, well, you come up with the best answer, it's a legal question.

But I'm not so sure it's a legal question, as opposed to is it the best under the sort of policy regime.

And I think that there's a real separation -of-powers danger here to the extent that you're saying that the judges are deciding whether or not this is something the agency should do or not, whether this is a legal question or not.

You know, there's the old saying that when you're a hammer, everything looks like a nail, and I'm concerned that judges are going to look at all of the questions related to a statute and call them legal if 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 in that regard?

Roman Martinez: So I think two points. I think the first point I would make on the distinction between law and policy and how they kind of maybe seem like they blur together, I think that -- that there are just so many instances in which a court can get a question that comes before it that maybe it involves an agency regime, but the agency hasn't acted yet.

And I think the court in that circumstance just does its best.

It doesn't have guidance, it doesn't have instructions from the agency.

It does its best.

And I think, when it does its best --

Ketanji Brown Jackson: But does it have to, Mr. Martinez?  I mean, there are -- there are other regimes in which a court is presented with a question and it identifies it as a policy question that it cannot answer. So what I'm saying is that it's not necessarily true that just because the court  gets an issue, it automatically says, oh, this must be legal, I have to act.

Roman Martinez: But, if -- if the court got  -- just to go back to Justice Kagan's hypothetical, the question of what  --what is a dietary supplement and the agency hadn't acted, I think the court would absolutely give meaning to that, and I don't think the court would think that what it's doing is making policy.

Ketanji Brown Jackson: Well, let me give you a -- a particular example, all right?  In the Food and Drug and Cosmetic Act situation, new drugs can be approved only if an adequate  -- "adequate and well-controlled investigation" shows that the drug will have its attend  -- intended effect.

This term, what is an "adequate and well-controlled investigation," is it your view that Congress wanted the courts to decide what it means for a study to be adequate or well-controlled? I mean, how would a court go about determining whether that's something it's supposed to be doing or the agency is supposed to be doing?

Roman Martinez: I think that the  -- the court would  -- would do exactly the kind of analysis there that it would do if it had that exact same statute without the agency acting. And I think what that means is the court would go in and it would do everything that  --that we all agree happen -- should happen under step  one.

I think the only difference is that if, after doing that step one analysis, the court concludes that there's a better view and a less better view, then the court should just go with the better view.

Ketanji Brown Jackson: But when  -- when does the court decide that this is not my call?

Roman Martinez: Well, I think at the  --

Ketanji Brown Jackson: I guess that's the part that's dropping out for me in your analysis.

You just say, you know, we do a step one analysis and then the court makes the interpretive decision about what this means.

And I guess --

Roman Martinez: I  -- I --I don't think the court ever says that it's not my call if the question in front of it is a question of statutory interpretation, because I think that's their core job --

Ketanji Brown Jackson: So every statutory interpretation question is one of law that a court can decide, you're saying?

Roman Martinez: Yes, and that --

Ketanji Brown Jackson: There's never a statutory interpretation question that is one of policy that you see Congress may have been intending the agency to answer?

Roman Martinez: I think, by definition, if we're talking about interpreting a statute, then you're talking about a legal question in the same way that if you're talking about interpreting the Constitution, then you have a constitutional question.

No one would say that you would apply deference there.

Ketanji Brown Jackson: So there's never a world you -- I --maybe we just differ on this. I'm worried about the courts becoming uber-legislators, that when we have a policy -- so one way that some of the experts have looked at 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 there's a statutory term and it's ambiguous in the sense that there are several reasonable  meanings of what "stationary source" might mean, for example, several different ways that you could define that.

When you get down to that  level of analysis, the question is, who's  going to make the choice as between what those meanings are?  And I hear you saying there might be a best choice, but I guess, if we're talking about a  policy question, there are several reasonable meanings, why should the court be the one to make that determination?

Roman Martinez: I  --

Ketanji Brown Jackson: And  --and couldn't we be in a world where Congress intended for the agency to actually decide which choice is best?

Roman Martinez: I think where I  -- where I would just sort of disagree is what you said at the end where you sort of assumed that it was a policy question.

I would just say that if it's  -- if the question is the meaning of a statutory term, that's an interpretive question  that's a legal question and would be treated as a legal question if you got that exact same question before the agency had acted.

Ketanji Brown Jackson: All right.

Let me ask you one more thing about practical implications.

So let's say it is , you know, a legal question, as you have analyzed, "adequate  and controlled investigations."  If I'm an agency and I'm trying to be responsible, how is this going to work as a practical matter?  Is the agency going to go to court every time it gets one of these undefined terms in a statute and seek, you know, a declaratory judgment as to the meaning of "adequate and controlled" -- and "well-controlled investigations" before it goes forward with its policy?

Roman Martinez: No.

Ketanji Brown Jackson: All right.

So the agency can come up with its own definition and implement it and then wait to be sued with respect to that, and  --and every term undefined in a statute we're going to have litigation about?

Roman Martinez: No.

No, Your Honor.

I think what the agency has to do is what everyone else has to do, which is try to figure out what the  --what the law means and then act accordingly, and if someone challenges that, then that'll get sorted out.

If there's a -- a stat  --a legal question, a statutory interpretation question, then that'll get sorted out by the courts.

But the agency isn't, like, paralyzed  --

Ketanji Brown Jackson: What do we do about the  -- the chaos that we talked about in -- in the City of Arlington case that comes from perhaps having different courts, right?  We have 11 different, you know, jurisdictions that have legal authority.

So something like the definition of "adequate and well-controlled investigations," you say the courts will sort it out.

Well, first of all, it will take years perhaps for the 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 view, as Justice Sotomayor pointed out, of what "adequate and well-controlled investigations" are supposed to do, so -- means.

So isn't it sort of impractical and chaotic to have a world in which every undefined  term in a statute is subject to litigation if you're trying to govern?

Roman Martinez: Well, I -- I don't think it's impractical.

I think that to the  extent that Justice 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 problem with respect to the cases that maybe 20 years ago under a looser approach to Chevron wouldn't have gotten deference.

Ketanji Brown Jackson: Wouldn't you have more of a problem in a world in which we've gotten rid of Chevron because it's going to give incentives to parties to raise legal issues that they wouldn't have raised before?

Roman Martinez: I  -- I don't think it's a problem to  --to have parties, if they think an agency is overstepping the boundaries an d if they're right that  --

Ketanji Brown Jackson: No, I understand, but, under a Chevron regime, right, if that's the background rule, then you're going to have  parties thinking twice before going down a litigation road with respect to a term because they're going to say, at the end of the day --

Roman Martinez: Right.

Ketanji Brown Jackson: -- the agency has a reasonable interpretation, that's what the  court's going to find, so it's not any --

Roman Martinez: Right.

You're -- you're going to have parties being less likely to challenge agency action that is unlawful under the best interpretation of the statute because they know that when they 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.

Ketanji Brown Jackson: Thank you.

Roman Martinez: And --

John G. Roberts, Jr.: Thank you, counsel.

General Prelogar.

Elizabeth B. Prelogar: Mr. Chief Justice, and may it please the Court:  The Chevron framework is a bedrock principle of administrative law with deep roots in this Court's jurisprudence.

Overruling a  precedent is never a small matter, but overruling a precedent as foundational as  Chevron should require a truly extraordinary justification, and Petitioners don't have one.

They say that Article III requires de novo review of all statutory interpretation questions.

But that's flatly inconsistent with precedent going back to the Marshall Court and with the traditional limits on mandamus jurisdiction, which governed most judicial review of executive action in the early republic.

They've said that Chevron violates due process.

But the application of deferential standards of review doesn't constitute impermissible bias.

And they contend that the APA requires de novo review.

But that theory is inconsistent with the statute's history and the way it's been understood ever since its enactment, including in the more than 70 cases in which this Court has relied on Chevron to sustain an agency's interpretation.

On top of all that, reliance inte rests in this context are at their apex.

Congress,  agencies, states, regulated parties, and the American public have all relied on Chevron and the regulations upheld under it to make important decisions that could be upended by overruling that framework.

Thousands of judicial decisions sustaining an agency's rulemaking or adjudication as reasonable would be open to challenge, and that profound disruption is especially unwarranted because Congress could modify or overrule  the Chevron framework at any time.

Congress has many times 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 Congress has chosen to confer on federal agencies.

