Courthouse Steps Oral Argument: Loper Bright & Relentless

[Music]

 

Chayila Kleist:  Hello, and welcome to this FedSoc forum webinar call. Today, January 18, 2024, we're delighted to host a Post-Oral Argument Courthouse Steps on two cases, Loper Bright Enterprises v. Raimondo and Relentless Incorporated v. The Department of Commerce, both of which were argued before the Court just yesterday.

 

      My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's program, as The Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, I'll keep my introduction of our guest today brief, but if you'd like to know more, you can access his impressive full bio at fedsoc.org.

 

      Then we're fortunate to have with us John J. Vecchione, who is a senior litigation counsel for the New Civil Liberties Alliance, where he focuses in representing clients against the administrative state. He was previously the President and CEO of a nonprofit called the Cause of Action Institute. And prior to joining Cause of Action, he practiced at a number of D.C.-area law firms, including the eponymous John J. Vecchione Law, PLLC.

 

      Mr. Vecchione focuses his practice on strategic litigation in federal, district, and appellate courts, including the Supreme Court of the United States. He's a member of the bars at the state of New York, the District of Columbia, the Commonwealth of Virginia, as well as the Supreme Court and many other federal courts. He's also published pieces in The Wall Street Journal, Washington Times, and a variety of other forums. And perhaps most pertinent to our conversation today, he is the counsel of record the Relentless case. And I'll leave it there.

 

      One last note: Throughout the program, if you have questions, please submit them via the question-and-answer feature so they'll be accessible when we get to that extended portion of today's webinar. With that, thank you all for joining us today. I'll hand it over to Mr. Vecchione for a set of opening remarks.

 

John Vecchione:  All right. Thank you very much for that kind introduction. And I want to thank The Federalist Society. This is always, I think, useful for anyone who has an interest in the Supreme Court. These are always a good opportunity to ask questions which you wouldn't normally get.

 

      So we had two cases argued before the Supreme Court yesterday. Relentless v. Commerce, which was our case at New Civil Liberties, was argued by Roman Martinez of Latham & Watkins. And then there was the Loper Bright case, which was brought by my old friends at Cause of Action that emerged from the First Circuit and was argued by Paul Clement.

 

      And so the way it worked, which is a little unusual, was that we went first, and we had regular argument. Then Justice Jackson, who was recused because she had heard the oral argument of Eric Bolander's of Cause of Action in the D.C. Circuit -- And they normally recused in those circumstances, so it was an eight-member bench when Loper Bright came up. But the questions were continuous from one argument to the next.

 

      One interesting thing that Supreme Court did in this case was allow all the amici briefs in Loper Bright to be read in Relentless, and I think they saved a lot of trees that way. So we had our own amici as well, but any anybody who filed in Loper Bright, it's in our case. So that's the setup of how the two cases worked.

 

      And now I just want to give a slight synopsis of what the cases were about and what the question presented was to the Court. I think most people tuning into this will have some idea, but just to put us all on the same page, Loper Bright was filed in the District of Columbia, and their clients were fishermen, primarily from Cape May, New Jersey, herring fisherman.

 

      And in the Loper Bright case, the district court had found that the text was clear that the agency was allowed to put at-sea monitors. They're people who go on the boat and count fish and make sure all the rules are being followed, that sort of thing. They could put these at-sea monitors on the herring boats, and they could charge.

 

      They could force each of those boats, which are all small businesses, to enter into contracts with at-sea monitors who do nothing for the boats. They only report to the government information the government wants. Even though they're making more than fishermen in a lot of cases, they are not doing anything for the boat. They are a burden to the boat.

 

      And the Magnuson-Stevens Act, which is at issue, was amended in 1990 to say that each boat could be forced to carry observers, and the Courts have determined these are a subset kind of observer. But they didn't say who paid for it, but for 20 years, the federal government paid for observers. They appropriated money, and that appropriation paid for the observers.