Just five years ago in Kisor, this Court declined similar calls to overrule the Auer deference doctrine based on many of the same flawed arguments that Petitioners are making here.

The Court observed that it would be the rare overruling that would introduce so much instability into so many areas of the law, all in one blow.

Overruling Chev ron would be an even greater and unwarranted shock to the legal system.

I welcome the Court's questions.

Clarence Thomas: General, Section 706 of the APA was not mentioned in Chevron.

How would you reconcile the requirements of -- on this  --on federal courts under 706 with your view of Chevron?

Elizabeth B. Prelogar: Section 706 says that courts should decide all relevant questions of law and interpret statutes, but none of that is inconsistent with the Chevron framework because 706 doesn't prescribe a universal standard of review to govern those kinds of statutory interpretation questions.

And the courts 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 interpretation to identify whether Congress has spoken to the issue in the case and, if so, Chevron said that's the end of the matter.

So, in that sense, in a step one case, the Court has, of course, interpreted the statute.

But, in a situation where, at the end of that interpretive process, the Court is left with n o conclusion that it's actually able to ascertain that Congress has spoken, then, in that circumstance, I think the right interpretation of the statute is that Congress left a gap or maybe created an ambiguity and simultaneously vested the agency with the important responsibility, pursuant to an express delegation, to administer that statute with the regulations that have the force of law.

And that's what then tells the Court what the relevant question of law that's left over to resolve is.

It's whether the agency acted within the bounds that Congress itself prescribed.

So I don't think there's any fundamental incompatibility with Section 706 and what Chevron dictates about how to think about Congress's delegations.

Sonia Sotomayor: Can I say, counsel -- General, I know plenty of statutes where Congress uses the word "de novo."  It didn't here, correct, in 706?

Elizabeth B. Prelogar: That's correct.

Sonia Sotomayor: I thought it, and  I do think it, would be revolutionary to say that Congress can't limit judicial review. AEDPA is the quintessential question where we not only give deference to state court  decisions, we say even if it got it wrong, if it didn't get it unreasonably wrong, we are superseding the court's ability to declare a violation of the Constitution and give relief.

So I -- 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 passed.

There are statutes that basically don't -- say apply de novo review, correct?

Elizabeth B. Prelogar: Yes.

Sonia Sotomayor: And there are statutes that require deferential review explicitly to legal questions, correct?

Elizabeth B. Prelogar: Yes.

Sonia Sotomayor: Besides Chevron?

Elizabeth B. Prelogar: Yes.

Sonia Sotomayor: All right.

So now we have  -- we're now at 706.

And my -- your adversary, your opposing counsel, said that he  didn't see that much disruption from overruling Chevron, that nobody would really bring  up those old cases.

Do you have a view on that?

Elizabeth B. Prelogar: I think that my friend -- it  --it might be easy for him to say that because he is not going to be involved in the endless litigation that I think would result if this Court were to overrule Chevron.

I understand his point to be that all of the holdings in those cases will be secure because stare decisis will apply in those contexts.

But the important thing to realize is that in those cases, as Justice Barrett's questions emphasized, the Court has decided that what the agency did was reasonable.

The statute has essentially been interpreted to vest the agency with discretion such that the agency's regulation is being held lawful or valid on the basis of reasonableness, and I think that that means that litigants will come out of the woodwork seeking to open those decisions and contending that they didn't actually address what they now say is the relevant question, not whether the agency's interpretation is reasonable or whether the regulation can be upheld on that basis, but how the statute should  be interpreted without granting any deference to the agency's interpretation.

John G. Roberts, Jr.: Counsel, I'll ask you the same question I asked your friend. You began by saying Chevron is foundational.

We get a lot of statutory interpretations from agencies, and I don't know whether it was 14 or 16 years, we haven't relied on Chevron over that time.

I -- I mean, have we overruled it in practice even if we've let the -- had to leave the lower courts to continue to grapple with it?

Elizabeth B. Prelogar: No, I don't think so, Mr. Chief Justice.

It's been eight years since this Court relied on Chevron at step two, but there's no case that my friends have been able to point to where the Court has said that a statute was ambiguous or left a gap and Chevron would otherwise apply, but the Court is not going to defer in that circumstance.

I think that that --

John G. Roberts, Jr.: No.

But, I mean, that's simply a function of 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  --

Elizabeth B. Prelogar: I agree.

Those are step one holdings.

So I -- so I think that they are consistent with the Chevron framework.

And the fact that this Court hasn't had a step two case in recent years in no way indicates that in those cases where Cong ress is, in fact, leaving ambiguities or gaps, Chevron no longer sets the right ground rule for understanding the scope of the delegation.

Brett M. Kavanaugh: Can I ask you about what I see as an internal inconsistency in Chevron itself?  It relates to Footnote 9, which is  -- instructs that a court should loo k -- use all the traditional tools of statutory interpretation before getting to step two.

My concern about that or my confusion about that is, if you use all the traditional tools of statutory interpretation, you'll get an answer, and we know that because, in cases where we don't have an agency involved and we use those same traditional tools, we get an answer.

So how do we deal with Footnote 9, which seems to suggest that you'll never get to step two if you follow Footnote 9 by what it says?

Elizabeth B. Prelogar: So what the Court said in Footnote 9 is that the Court should use all of the traditional tools to ascertain whether Congress had an intent on the issue.

And that, of course, is an important part of this framework because, if Congress actually spoke to the issue, then the agency doesn't have any discretion to act in a way that's contrary to Congress's express direction.

Brett M. Kavanaugh: Do you think that's different from ascertaining what the statute means?

Elizabeth B. Prelogar: I think that there can be a relevant difference and it touches on exactly  what you were asking about in the context where a court has to do it without an agency.

In that circumstance, I think it's absolutely right that the Court is ultimately going to keep working and decide how it thinks  the statute should best be administered, even in the circumstance where there might be an ambiguity or a gap to fill.

But what Chevron recognizes is that there is a third option available.

It's not  just Congress spoke to the issue and it necessarily authorized what the agency did or Congress spoke to the issue and it prohibited what the agency did.

There is a category of cases and statutes out there where, really, using all of the tools, the best interpretation of the statute is that Congress didn't resolve it.

It left that gap or ambiguity and coupled it with this express authorization to the agency to carry that statute into effect.

This is Congress and the agencies working together hand in hand to put into effect this --

Brett M. Kavanaugh: How would you define "ambiguity" or how would you, if you were a judge, say, yes, this is ambiguous or no, that's not ambiguous?

Elizabeth B. Prelogar: So I would draw on what the Court said recently in Kisor where it said a statute is ambiguous when the Court has exhausted the tools of interpretation and hasn't found a single right answer.

And I recognize, Justice Kavanaugh, and you have expressed these concerns that there are some limits of language here and it's not subject to precise mathematical quantification, but that's because I think it's a standard that inherently requires the application of judgment.

And at the end of the day, what the Court should be looking for and asking itself is, did Congress resolve this one?  Do I have confidence that actually I've got it, I -- I understand what Congress meant to say in this statute and it meant to prescribe a -- a uniform approach to "stationary  source," that it has to be plant-wide or it has to be a particular piece of equipment?  But, in a circumstance like Chevron itself with "stationary source" or some of the examples that the Justices have been talking about with "reasonable" or "feasible," I think you can get to the end of that process and a judge could say:  I think, 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.

Brett M. Kavanaugh: Do you  --do you think it's possible for a judge to say, the best reading of the statute is X, but I think it is ambiguous, and, therefore, I'm going to defer to the agency, which has offered Y?

Elizabeth B. Prelogar: No, I think that that would probably  --

Brett M. Kavanaugh: That can't happen? I think that happens all the time.

Elizabeth B. Prelogar: Well, I think that there are two different ways in which courts use the term "best interpretation of the statute." So, if what you're asking me is, is there a world in which a judge could go through the rigorous step 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 require a court to ignore what is ascertained doing the step one inquiry.

At that point, that is the  -- the judge's conclusion that Congress actually spoke to the issue and Chevron is totally clear about this, give effect to it.

But, if what you're asking me is, is there a world in which the Court could get to  the end of the step one inquiry, decide that Congress hasn't spoken to the issue, and then say, if, in fact, the courts had been given the role of filling the gap, I would have done it differently, I would have exercised whatever discretion that Congress left open in this statute in a different way, even looking to things like the overall objectives in the statutory program as a whole, then yes, of course, in that circumstance, it's  -- it's implementing Congress's directives  --

Neil Gorsuch: I mean, General --

Elizabeth B. Prelogar: -- for the court to not  --

Neil Gorsuch: -- I'm sorry to interrupt, but those are two different -- very different views about what qualifies as an ambiguity you've just given us.

One is there is a better interpretation.

I provide it as a court.

The other is:  Well, yeah, but I'm going to defer anyway given whatever considerations  you want to throw into the ambiguity bucket.

And that's exactly the problem that your friends on the other side suggest have persisted in the lower courts for 40 years and  why some judges claim never to have found an ambiguity and other equally excellent circuit judges have said they find them all the time.

And it's also why, I don't know, maybe a dozen or more circuit judges have written asking us to overrule Chevron.

And  -- and -- and  -- and -- and it also may be why one of your colleagues last year said, I don't know what "ambiguity" means at this lectern.

And should that be a clue that something needs to be fixed here, that even the federal government at the podium can't answer the question what 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.

Elizabeth B. Prelogar: So there's a lot packed in there, Justice Gorsuch, and I want to respond to each of your concerns.

First, I would draw from Chevron and Kisor in defining what is an ambiguity.

It is  when a court has applied the tools of construction and can't ascertain that Congress had an intent on the matter.

So I think that  that is the core question for a court at step one of Chevron, and if that's the circumstance, that 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  --

Neil Gorsuch: Well, you gave us a second definition just a moment ago, and --

Elizabeth B. Prelogar: I was trying to  -- to explain how I thought that sometimes --

Neil Gorsuch: Some -- yeah.

Elizabeth B. Prelogar: -- in the case law "best interpretation" --

Neil Gorsuch: Yes.

Elizabeth B. Prelogar: -- is used in two different --

Neil Gorsuch: Right.

Elizabeth B. Prelogar: I don't think that's a different understanding of Chevron.

Neil Gorsuch: Well --

Elizabeth B. Prelogar: I think that's really a difference  --

Neil Gorsuch: -- your -- your friend --

Elizabeth B. Prelogar: -- between step one and step two.

Neil Gorsuch: -- your friend a year ago thought so and  -- and -- and lower court judges t hink so.

Elizabeth B. Prelogar: So let me respond to the concern --

Neil Gorsuch: So you agree  --

Elizabeth B. Prelogar: -- about lower court judges.

If you think that they are too readily finding ambiguity, I think the Court could do in this case exactly what it did in Kisor --

Neil Gorsuch: Haven't  -- haven't

Elizabeth B. Prelogar: -- issue a course correction --

Neil Gorsuch: -- we done that, like  --like, 15 times over the last eight or 10 years, say, really, really, really, go look at all the statutory tools?  And yet, here, we have a case, two cases, one in which one court found ambiguity and went to step two and another one which -- well, I can't tell what it did, but there's a pretty good argument it -- it tried to resolve it at step one.

So, even in a case involving herring fishermen and the question whether they have to pay for government officials to be onboard their boats, which may call for some expertise, but it doesn't have much to do with fishing or fisheries, it has to do with payments of -- of  -- of government costs, we  -- we -- lower court judges even here in this rather prosaic case can't figure out what Chevron means.

Elizabeth B. Prelogar: Well, I do think that issuing a reminder to courts about the thoroughness  --

Neil Gorsuch: Another one?

Elizabeth B. Prelogar: -- that's necessary at step one could make a difference in this context.

And I can just share anecdotally on behalf of the government that we have canvassed the litigating components and looked at the lower court case law, and after Kisor, lower  courts granted Auer deference far less frequently, so I think it can matter and that lower courts can 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 the alternative as well.

It's not as though, if this Court overrules Chevron, that's going to get rid of statutory gaps or ambiguities.

Neil Gorsuch: No, it takes  --

Elizabeth B. Prelogar: They will persist.

Neil Gorsuch: -- us back to Skidmore, which Justice Jackson, the most ardent of New Dealers, wrote and that persisted in this Court for 40 years, more or less, after the APA. And the world seemed to continue on its axis just fine.

Elizabeth B. Prelogar: But it's not going to create greater predictability or stability or consistency across judges.

Neil Gorsuch: That's  -- that's --

Elizabeth B. Prelogar: If anything, I think that --

Neil Gorsuch: -- an interesting thing to suggest, that Chevron predicts stability, when the whole point  --I didn't see you mention Brand X much in your brief.

But I -- I'm sorry to go back there, but -- my good friend, but Brand X is a recipe for instability, isn't it, because each new administration can come in and undo the work of a prior one. They're all reasonable.

I mean, my goodness, the American people elect them.

Of course, they're reasonable people.

(Laughter.)

Neil Gorsuch: And  --and --

Sonia Sotomayor: That may be the first -- (Laughter.)

Neil Gorsuch: And  --and there we are.

And so you never have stability in the law.

I mean, if reliance and stability count, I would have thought that Chevron, at least as this Court's understood it, is a recipe for anti-reliance.

Elizabeth B. Prelogar: So I disagree with that characterization about Brand X, and I think my friends have created  -- kicked up some dust about exactly what Brand X does --

Neil Gorsuch: So you do  --

Elizabeth B. Prelogar: -- and doesn't do.

Neil Gorsuch: -- you do endorse Brand X, the  government does?

Elizabeth B. Prelogar: Yes.

I think it is a logical follow -on of Chevron, and here is why. As Brand X itself recognizes, if the court has found at step one that Congress spoke to the issue, there's no room under Brand X for the agency to reverse the court or somehow change the underlying meaning 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 circumstance, it's because the court in the prior case has understood the statute to leave a gap or an ambiguity for the agency to fill, considering a range of regulatory approaches. So, in that circumstance too, the meaning of the statute doesn't change.

It remains a gap for  the agency to fill at time two, and if the agency is running through all of the procedural  hoops, which can be quite burdensome in this context, to change its regulatory approach, it is still acting consistently with the --

Neil Gorsuch: Or not.

Elizabeth B. Prelogar: -- with the discretion.

Neil Gorsuch: O r not if it -- if it issues an interpretive rule without notice -and -comment or issues an adjudication. It may or may not be that burdensome, right?  So Brand X also says that an agency can overturn a prior judicial interpretation. And I saw that as a circuit 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 says, no, you have to overturn your precedent, Tenth Circuit, and he's not allowed in the country. And we had to overrule our judicial precedent.

Do you think that's an appropriate understanding of the law too, that judicial precedents, maybe even precedents of  this Court, can be overturned by agencies?

Elizabeth B. Prelogar: It depends on what 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 Congress didn't resolve the issue and it delegated to the agency the responsibility and  role in administering it and filling the gap, including with the possibility of changing regulatory approaches based on things like change --

Brett M. Kavanaugh: But the reality  -- just to pick up on that, 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 shocks to the system every four or eight years when a new administration comes in, whether it's communications law or securities law or competition law or environmental law, and goes from pillar to post, like Professor Pie rce wrote, and he had been a fan of Chevron.

Now he's not because he says it's a source of extreme instability in the law.

That's his -- his phrase.

And it just seems like you just pay attention to what happens when a new  administration comes in at EPA, at SEC, at FTC, you name it.

It's just massive change.

That is  at war with reliance.

That is not stability. And so I think to hold up stability and reliance is a little tough given just watching how it operates every four years.

Elizabeth B. Prelogar: Well, let me give you a couple of different reactions to that.

I think that that is a small sliver of cases or circumstances.

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-flopping left and right or doing so on a whim.

And it brings me to the important point that to do --

Brett M. Kavanaugh: I  don't think they're  -- I'm sorry to interrupt --

Elizabeth B. Prelogar: No.

Brett M. Kavanaugh: -- and I'll let you finish.

But I don't think they're doing it on a whim.

I think they're doing it because they have disagreement with the policy of the prior administration and they're using what Chevron gives them and what they can't get  through Congress to do it themselves, self-help, and to do it themselves unilaterally, which is completely inconsistent with bicameralism and presentment to get your policy objectives enacted into law.

Elizabeth B. Prelogar: But, Justice Kavanaugh, the premise I think that's embedded in that question is the idea that Congress had spoken to that issue.

And in a circumstance where Congress didn't resolve it and, in fact, wanted the agency to have flexibility and a range of options, there's nothing inherently problematic or incompatible with our system 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 Court said, applying all of the tools, Congress didn't have a view on it.

It didn't want to foreclose a plant-wide definition.