 

      The agencies and national fisheries and NOAA and Commerce kind of all work on this. They all determined that they wanted more of these monitors, so they made at-sea monitors who have slightly less training than the former observers, and they were going to force the herring boats to carry them and pay for it.

 

      And it's nowhere in the statute. And in fact, there are three places in the statute that has cost shifting to the industry, and it's not in the New England Herring Fishery. But the D.C. district court judge said, "Oh, yes. It's clear." And that's the only one because it went up to the D.C. Circuit, and they said, "No, this is ambiguous." And they went through all the step one processes and they used all the canons and said, "No, that is ambiguous. So we're going to use Chevron."

 

      And under Chevron, surprise, the government wins. So that is the posture. It went up out of D.C. to the Supreme Court with the question should the Supreme Court overrule or modify Chevron? There was a question that does Chevron apply if the statute is silent, and the Supreme Court took that question.

      In the First Circuit, where we were in Relentless, the district court also found it ambiguous. Chief Judge Smith went through it in an opinion with a lot of fish puns, and he went through the statute. He found it ambiguous. He did almost the exact same analysis as the D.C. Circuit did, but he didn't have the benefit of that; that hadn't happened yet.

 

      But it goes up to the First Circuit, and the First Circuit said, "Well, under step one or step two, I don't think they did the analysis that the Supreme Court keeps saying in both these arguments you're about to hear about that you're supposed to do." But they said, "Yeah, go ahead and do that" in the First Circuit.

 

      So we petition for cert, and because of how brilliant my petition for certiorari was, they took our case as well. And I'm sure the fact that Justice Jackson was recused in Loper Bright was not as important as how brilliant that that petition was. But in all seriousness, they wanted the opportunity to have a nine-member bench, so they took the case.

 

      And so it gets to the Supreme Court. Two cases: Should Chevron continue or should it be overruled? And they denied taking any question either for Loper Bright or for us on any other matter. In Relentless, I wanted the necessary and appropriate language of the Magnuson-Stevens Act to be -- I wanted them to say that that is not another license for the agencies to do whatever they want. They didn't take that. There were a lot of questions about that sort of thing yesterday.

 

      So that's how the case has come. Our clients are also hiring fishermen, but they fish on freezer boats, and they fish for things like two kinds of squid and butterfish. So they're not just herring fishermen, and this regulation hit them, I think, worse than anyone. Because they're freezer boats, they stay out at sea for 10 to 14 days rather than 3 or 4 days.

 

      So they've got these guys on their boat for a longer period of time. And sometimes they're not even fishing for herring, but they've got their herring monitor board. So they're paying for this very expensive guy, $710 a day, out of revenues from some other fish that that isn't monitored. So it was extremely burdensome for the client, and we were hit very bad by this regulation that is nowhere in the statute.

 

      Because the last thing I want to say about how it got here was that, when this was amended in 1990, as far as I can tell, nobody opposed putting observers on the boats. Certainly, my clients didn't. I haven't seen any of the Loper Bright clients. Nobody said we were not going to take observers. That's not what this is about. Twenty years later, the agency makes up this at-sea monitors being paid by the fishermen, and it's nowhere in the statute. So the problem is you'd have no chance to oppose this law.

 

      So we get to the Supreme Court, and it was very, very hot bench. I put in my notes that Thomas asked the first question. We had a constitutional argument. Neither party disagreed with the other party on any matter of law, but we were focused more on the Constitution rather than the APA because there's lots of reasons Chevron's bad. And our reasons were Article III—judges say what the law is, not agencies—and also due process in that you're in litigation with a party that's telling the judge what the law is. And the unfairness of that should be manifest, in our view.

 

      And so Thomas's first question was is any deference allowed under Article III? I think that's what he was getting at. And so he was looking ahead. And a lot of these questions I'm going to show are good just because everyone's asking what happens when we overrule Chevron? What comes next down the line?

 

      And I thought, as I listened to all those questions, that even people who weren't giving the game away were kind of giving the game away. I'm heartened by the fact that they wanted to know what happens in the absence of Chevron, and all the justices asked those questions, I'm pretty sure; certainly, Thomas did. Do we have to get rid of all deference?