It didn't want to foreclose an equipment -specific definition.

And I think it was entirely permissible for the expert agency to come in, take stock of the entire situation, and, yes, take account of the policy goals of an incoming  administration to better account for the interests of the regulated parties and give them flexibility.

That's just part of Congress's design.

Ketanji Brown Jackson: After all, you know, taking into account the policy goals of the new administration reflects 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 suppose judicial policymaking is very stable but precisely because we are not accountable to the people and have lifetime appointments.

So, if we have gaps and ambiguities in statutes and the judiciary is coming in to fill them, I suppose we would have a -- something of a separation of powers or policy -- excuse me -- separation -of- powers concern related to judicial policymaking.

Am I wrong to be worried about that?

Elizabeth B. Prelogar: No.

I think that that concern is valid, and I think it's valid along two separate dimensions, and one is to  recognize that in these scenarios where we're at Chevron step two, by definition, it's because the statute itself doesn't supply an answer and the court can't ascertain that Congress actually meant to resolve it.

And in that circumstance,  it's entirely sensible for Congress to give the issue to an agency when it is charged with administering the statute and, of necessity, is going to have to fill the gap along the way. And Congress could quite legitimately want the agency to draw on its policymaking expertise in figuring out the right way to fill the gap.

Ketanji Brown Jackson: What do you -- what do you say to Mr. Martinez, who says we've already characterized that as a question of law because the court was involved at step one in making the determination, and so it seems a little odd -- I think I took this away from his presentation  --to suddenly say, when we're in a step two gap-filling world, now we're going to call it a policy question as opposed to a legal one?

Elizabeth B. Prelogar: So I think you can still characterize it as a legal question while recognizing that in a circumstance, 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 going to have to draw on a set of considerations to inform its judgment.

And I wouldn't call it policymaking, but I do think it means that the court can't suggest that the answer it is giving is absolutely dictated on that precise issue by Congress because, by definition, we're in a world where Congress didn't speak to it.

So the court will have to take account of a narrower range of circumstances, things like the overarching statutory objectives, to try to fill in the gap.

But the point is that when Congress has left that gap and charged the expert agency with the administration role, Congress could have every expectation, and Chevron says Congress has the expectation, that the agency will fill the gap and that the courts will respect it within the bounds of reasonableness that always apply in this context.

Amy Coney Barrett: General Prelogar, most scholars of statutory interpretation consider Chevron to be an interpretive canon, much like clear statement rules, rule of lenity,  judicially created.

Do you see Chevron that way?  And, if so, do you see it as different in kind from any of the other canons of interpretation that we apply?

Elizabeth B. Prelogar: I do think it is different.

I don't conceive of it as a canon. Instead, I think that it is fundamentally rooted in  -- in kind of setting the ground rules for how all three branches of the government are operating together.

And what I understand the Court to have been doing in Chevron is recognizing that there are legitimate reasons why Congress cannot answer every question itself and why it will want to go hand in hand with an agency by charging that agency with administering the statute.

And in that circumstance, it's the role  of the court to give effect to that. So I think it's not just kind of an interpretive canon, but, rather, it really is grounded in the separation of powers.

Amy Coney Barrett: So is it dependent on a judgment about what Congress would want, one that would have to be empirically tested?

Elizabeth B. Prelogar: So I don't think that it's getting into Congress's subjective intent, although, certainly, I think the primary rationale that Chevron gave was its appraisal that this is, as an overarching matter, 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 creating in the moment.

Sometimes I think it does and it's clear when it says set reasonable rates.

It knows that it's not itself prescribing what those rates will be in concrete circumstances.

It's leaving gaps and the agency has to fill it.

But I think, even in the circumstance where Congress doesn't know it's creating it at the time, someone's going to have to come in after the fact and fill it in, and it's either going to be the agency or it's going to be the court without deference.

And in that circumstance, I think the court appropriately recognized Congress would want for the agency to do it.

Amy Coney Barrett: And how do we know -- this is -- goes back to that question of what is the trigger of ambiguity that Justice Gorsuch was asking you.

So think about a concrete example like Pulsifer, which the United States is on the other side, pending before the Court, turning on what "and" joins together.

Elizabeth B. Prelogar: We think that one's clear.

I'll just put it out there.

(Laughter.)

Amy Coney Barrett: So let's  -- let's put aside the question of whether, you know, the Department of Justice and the Executive can get to deference in interpreting criminal statutes. Just erase that issue from the picture.

Is that the kind of question -- you know, judges below, very smart, very reasonable judges reached different conclusions about what that word in the statute meant.

Is tha t the kind of question then, you know, thinking about Brand X saying, well, it doesn't have to be the best, it just has to be, you know, a plausible, reasonable one, is that the kind of statutory question that would trigger ambiguity and step two deference?

Elizabeth B. Prelogar: So I think it's hard to speak in generalities about this.

And I  am struggling because, of course, the Court has recognized that the  -- the Department of Justice does not get deference in the criminal context.

Amy Coney Barrett: Right.

Elizabeth B. Prelogar: So, with respect to that particular issue --

Amy Coney Barrett: And it's that statutory structure in a -- in a communication

Elizabeth B. Prelogar: Right.

Amy Coney Barrett: -- communication sense.

Elizabeth B. Prelogar: But I guess what I would say to just try to address the overarching question is that, you know, I think that it's going to be kind of a specific exercise in every case, and I can't say here is the formula I can give you to know when the statutory interpretation exercise at step one runs out and the court should feel like, I don't have an answer, Congress didn't supply one, and when not.

I think it's going to vary based on the statutory scheme.

But, in each case, the court should conduct that inquiry, make it a thorough inquiry and take account of all of the relevant aspects of interpretation that can bear on meaning and show that Congress, in fact, did resolve it.

That is the role of the court, and it's the role of the court likewise to enforce Congress's directions when --

Amy Coney Barrett: So that kind of question, putting aside the government's position in Pulsifer, so maybe --

Elizabeth B. Prelogar: Yeah.

Amy Coney Barrett: -- that's an unfair question to ask you, but that kind of question you think would be the kind of question that could -- you know, let -- 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, that kind of a thing, that is the kind of question that, depending on the circumstance, could trigger step two deference?

Elizabeth B. Prelogar: I think it conceivably could.

Now I want to hold open and acknowledge that the Court has said there are certain types of statutory questions that don't fit within the Chevron framework because there are kind of statute-specific reasons to think Congress wasn't giving this question to the agency.

Amy Coney Barrett: Sure.

Elizabeth B. Prelogar: I think the Major Questions Doctrine is a species of that.

I'd point to the Adams Fruit case as well, where it was a judicial review provision, and the  Court said this wasn't something for the agency 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 comma or to turn on the meaning of the word "and," still I think the inference holds because, in that context, Congress, if it, in fact, has left the ambiguity or the gap, recognizes that the agency is going to have to come up with an answer as part of implementing the  --

Amy Coney Barrett: Except a lot of times Congress doesn't intentionally leave the ambiguity or the gap, right?  It's just limits  of language, limits of foresight.

Elizabeth B. Prelogar: Yes.

And I think a -- so I think a court ultimately, if it's able to ascertain that, although it's not perfectly clear in the statute, you 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, Chevron is the stable background rule. It's been the rule for 40 years.

This Court acknowledged in City of Arlington that Congress, in fact, legislates against the background of that rule, and so it knows that with anything it's doing that's unintentional, that will trigger  --

Brett M. Kavanaugh: Can I  --

Elizabeth B. Prelogar: -- deference  --

Brett M. Kavanaugh: -- can I ask you about your --

Elizabeth B. Prelogar: -- if the predicates are satisfied.

Brett M. Kavanaugh: I'm sorry.

Can I ask you about the phrase "law runs out."  One way to think about that would be if you had the same statutory interpretation --

John G. Roberts, Jr.: Go ahead and finish, sure.

Brett M. Kavanaugh: Same 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 question in an agency case.

If this were a non-agency case, would we come to an answer on this case?  And if so, you don't go to step two.

What's wrong with that?  And if that's not correct, because I don't think you're going to agree with that  -- (Laughter.)

Brett M. Kavanaugh: -- how -- how would you define when the law runs out short of that, which I think is a problem, as you said, hard to speak in generalities about this. That's the problem.

Elizabeth B. Prelogar: Yes.

So you predicted my answer.