 

      And then I'll just go through the justices because they asked the same type of questions of Roman in Relentless as they did for Paul in Loper Bright. But then Kagan came out of the gate, and I put in my notes, well, she came to fight because she loves expertise, she loves the agencies having the ability to move this way and that, and she does not believe that some legal questions are binary. And so she peppered Roman with those questions. She later did it for Paul as well. And I think they showed that there really is a difference between law and policy, but Kagan was unshakable on that.

 

      Then, as she's doing this, Gorsuch jumped in, and he played his hand open. He does not like Chevron. It's known since he was on the circuit court he didn't like it. He's put it in there. And yesterday was no exception. He explained, I think, in the most poignant terms. And I think you'll be seeing a lot of this because it's true and because it's something that doesn't get said a lot.

 

      He said, "I and other appellate judges see that Chevron is for agency capture. If an industry has captured the agency, they like it. But in Social Security, disability, the disabled don't capture agencies. Veterans don't capture the agencies when they're the ones trying to get benefits. And immigrants certainly can't capture agencies. And all these people are routinely hurt by deferring to agencies for a position that is not the best reading of the law. And Gorsuch was very clear on it, and I would add fishermen are another one who don't control agencies.

 

      Justice Jackson, very worried about judges making policy decisions. She thinks that there is a democratic need to have an elected branch make these decisions, and she is fearful that elective branches won't be making policy if you get rid of Chevron. We responded to that. We certainly don't believe that's the case, but that's what happened.

 

      Barrett and Alito, I'm going to use their questions together because they're kind of interesting. Barrett is, "What's the difference between law and policy?" was her first question, sort of riffing off Jackson. She wants to know where the lines are, and she wants to know from our other questions what's going to happen when Chevron's gone and how big a deal is this.

 

      The chief also; how big a deal is this? How often is it used? And both Roman and Paul just told them the lower courts use it all the time, and they don't use it the way you people are saying about all this rigor. And I think the fact that the First Circuit had no rigor at all is a good fact for the side that wants to explain to the Court that Chevron has failed below. It's failed as a doctrine.

 

      And so Alito went back to, "Well, why do we have Chevron? Why was it so great? Why was it so important? And why, if we get rid of it, will it be okay now?" The answer to that question was now the whole Court, as textualists and originalists, you're not allowed to make up policy as you were in the '60s or '70s. The way I always put it is that, judging in the '60s and '70s, a lot of things came out—bell bottoms, pet rocks—that didn't stand the test of time, and I think that that type of judging that Chevron was meant to correct is out the window now.

 

      And then Sotomayor wanted to know about stare decisis. Both she and Kagan were very big on what happens to all these cases? What happens to all the cases that have relied on Chevron? Is it all jump ball? Do we all have to do it again? And the chief was concerned about that too. The answer is no. They're statutory interpretations. And the Court is very strong that, however a statute was defined by the Court, it's going to stick, except under Brand X.

 

      And I'll end with this aspect of it because I know there'll be questions, and I can get to what all the other justices did through questions. But Brand X came up. And those of you may know that Brand X is a ruling which allows the agency to make one ruling on what the law is, what the law requires, and then a Court to rule on it and say if it's right or wrong. And the agency then can make another ruling, and the Court has to follow their ruling. They can actually change a Court decision.

 

      And I was very close. You can't hear the justice, but it looked to me like Sotomayor turns to Thomas, and they're having a -- it just seems to me, from the time of the questions, that she was saying, "Here I am defending your opinion" because Thomas wrote it. And I think he was saying, "Don't defend me." And Gorsuch gets in, and they all start laughing. I mean, it was a nice moment.

 

      But Brand X got no love, not even from the Solicitor General. Solicitor General Prelogar was her normal, tremendous advocate. She was hitting these things hard, but I don't think she gave a full Court press for Brand X. There was no love for that case yesterday from anybody.

 

      So where does it stand? It stands where we think that it was a very favorable day. You don't know exactly what's going to happen. There are concerns, but I think it's going to be a big case come May or June. And I'll take questions.

 

Chayila Kleist:  Well, thank you for the summary of the case and the facts that led up to it. That was really helpful and a nice summary for those of us who didn't get to listen to oral argument yesterday. We already have questions from our audience. And brief reminder to the rest, if you want to submit those, please use the Q&A feature as we transition into that time.

 

      The first comes from a guest who asks, "Would a decision in favor of the fisherman here potentially jeopardize other federal regulatory programs that mandate the presence of on-site regulators with provisions provided for them, such as the federal meat inspection regulators or air marshals?"

 

John Vecchione:  So this case is not about getting rid of observers; it’s a matter of who pays for it. So neither the Loper Bright folks or where we have ever opposed having observers. Because it's a government job, the government should pay for it, except, even in the Magnuson-Stevens Act, it has a fee-based program in the Northern Pacific.

 

      Some of you may watch The Most Dangerous Catch, right? It's the most productive and profitable fishery in the world up there. And Congress made the decision that those observers would be paid by a fee-based mechanism, they put it. Foreign fisherman, because they're going to be gone -- And Kagan pointed this out. She says, "They're going to leave. So those observers are put on those boats, and they have to contract those observers or have fee shifting."

 

      None of those observers are going to go. They're all going to be on the ships. They're all going to be looking at fish. There's a thing called a lap where all the fishermen split the catch in a certain area. Those are also fee-based mechanism. And as Paul Clement pointed out, all of those have caps on how much they can charge the fishermen, because Congress was really looking at it, but all of them can go in.

 

      Same with air marshals. If the statute says they're paid by the industry, that doesn't have a Chevron problem. The problem is when the agencies are trying to get away from congressional power because, in these cases, they're getting away from the appropriations power. They're getting away from the lawmaking power. They are trying to escape congressional control, and that's not what we want.

 

      So all of the regimes that have inspectors paid for by the government will still exist, and the observers like in the Magnuson-Stevens Act in Alaska waters, they'll still have it as well. Congress said so. This doesn't put any of those regulations in danger.

 

Chayila Kleist:  Got it. Thank you. Next question is multipart. I'll read all three, and you can take it as you will. Audience member asks, "What would be the benefit of getting rid of Chevron? Would new cases be available to push back against agency decisions? And what are the major industry areas where you expect there will be new litigation to follow if Chevron is overturned?"

 

John Vecchione:  So much of what's good about getting rid of Chevron, we'll never see. And here's what it is: The agencies, the bureaucrats themselves, will not do something like this. They won't go, "Hey, how do we get around all the powers of Congress and what the words say, and how do we write a law that we want that we can't get through Congress, and then just show a Court that it's a reasonable interpretation of those words?"

 

      You're gonna see a lot less freelancing by the agencies, by the bureaucrats, because they know that they will have to make this argument to the Court. The statute requires or allows this, not the statute doesn't say I can't do this. So those incentives are going to mean that a lot of bad and oppressive administrative agency regulations are not going to be tried, and we won't see that. We won't know, but I think it's a good thing that'll happen.

 

      In litigation, once again, the question will not be -- The government will not be saying to you when you're in a suit with them, "Oh, we found ambiguity, and now our view has to be the law because we found some ambiguity, and we've convinced the Court there's ambiguity." The question for judge should not be is this ambiguous? It should be what does this law say? And so they'll go back to that.

 

      So I have stressed very strongly in my writings and my statements on this that Chevron makes every actor in our tri-part system act badly. It makes Congress not write clear laws because they figure, "Oh, if my guy is in the White House, then I can get a law I could never get past just by putting ambiguity and making an agency do it. Or if it's something I don't like, I can say, 'Hey, I didn't write that.'"