I don't agree that it's only in a circumstance where the statute would be incapable of the Court issuing a decision at the end of day.

Of course, if a case comes to the Court and it has to resolve it, it's going to 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 of construction and interpretation  and doesn't think that Congress actually directly spoke to this issue, Congress itself  didn't resolve it, then the kinds of tools the Court is going to have to use will be ones that sound in things like the overarching statutory objectives that Congress revealed as part of its plan.

And I think that in a  --a Chevron circumstance, the insight of the Court's opinion there was that the Court doesn't have 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 decision-maker or the person with the primary role in the first instance to be the agency.

Brett M. Kavanaugh: Thank you .

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas, anything further?

Clarence Thomas: Just a -- a couple questions.

You said that -- in an exchange with Justice Sotomayor and me that Congress could  require some deference when it came to questions of statutory interpretation.

And in 706, it  -- it -- the reviewing court 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?

Elizabeth B. Prelogar: So I think that that would raise distinct issues in light of the different history that would be in play in that kind of hypothetical.

There has not been a longstanding history of courts deferring to agencies when it comes to interpreting the Constitution, so I think there could be a unique Article III interest at stake there.

But the -- the history runs in precisely the opposite direction when it comes to statutory interpretation, where agencies themselves are charged with administering it because, as we've tried to explain, Chevron was not an innovation, it was not something new.

These principles of deference go all the way back to the  -- the very founding years of the republic.

They're reflected in things like mandamus practice, where virtually all  executive action for the first hundred years of our nation's history was reviewed deferentially, and then it was continued in a long line of cases from this Court recognizing specifically  that in a circumstance when you have the Executive administering the statute, Congress could delegate and could expect for those delegations to be respected.

Clarence Thomas: I think mandamus is a little bit different and the other extraordinary writs in that they  -- that you had quite a high hurdle before they became applicable, but back to  -- we normally say that this Court reviews questions of law de novo, and that includes statutory and constitutional.

How would you distinguish that normal practice from what you're saying?

Elizabeth B. Prelogar: Well, I think it is more nuanced than that.

I certainly take the point that the Court reviews many legal questions de novo, but that's not invariably the case.

There can be issues that arise under  distinct statutes that set forth more deferential standards of review.

AEDPA is a good example of that.

It --there can be circumstances like mandamus, where the nature of the action itself  dictates a more deferential standard of review. And I just don't think it would be accurate to say, as a uniform, across-the-board matter, de novo is the standard that always and invariably applies.

That's inconsistent with case s from this Court that were cited in Chevron, going back to the early 1800s, things like Edwards' Lessee versus Darby, where the Court itself was recognizing that in a variety of contexts where you have ambiguity in particular and you have an expert agency charged with administering the statute, deference can be warranted.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Alito?

Samuel A. Alito, Jr.: Can you provide a concise definition of what "ambiguity" means in this context?

Elizabeth B. Prelogar: Ambiguity exists when the court has exhausted the tools of interpretation and hasn't been able to arrive at confidence that there is a right answer that Congress spoke to the issue.

Samuel A. Alito, Jr.: Well, as Justice Kavanaugh's recent que stion presented, in cases that don'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 that would seem to suggest you never get to step two.

Elizabeth B. Prelogar: But the relevant question at step one is whether Congress is, in fact, resolving it or delegating it to the agency.

So I agree that in a circumstance where you don't have an agency, the Court can't give effect to any delegation and, instead, the backup option in a situation where an agency would otherwise be available is 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.

Samuel A. Alito, Jr.: Well, I come back to

Elizabeth B. Prelogar: And think about a term like "reasonable."

Samuel A. Alito, Jr.: -- 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 our tools and we can't figure out what it means, then it's ambiguous. So do you want to provide an alternative definition?

Elizabeth B. Prelogar: So I think maybe the best way to try to clarify what the definition I'm trying to give is to use an example of something like a statutory term --

Samuel A. Alito, Jr.: No, I  --

Elizabeth B. Prelogar: -- like "reasonable."

Samuel A. Alito, Jr.: -- 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 in the many different cases that come before them.

Elizabeth B. Prelogar: The Court gave this definition in Kisor five years ago with respect to Auer deference, and I think it's the right definition to use  --

Samuel A. Alito, Jr.: And what is it?

Elizabeth B. Prelogar: -- here as well.

Samuel A. Alito, Jr.: What is it?

Elizabeth B. Prelogar: When a court has used or exhausted the tools of interpretation and doesn't believe that it reveals a right answer.

In that circumstance, Chevron said the right way to think about that statute  --

Samuel A. Alito, Jr.: Well, I -- I think, if you  --

Elizabeth B. Prelogar: -- the real right answer there is a delegation.

Samuel A. Alito, Jr.: But, again, I think you  --you're running into the problem that we never do that in cases that don't involve an agency.

Elizabeth B. Prelogar: Because, in those cases --

Samuel A. Alito, Jr.: So I think you've got to provide a different -- a different definition.

Now what I heard you say at a couple of times -- a couple of times during your argument was it's when we can't figure out -- when we don't -- when we can't figure out what Congress intended.

Is  --is that what you mean to say?

Elizabeth B. Prelogar: That is the inquiry that Chevron prescribes that you should be -- and this is drawn from Footnote 9, which is another formulation of this, use the tools of interpretation to see if they reveal Congress's --

Samuel A. Alito, Jr.: What do you mean by what Congress intended?  Do you mean  -- 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 specific question that is before the court? Then you'd always get to step two.

Elizabeth B. Prelogar: No.

So I don't think it's about individual legislators' intent. I think the Court in Chevron used the word "Congress," but you're really looking at the statute and what the statute reveals about whether it's resolving an issue or not.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: There hasn't been much discussion on why this is entitled to statutory -- to stare decisis consideration. There's been an argument by opposing -- Petitioners that it's not because -- it's not  really a holding of a case, it's a method only, and we have said in the past that a method that lower courts have to use is subject to change in  -- change we can make without considering stare decisis.

So could you address that argument?

Elizabeth B. Prelogar: Yes.

And I think that Petitioners have pointed to two relevant types of cases that they suggest just mean stare decisis doesn't apply here or it applies in particularly weakened form.

First, they say the Court has sometimes changed the interpretive tools it consults.

Things like legislative 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 parallel at all because the Court has never distilled those kinds of interpretive tools into a governing framework.

It's never, for example, dictated to lower courts you should be applying legislative history in all cases.

And so I  don't think that it has the same kind of roots in the type of 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 directi ves. The second case they 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 said that is entirely a rule of internal judicial management about how courts decide issues and sequence their decision-making process.

It doesn't have outward-looking consequences, and it would be foolish to require Congress to step in to fix it.

There too, I think that the considerations run in precisely the opposite direction here because Chevron is not just a  -- a  -- a -- a binding framework about how courts conduct their business; it also gives notice to the legislature about how its statutes will be construed.

And if the Court got this wrong when Chevron was decided and was wrong about legislative intent, Congress is there at the ready and is perhaps the best part or institution in government to be able to correct it and actually say going forward what it wants  the ground rules to be.

And 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 applying the strongest form of stare decisis to Auer deference.

My friends have largely ignored Kisor's analysis on this.

This was the majority of the Court where the Court said Congress can step in, these deference decisions are balls that are lobbed into Congress's courts, and there are big reliance interests at stake here because there are dozens in that case, here thousands, of decisions that could stand to be displaced and create chaos if Chevron is overruled.

So I think that from a stare decisis perspective, that precedent counts as precedent too.

Sonia 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 a legitimate reliance interest.

And the second argument against reliance is that no one should have reliance on a wrong interpretation basically.

Elizabeth B. Prelogar: Yes.

And I think that those kinds of arguments are inconsistent with Kisor and also inconsistent with what we know about what happens in the real world.

You know, there are agency regulations out there that have been on the books for decades.

People have made investment decisions on the basis of that.

People have decided what contracts to enter into on the basis of that.

States in cooperative federalism programs have designed and invested their resources into their share of that program.

And all of that could be thrown into disarray if now it can be subject to renewed challenge on the basis that that regulation was upheld using the wrong -- answering the wrong question, not looking at whether it conflicts with some purportedly better interpretation of the statute.

Sonia Sotomayor: Thank you.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: There's been a fair bit of talk, General, 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 judges may have different tendencies, you know, which might be temperamental as much  as anything else to find ambiguity, because of that, there's going to be some variability.

And  it's hard to argue that will be  --there will be some variability, but could you talk about the variability in the alternative scenario?

Elizabeth B. Prelogar: Yes.

And  --and I think that this is a really important point to focus on because, as I was trying to say earlier, in a world without Chevron, it's not as though Congress is always going 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 left with no certainty about what Congress was trying to do.

And in that 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 fair 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 ultimately fill the gap in administering the statute, and that's going to create problems for a couple of different reasons.

Elena Kagan: And those differences, to go back to Justice Alito's earlier question, I mean, those differences were part of the impetus for Chevron because those differences were looking awfully idealogical in nature, awfully partisan in nature, and Chevron, all the empirical evidence suggests, dampens that kind of idealogical division between courts.

Elizabeth B. Prelogar: That's right. There is good empirical evidence to support that judges have an easier time reaching common ground under the Chevron framework and at least identifying when they can agree that Congress did not itself resolve an issue than they do when they have to ultimately go on and try to figure out what they are going to say is the bottom line of the best way to put the statute into operation.

So I think that that is rooted in Chevron, and it just reflects as well this  uniformity concern, one of the basic justifications for Chevron and one of the reasons why this inference of legislative intent is sound, because agencies can provide that kind of uniform rule for the nation, subject to the ground rules, of course, of judicial review under Chevron.

But I think that the alternative world where there's no Chevron is that there will open up wide disputes among the lower courts, maybe on these mine-run statutory interpretation questions in complex programs, things like Medicare and Medicaid, and I think that it could mean that regulated parties are subject to different rules in different parts of the country.

You lose the uniformity v alue, and it diminishes 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.

Elena Kagan: Thank you.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: You agree that courts under the APA have to review questions of law involving the Constitution de novo?

Elizabeth B. Prelogar: Yes.

I think there might be certain circumstances with respect to certain provisions where more deferential standards apply, but  I --

Neil Gorsuch: But, as a general rule  --

Elizabeth B. Prelogar: -- I certainly agree they don't defer to agencies.

Neil Gorsuch: Okay.

And  -- and you agree that, elsewhere in the law, when posed with questions of law, courts review those de novo, generally speaking?

Elizabeth B. Prelogar: I think that, in many contexts, it's de novo.

Certainly not in all contexts.

Neil Gorsuch: The examples you gave, I th ink, were AEDPA and mandamus, right?

Elizabeth B. Prelogar: Yes.

I think those are two good examples of situations where there are specifications of a standard of review that's more deferential.

Neil Gorsuch: I wonder whether, though, those have more to do with remedies, right?  In a mandamus case, a court should say  or can say what the law is.

It just can't provide relief unless its 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 impose a higher standard before we grant access to the fisc.

Elizabeth B. Prelogar: So I acknowledge that I think that many of those doctrines 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 the mandamus cases, what courts were traditionally doing is saying let me put aside what the executive officer did and just interpret the statute de novo and say what I think the right answer is.

And the right answer is the executive was violating the law, but not clearly outside the scope of the executive's authority.

Neil Gorsuch: But he could do so, as  -- just as we do in the qualified immunity context.

There are two steps to that analysis.

Elizabeth B. Prelogar: But --

Neil Gorsuch: You can just go to the second one and resolve it and say, ah, it's not clear, so I can't provide a remedy.

Elizabeth B. Prelogar: But I think, for Petitioners to succeed on their Article III argument, they have to show not just that you can  --

Neil Gorsuch: I'm not asking about Article  --

Elizabeth B. Prelogar: -- review de novo, but you have to.

Neil Gorsuch: -- I'm not asking about Article III.

I'm just asking about the APA and what it means.

Elizabeth B. Prelogar: Yeah.

Okay.

So sorry if I misunderstood.

I -- I do think, though, that what the history shows at the very least is there has been no fundamental rule in this country leading up to the APA's enactment that you have to review all questions de novo. And that's where the history of the APA really matters.

This Court has several times recognized the APA was a restatement of existing judicial practice when it came to 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.

Neil Gorsuch: Yeah.

On  --on those --

Elizabeth B. Prelogar: So I think to say that  --

Neil Gorsuch: -- on those, it's -- it's absolutely true, you -- you -- you do point out cases like Edwards' Lessee and others where this Court gave respect to the federal government's contemporaneous and uniform interpretation of the statute.

And that's exactly what Skidmore does. It gives respect to contemporaneous and uniform interpretations.

But Chevron, it doesn't matter whether it's contemporaneous and uniform.

It could be novel and out of the blue and inconsistent with everything that came before, and it still gets deference, right?

Elizabeth B. Prelogar: So I -- I disagree with the idea that those cases stand for th e more limited principle that's  -- that --

Neil Gorsuch: Well, I'm  -- I'm reading from them, but okay.

All right.

So let's let --

Elizabeth B. Prelogar: Well, there are -- there are dozens of them.

Neil Gorsuch: -- let's let --

Elizabeth B. Prelogar: So I acknowledge that they use varying formulations, and maybe you can find some that look a little more like Skidmore.

I think I have a lot that look a whole lot like Chevron --

Neil Gorsuch: Let's say you don't. Then what?

Elizabeth B. Prelogar: Well, I think I  -- I just have to dispute the premise because --

Neil Gorsuch: No.

No, fair enough.

Elizabeth B. Prelogar: -- look at Gray versus Powell, look at NLRB versus --

Neil Gorsuch: Yeah.

Elizabeth B. Prelogar: -- First Publications.

Neil Gorsuch: Yeah.

Elizabeth B. Prelogar: You know, I think that these are -- these are cases in the 1940s that were leading cases in administrative law.

Neil Gorsuch: Oh, I -- I wasn't -- I was -- put  aside what happened in the '40s because it went back and forth and wound up in Skidmore.

Elizabeth B. Prelogar: But, at the very least --

Neil Gorsuch: But  --but -- but  --

Elizabeth B. Prelogar: -- Justice Gorsuch

Neil Gorsuch: -- but you wanted --

Elizabeth B. Prelogar: -- where there's no

Neil Gorsuch: -- you wanted to say it's a very old thing.

And the old cases don't look anything like Chevron.

They look a lot like Skidmore.

Elizabeth B. Prelogar: I  -- I disagree with that.

Some of them  --

Neil Gorsuch: Okay.

Elizabeth B. Prelogar: -- say you should give it controlling weight, it should tip the balance.

They're not saying just pay attention to it if maybe it has the chance of persuading you.

Neil Gorsuch: If it -- if it's contemporaneous and if it's uniform, right?

Elizabeth B. Prelogar: No, not all of the cases --

Neil Gorsuch: Okay.

Elizabeth B. Prelogar: -- pay attention to that fact.

Neil Gorsuch: Okay.

Elizabeth B. Prelogar: Some of them recite that, but others don't.

Neil Gorsuch: All right.

I'll  -- I'll go look again.

That's fine.

Elizabeth B. Prelogar: And I just want to add as well  --

Neil Gorsuch: I -- I have another question, though.

Chevron, you emphasize, is  -- is value-neutral and it'll sometimes favor industries that are regulated and sometimes favor the government.

And I can certainly see that in  --in scenarios where we talk about the flip-flop of administrations and 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 regulatory capture.

And I -- I don't worry in a Chevron regime about those people.

They can take care of themselves, okay?  There is political account, fine.

The cases I saw routinely on the courts of appeals  -- and I think this is what niggles at so many of the lower court judges  -- are the immigrant, the veteran seeking his benefits, the Social Security Disability applicant, who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote, generally speaking.

And, there, Chevron is almost always and, in fact, I -- 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.

Elizabeth B. Prelogar: Sure, and I have a couple of different reactions to that.

You know, one is to say that I, of course,  acknowledge that the way that Chevron operates, it gives effect to agency interpretations even  in circumstances where that might be oppositional, some of the categories of  individuals that you're identifying.

But, if it does that, it does that in accordance with Congress's intent and wishes because even my friend agrees that there are certain delegations that Congress can make to agencies and  --and certain gap-filling that agencies can do at least with the broad and capacious terms, and at that point, it's just putting into effect what Congress decided.

So I don't think that there is any kind of fundamental flaw in giving effect to Congress's statutes in that regard.

Neil Gorsuch: But you've left open the possibility that a judge, if left to his own devices, would say the fairest ruling is in favor of the immigrant, it's in favor of the veteran, and it's in favor of the Social Security Disability applicant, but because of a fictionalized statement about what Congress  wanted when it didn't think about the problem, the government always wins.