 

      So it gets rid of congressional responsibility. It makes the agency and the executive think that they can do everything, that they've got congressional and executive power, and that they can't be stopped by the citizens who are affected. And it makes judges lazy, so they don't do everything they have to do to determine what the law says.  So what I think you'll get is better actions by every part of our tri-part government if we get rid of Chevron.

 

Chayila Kleist:  Got it. Next question concerns Chevron and stare decisis. Does Chevron itself receive stare decisis effect? Why or why not?

 

John Vecchione:  That's a great question. I believe that Chevron does not deserve stare decisis effect. Certainly not strong stare decisis. Strong stare decisis is strongest in the statutory context. If the Supreme Court has told you what a statute means, they're very unlikely to overturn it.

 

      And the reason I really think that all these Chevron-based statutory interpretations are not going to be overturned is International Baseball, which is a case from the '20s where the Supreme Court -- Even in the '20s, with Babe Ruth running around, they determined that baseball was a local activity, and it wasn't subject to the anti-trust laws. And nobody thinks that's right.

 

      Baseball is a big business, and they're all over the place. Nobody thinks that's right. But it went back 50 years later to the Supreme Court, and Justice Stevens, who wrote Chevron, wrote this whole pan to baseball and how it's emerged under this thing. And they didn't overturn it then, and it's never been overturned. They love statutory stare decisis. This isn't that.

 

      Constitutional law. When they've made a real bad constitutional error, this Court feels that they can overturn it. And there's strong stare decisis people like Justice Kagan, and there's weaker like Justice Thomas, but they all think it has some effect. Here, this is neither a constitutional ruling, nor is it a statutory ruling. It's how the Court interprets things, how they actually go about doing the law, and that is totally in their wheelhouse.

 

      And so I think that they've changed how they look at things. Anti-trust law. Paul Clement brought up the fact that you don't have implied causes of action anymore. They've done all this stuff without even mentioning stare decisis, and I think Chevron's in that bucket.

 

Chayila Kleist:  Well, thank you. Next question comes in from a guest asking, "Why don't people who lost under Chevron in past come back to the Court if there's still harms, they're experiencing?"

 

John Vecchione:  So they lost. There was a regulation put in. It got upheld under Chevron. Why won't they -- Well, I have a number of reasons for that. First, I believe those will be stare decisis. The ruling of the Court on that regulation, whether it applies to that, whether the statute allows that is going to be a stare decisis. So there's going to be an impediment there.

 

      The other one is, look, we brought a case at Cause of Action called the Goethel case about this exact same issue in the mackerel fishery. And under the Magnuson-Stevens Act, if you don't challenge a regulation 30 days after it's promulgated, the statute of limitations ran out. The First Circuit told us the statute limitations ran out,

 

      Well, no fisherman was bothered by this law because the agencies kept delaying it. They issued it, and then they said, "Oh, it's not going to apply. It's not going to apply" until the statute of limitations was gone many, many years. So there'll be a lot of statute limitations, and there will be new regulations that'll come out, and those will then be adjudicated without Chevron. So I think that there might be a couple of cases where they try to overturn something, but I think they'll be swiftly disabused of that.

 

Chayila Kleist:  Got it. Next question: If the Court chooses to limit Chevron instead of fully overturning it, what would the limiting principle be?

 

John Vecchione:  Whoa. Let me think about that. So from the last question, General Prelogar was arguing chaos to the Court. She was saying, "It's going to be chaos." And I don't think it will be, but now you've brought into question if they don't get rid of Chevron. There was a lot of talk yesterday of Kaiser rising Chevron.

 

      In the Kaiser case kept Auer deference, which is the deference a Court owes an agency about what its own regulations mean. And Kaiser has one thing that comes to mind. Auer deference, one thing that comes to mind that Chevron doesn't have, and which sort of dovetails into Kagan and certainly Sotomayor's view, and that's this: You have to show agency expertise was involved. They exercised it and you got agency expertise.

 

      They could limit Chevron to only times when the agency has expertise. In this case, the agency has no expertise. Who pays is a congressional question. That's what they do. That's what they argue about up. You know, Dirksen used to say, "Don't tax you. Don't tax me. Tax that fella behind the tree." The fact is that's what they're arguing all the time: who pays. That's not something an agency has special knowledge of.