Elizabeth B. Prelogar: Well, I think there are a couple of different ways to come at that  concern.

One is to emphasize again that if it's not just that in the exercise of discretion the  Court would think something is fairer and fill the gap that way, but, rather, the Court thinks actually the reason it's fairer is because I have a -- a -- a sense that Congress spoke to this, I can determine it based on all of the tools, you can  --

Neil Gorsuch: Well, but we --

Elizabeth B. Prelogar: -- resolve that at step one.

Neil Gorsuch: But  --but that doesn't work, though, because you've said that it doesn't matter whether Congress actually thought about it and that --

Elizabeth B. Prelogar: Yes.

So  --

Neil Gorsuch: -- and that there are many instances where Congress didn't think about it.

And in every one of those, Chevron is exploited against the individual and in favor of the government.

Elizabeth B. Prelogar: I don't think it's fair to treat that as an exploitation.

Congress  has been aware of the rules here.

It could change Chevron at any time.

It could displace it if it thinks that it's being used  --

Neil Gorsuch: All right.

Elizabeth B. Prelogar: -- in these circumstances where it's not warranted.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: A few questions. I think the other side's argument suggests that the basic analytical concern at the heart of Chevron is that it treats law as policy and that that's antithetical to our constitutional structure and the rule of law.

And that's why the Footnote 9 question is so important, I think, because, if you use the traditional tools in a non -agency case and got an answer, that suggests it's a statutory interpretation question.

And you're saying no, you can stop short of that in an agency case at some difficult-to-define point and then treat the rest of the case as a -- as a policy call for the executive branch.

And that's treating what was a law question in a non-agency case as a policy question in an agency case, and it's the same question.

So it's transforming law into policy. And that's 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 can't just treat the laws passed by Congress as mere expressions of policy that they can change.

Respond to that.

Elizabeth B. Prelogar: So I hear that concern, and I think the way to address that concern is to reinforce the principle in Footnote 9.

We agree that that's an important principle.

And to the extent that there are agencies out there or lower courts out there that are effectively not giving the -- the effect to Congress's own enactments, then a court can police that and it can put into effect the Footnote 9 principle in a robust way with a rigorous analysis.

That's the  kind of instruction the Court gave in Kisor.

And, Justice Kavanaugh, I think it's not a -- a different question in the agency  context and in the non -agency context.

What  I understand Chevron to be doing is telling the court in the first instance figure out if Congress spoke to this issue and, if so, implement it, but hold open the possibility that Congress didn't speak to the issue.

And in that context, if Congress has given the agency this primary critically important role to administer the statute, that should merit deference if the agency still stays within the bounds that Congress set.

In a non-agency case, you don't have the agency to rely on, but you might still end up at the end of the interpretive process thinking Congress didn't precisely speak to this issue, but what is the best I can do to figure out how Congress would have resolved it or what is the interpretation most consistent with the overall statutory scheme here?  The right way to resolve this case, Congress, in fact, would know that courts are going to have to do that in a context without an agency, and so it's still following the terms of the statute, but I think it would be a fiction to suggest that what the Court is doing there is just following Congress's explicit directions on the matter --

Brett M. Kavanaugh: Well, can I ask  --

Elizabeth B. Prelogar: -- because that's at war with the idea that there is genuine ambiguity sometimes.

Brett M. Kavanaugh: Yeah.

I think it's important to distinguish, and I think you would distinguish, statutes that involve legal questions of statutory interpretation and then there are tons of statutes, to go back to the AI example, that explicitly confer broad policy discretion on agencies.

Elizabeth B. Prelogar: Yes.

Brett M. Kavanaugh: And that's where State Farm kicks in, and that's where we've always been deferential.

Elizabeth B. Prelogar: Yes, correct.

Brett M. Kavanaugh: And you acknowledge those are two different kinds of statutes, a statute that says -- for example, one statute might say no  --no one can catch more than 50 fish today, the next statute may say the agency can define what a reasonable number of fish that can be caught in a particular day.

That second statute's  conferring broad policy discretion to define the limit on the agency.

You agree those are distinct?

Elizabeth B. Prelogar: Well, I  -- I think that one is obvi ously a clearer bestowal of discretion on the agency, but I think it just shows that Congress can legislate in a variety of ways.

And if you think about some of these examples, note --

Brett M. Kavanaugh: Can I just stop you right there?  And so you agree Congress can legislate broad policy discretion to an agency, can  -- can grant broad policy discretion explicitly through words like "reasonable," "appropriate" --

Elizabeth B. Prelogar: Yes.

Brett M. Kavanaugh: -- "public interest"?

Elizabeth B. Prelogar: Absolutely.

Brett M. Kavanaugh: Okay.

Elizabeth B. Prelogar: And I think that the same question of what does the court do without the agency can sometimes come up in those contexts.

If Congress has said, to  --to borrow from the Chief Justice's example,  reasonable truck lengths and, you know, there isn't an agency interpretation of that, the  court's going to have to do its best.

Brett M. Kavanaugh: Right.

Elizabeth B. Prelogar: But I understood my friend to concede that is actually meaning to create a zone of discretion  --

Brett M. Kavanaugh: Yes.

That's a  --

Elizabeth B. Prelogar: -- for the agency to operate in.

Brett M. Kavanaugh: -- that's a State Farm question as I would see it.

Okay.

Two more questions because I want to make sure the concerns of the other side get aired and you have a chance to respond.

So there's some discussion of this would be taking power from the executive and granting it to the judiciary.

I guess a different conception of this, of Chevron, is that it's taken power from Congress and shifted it to the executive and allowed the executive, in essence, to unilaterally make policy without Congress.

And one of the concerns historically from the beginning of this country was unchecked executive power, and you hear presidents  criticized all the time, whether it's -- you know, Roosevelt or Reagan or Bush or Obama are  criticized for exercising unchecked power.

So the concern is, about Chevron, in essence ushering in aggressive assertions of unilateral executive power, and that's the concern that I think the other side has, not about the judiciary taking power but the judiciary having taken it from Congress and shifted it to the executive, contrary to our usual concerns.

Elizabeth B. Prelogar: So I disagree with their characterization that Chevron permits the executive to claim power away from Congress and Congress is powerless to do anything about that. You know, in the first instance, of  course, Congress has to make the delegation to the agency, and the Court can enforce that.

And so Congress knows, as this Court has said in City of Arlington, to speak capaciously when it wants to bestow discretion, to speak plainly when it  wants to rein an agency in and resolve an issue itself, and also Congress can change the rules  of deference that apply in any context.

There have been particular statutory schemes where Congress has said deference doesn't exist in this context, don't apply it,  or defer to this agency and not this other agency.

So  --so Congress is really in the driver's seat here.

Brett M. Kavanaugh: Well, most  -- this is a technical point.

Most presidents would veto a bill getting rid of Chevron deference and so  -- but that's a technical point.

But last -- (Laughter.)

Brett M. Kavanaugh: -- last  --last question, which is there was talk about democratically elected political branches, but I just want to get your agreement on something that I think you'll agree on, which it's 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 not operating as a king, not operating outside the bounds of the  authority granted to them by the legislature.

Do you agree that's a proper judicial role, I would assume?

Elizabeth B. Prelogar: I, of course, agree with that, but I think Chevron is consistent with that.

The court polices the executive at  step one by ensuring that Congress's own choices are put into operation, and it further polices the executive at step two.

As the Court said in Kisor, reasonableness is a test that agencies can fail.

And so there's work to be done  -- done there too to make sure the agency doesn't transgress some outer bound or line that Congress set.

Brett M. Kavanaugh: Thank you very much.

John G. Roberts, Jr.: Justice Barrett?  Justice Jackson?

Ketanji Brown Jackson: So just picking up where Justice Kavanaugh left off, doesn't the Court have to not only police the other branches but itself as well?  And by that, I mean, to the extent that the other side raises the concern that, you know, they're treating law as policy, isn't there a concern that policy questions  might be treated as law and that what Chevron is doing is also helping the Court to police its own determinations in that regard?

Elizabeth B. Prelogar: Yes.

And I think a way to illustrate this is to think about a delegation like the deceptive practices as  defined by the Secretary.

If there were a statute that said that, of course, a court couldn't come in and say, well, the Secretary has said what's a deceptive practice, but I -- I think that actually there's a better way to think about the concept of what is deceptive and, therefore, I'm going to override what the agency has done or not give any weight to it.