 

      They could do that. I think that would be not useful because then we'd be going, "Oh, is this expertise, that not expertise?" I also think that the silence issue dropped out. No one really asked about it. Both advocates said that's the question. No one no one wanted to do that.

 

      So I'm hoping against Kaiser-ization. But I think many of the things they'd have to do -- They'd have to do this line drawing. And the question of what's law and what's policy was big yesterday. It would be a return to that.

 

Chayila Kleist:  Interesting. And I think that dovetails cleanly into the next question that got posed, which is, will this affect Auer deference?

 

John Vecchione:  No. I think it's no because everybody up there really liked Kaiser. They think the Supreme Court thinks what they did in Kaiser is wonderful. I think there's been some analysis in the lower courts that it's not wonderful, but I didn't get the feel from anybody there that they thought Kaiser was anything but a brilliant move.

 

Chayila Kleist:  Okay. Continuing on in the ideas of what could come out of this case. Tim Hosel asks, "Does the fact that the Court ignored time limitations and entertained three and a half hours of argument indicate that they will overturn Chevron 6-3?" Very specific.

 

John Vecchione:  I didn't put those two things together. In other words, I thought it was going to end at 1:30, and it ended at 1:40. I think if you had a pool, Paul Clement would have won the pool. He was closer than that. So the length of the time doesn't tell me what it's going to be.

 

      And 6-3? We'd love 6-3, but what they're going to say about Chevron right now -- I do think that they're poised to get rid of the doctrine or vastly change it, but both Barrett and the Chief keep their cards extremely close to the vest, so you're not even sure they're playing poker.

 

      So I can't predict those two. I'm very sure Justice Kagan like Chevron the way it is. Justice Sotomayor likes it the way it is. Justice Gorsuch is like “Chevron, delenda est.” And then I can't tell you exactly where the rest of them exactly are. Because Alito asked a lot of questions about why we had Chevron, showing that there were benefits to it. He wasn't as hostile as Gorsuch to why Chevron was here.

 

Chayila Kleist:  I think that answer then connects to the next question we have, which is, do you have a sense of whether any of the justices' questions indicated they were testing their own initial leanings on the issue?

 

John Vecchione:  Well, Gorsuch and Kagan weren't testing their initial leanings. Okay? I don't think Sotomayor was testing her leanings. Barrett is. The Chief is. Kavanaugh is, to some extent. And I think Thomas really is itching to get rid of at least Brand X, so I don't think he wants that to be part of his judicial legacy, but his questions, too, were not like, "Let's kill Chevron." It was like, “If Chevron goes, what do we do with the other deference? Do we have to say that there's no deference even in habeas cases or whatever else?"

 

      So I do think that Barrett and even Kavanaugh and maybe -- You know who is also -- Jackson always seems to ask questions in a way where she's testing her own thoughts on it, in which she wants to sharpen it. So I think she is too. I think she likes Chevron, for the reasons of her view of popular sovereignty, but I did think she was testing those ideas.

 

Chayila Kleist:  Interesting. Okay. Next question concerns the impact of scrapping Chevron. Questioner asks, "What impact would scrapping Chevron have on pending cases like Cargill or VanDerStok, which similarly deal with agencies flip-flopping on their own longstanding traditions, but these have criminal implications?"

 

John Vecchione:  So Cargill is an NCLA case. So we're there next. I'm not counsel of record there; Rich Samp is. But I think that it has no effect on Cargill for a very interesting reason, in that the government hasn't claimed Chevron. Both of us claim that the law is clear, and the government said that they are not relying on Chevron. They haven't invoked it.

 

      Now, the circuits are slightly different in that sometimes the circuit says, "Well, if the government isn't claiming Chevron deference, we're not going to give it," but other courts say, "No, we do it all the time. It's how we're supposed to -- No matter what they do, we're going to apply it."