Congress has directed there that what you should do as a court is pay attention to what the Secretary did because the Secretary was given that role in administration.

Obviously, Chevron applies to circumstances where that delegation is not quite as explicit, but it's meant to identify the same basic idea where I think the courts' role then is to give effect to what Congress has done.

Ketanji Brown Jackson: But why isn't the answer what  -- what the other side says, which is, really, make Congress say that?  In other  words, you know, it seems to me their argument is, when we're policing this line between what is law and what is policy, we should require Congress to say the Secretary gets to make this decision, and when it doesn't, then  I guess we look at it as a legal question that the courts can decide.

Elizabeth B. Prelogar: So I think that that argument would have more merit if there weren't so much water under the bridge and the fact that the Court explained when it would identify this kind of delegation 40 years ago. And, you know, Petitioners talked about the reliance interests here and tried to diminish them.

They didn't talk about Congress's own reliance interests in enacting statutes against the backdrop of Chevron.

So I think, at this juncture, to say we're actually going to switch the default and make Congress say discretion is conferred would be really to run to the detriment of Congress's own reasonable expectations with respect to drafting.

And I think it also doesn't account for the category of cases where the language that Congress is using is infused with discretion.

They agree to terms like "reasonable," "appropriate," "necessary."  Those are terms that require greater application to  concrete factual settings to fill in the details, and you can't just interpret those terms in a vacuum.

So I don't understand how this idea of just making Congress say it could function in that kind of world.

And then the final thing is Congress has said something very important here, which is the agency shall administer the statute with regulations or adjudications that have the force of law.

That is part of the statute as well. And I think  --

Ketanji Brown Jackson: And you think that that really carries a lot?  I've heard you use that and focus on that many times when you're talking about a situation in which deference is or should be required.

Elizabeth B. Prelogar: Exactly.

So Congress, in each and every statute where this is going to be applicable, where Chevron deference will even be available, is going to have to have made that judgment in the statute to give the agency that responsibility and role in implementing the statute.

Ketanji Brown Jackson: And let me just ask you about whether or not  --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 -- to -- to go to step two.

And what I'm thinking about is what I mentioned previously with your friend on the other side, which is that some scholars have actually identified different kinds of ambiguity.

So, in one scenario, we have a statute that uses a broad term, and that term encompasses a range of reasonable meanings. There are three or four different ways that could be reasonably  -- you know, the meaning of "stationary source," for example.

But then there's also the kind of ambiguity in which a statute can mean only one thing, either A or B, perhaps because of the way the  -- the -- the language, you know, is put forward in the statute.

It's just unclear whether it means A or B.

I take these scholars to mean that, really, in -- the former scenario is the one in which we have a situation, you know, where  Chevron deference would be required.

And could the Court say something like that?  And let me just clarify.

I mean, Chevron, I look at it as that's reducing to a policy choice, that once we are in the world of finding the kind of ambiguity where there are a number of reasonable alternatives in terms of making this determination, then, you know, it's just going to be a policy choice as to which one, you know, Congress  --Congress wanted in some sense or which entity Congress wanted to make that decision.

Elizabeth B. Prelogar: So I -- I think that there -- certainly, this Court could provide more guidance to lower courts and, in particular, identify the types of statutory issues that might clearly connote discretion, there are going to be some easy calls on this, and the types of situations where there might be multiple, possible ways to implement and play that will signal that there really is a zone of discretion and the agency should have some flexibility.

My only concern with going down the road of saying there's some fundamental difference with respect to particular terms that might be subject to only two possible ways to be implemented is that, you know, there are kind of an endless number of statutes out there and all kinds of varieties, and I worry that it might lose sight of certain contexts where Congress actually was comfortable with either way of implementing that particular term, even if there are only two possibilities, and did, in fact, delegate that issue to the agency.

So I wouldn't want some kind of, you know, bright-line rule to diminish the courts' ability to recognize and implement that kind of delegation.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, General.

Mr. Martinez, rebuttal?

Roman Martinez: Thank you, Your Honor. Just a few points in rebuttal.

First of all, I think it's really important to be very clear about what Chevron does.

It takes the power to say that the law  -- what the law means, to say that the law means X, and it takes that power away from courts and it gives it to agencies, and it then forces agencies  --forces courts to adjudicate the rights of individual litigants that are in front of them based on a version of the law that the courts themselves do not believe is correct, do not believe is the best interpretation.

Neither Congress nor this Court can create a doctrine or legislate a statute that -- that effectuates that reallocation of interpretive authority.

My friend on the  other side said that the purpose of Chevron is to set the ground rules on how the -- the different branches of government should operate.

With respect, I think the Constitution sets those ground rules, and the Constitution makes clear that the judicial power, the power to say what the law is, the power to interpret the law, rests with courts, not with agencies, and  -- and certainly not with Congress either. And I think the APA reinforces that.

The Solicitor General tries to  -- to rescue or reconceptualize Chevron by I think  taking issue with our argument that under Chevron, if the court thinks the best  interpretation is X, it sometimes is going to have to apply Y because the agency told it too.

I think, if you look at Footnote 11 of Chevron, that is exactly what Chevron itself says.

It tells the agency -- the court that it has to apply an interpretation that the court itself would not choose, in other words, an interpretation that the court itself does not think is best.

The Solicitor General also describes Chevron as applying, and the formulation that I heard a lot today is it applies if the agency didn't resolve the question, which is a kind of innocuous phrasing, but what is really meant by that is that Chevron applies in cases of ambiguity.

And ambiguity has always been understood as a situation where reasonable people can disagree about what the law mean s. And that just broadens the scope of deference.

Ambiguities are all over the place. Courts resolve ambiguities all the time.

That's core to the interpretive function.

And so there's no reason to think that just because Congress has accidentally left an ambiguity in a statute, that what it's really trying to do is have that ambiguity resolved by policy decisions  made by an agency.

Justice Barrett asked about the  -- the justification for Chevron and whether the intent justification is really valid.

And I took my friend to -- to essentially concede that the delegation is fictional but nonetheless to say that we should apply it anyway as a presump tion. I  -- I -- I don't think that you can get the mileage that you need to get out of the intentional delegation theory after you've conceded it's fictional because the  only reason that intentional delegation theory has weight is if it's actually what Congress wanted to do, and if Congress didn't actually want to delegate it, then we shouldn't be, you know, basing our doctrine and reconceptualizing how we think about statutory interpretation based on this fictional premise.

Here, there's really no reason to think that Congress actually wanted to delegate  policymaking authority to agencies to resolve ambiguity  -- any ambiguity that arises in -- in any statute administered by the agency.

I think the government's sort of solution to that problem is to propose a clear statement requirement on Congress.

Hey, you can just legislate more clearly.

But ambiguities are  -- are -- are accidental; they're unintentional.

And so I don't think that works. I think that would impose a massive clarity tax on Congress that's unjustified.

With respect to the history, Your Honor, I think the mandamus precedents make very clear themselves that they're talking about remedies, and those cases like Decatur and Dunlap expressly say that if we were interpreting these  -- these legal issues in a different context, where we weren't limited by the limits on mandamus remedies, we would apply our  -- our best and independent judgment. With respect to the APA, the Solicitor General is looking at text that -- that requires courts to interpret statutory provisions and  -- and is saying that that rule, interpret statutory provisions, is consistent with  Chevron, which she describes in her brief as allocating interpretive authority to agencies.

So the statute says courts do the interpretation.

Chevron says agencies get interpretive authority, not courts.

These are  inconsistent.

Chevron's not consistent with the APA.

Finally, with respect to the -- the course correction idea or the amend it, don't end it approach, I would just respectfully suggest that you've tried to amend this.

You've tried to course correct over and over again over the years.

That's why we have a Chevron doctrine.

It's overladen with a lot of bells and whistles.

It's very hard to apply in practice.

I think, in -- in -- in the real world, if you try to amend it without ending it, what's going to happen is you're going to put a lot of pressur e on the Major Questions Doctrine. People are going to be coming to this Court every three or four years asking you to adopt a new limitation, a new caveat, a new threshold test.

We would respectfully suggest that the solution here is to recognize that the  fundamental problem is Chevron itself. Interpretive authority belongs to the courts.

If we have the best view of the statute, we should win this case.

Thank you, Your Honors.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.