 

      But I think the Supreme Court would say, if neither side invoke Chevron, they're not going to invoke Chevron. I don't even think Kagan will invoke Chevron out of the blue when no one has done it. So it's not going to affect Cargill at all. That is a statutory interpretation issue right down the line. It isn't a Second Amendment issue. It is statutory interpretation just straight. It's not going to be affected by Chevron. What's the other case?

 

Chayila Kleist:  VanDerStok, which I may be pronouncing incorrectly.

 

John Vecchione:  All right. I'm forgetting what VanDerStok is about, so I can't answer that question without a quick Google. Sometimes know the cases by their facts rather than their names. VanDerStok v. Garland. Is that it? I think so.

 

Chayila Kleist:  Yes.

 

John Vecchione:  Okay. So VanDerStok v. Garland, that is an interpretation of the statute. That one may very well be affected by whether they go with Chevron or not, but even there, I think that it has -- That one has to do with what is a frame or receiver in a firearm, and that one may mainly be statutory interpretation, but if they've invoked Chevron, which I think they did in that case, it would matter.

 

Chayila Kleist:  Interesting. Well, it'll be interesting to see how those cases shake out. Next question concerns Chevron and Congress. You touched a little bit on how Chevron has impacted Congress's actions up to this point, and a questioner asks, "If Chevron is overturned, will Congress be more aggressive in using its clear language delegating authority and discretion to agencies?"

 

John Vecchione:  I agree. I agree with Paul Clement. He argued to beat the band that Chevron is causing congressional gridlock because everyone becomes a maximalist, and there's no dealmaking because they don't want to write clear laws. So I think that Congress will do two things, depending on who is running Congress, but all congresses will do the following.

 

      They will clearly say what they're going to do, what the statute is for. They'll choose their words carefully. Then the second thing that will happen is, when they do want the agency to have a lot of power, they will make a statute like the MSA is, the Magnuson-Stevens Act, if I haven't said that.

 

      Congress can write a law two ways: They could say the fish quotas are -- you can only take 50 fish a day or the agency shall have power to determine quotas. Well, that's what the Magnuson-Stevens Act says. It gives the agencies tons of power because -- I always say this in oral argument.

 

      If you've ever seen Robin Hood with Errol Flynn and Olivia de Havilland, Robin Hood doesn't get in trouble for being against the king. He shoots a deer. Everything's the king's deer. Well, in America, everything's the king's fish. It's all owned by the federal government. So if they don't want you fishing, you do not fish because it's their fish.

 

      And so they have enormous power, and the quota is written like that. They shall determine it. Why? Because Congress doesn't know how many fish could come out, and that's why we have observers counting fish and doing all that stuff. So you can give agencies what we would call enormous power, but it would be legitimate power for legitimate reasons.

 

      And I want to say one other thing that came up, and that's the idea that the law runs out. This is Kagan's idea, that the law runs out, and then we have -- But the idea that the law runs out, and then they let the -- The federal judiciary should not be saying, "Oh, the law ran out. I'll go over to the agency. Can I borrow a cup of law?" That is not how it's supposed to work, and I do think that Congress is going to fill up that cup of law with clearer statutes.

 

Chayila Kleist:  Got it. Next question concerns potential future ramifications. Are there pending or planned challenges, of which you're aware, to other significant agency actions that would be at risk if Chevron is overturned or even significantly limited, and did those come up in oral argument?

 

John Vecchione:  No. It's no and yes. I'm sure there are. They did not come up. I'm pretty sure VanDerStok sounds like one.

 

Chayila Kleist:  Got it. Follow up on the Auer comment. Someone asked, "Are you saying there's no point in anyone challenging Auer now?" A-U-E-R deference.

 

John Vecchione:  Auer deference.

 

Chayila Kleist:  Auer. Thank you.

 

John Vecchione:  You know, we don't like Auer deference here at NCLA, but Kaiser is a very recent case. It's very recent. So it's not working out below. How long it will go on, I don't know. It's probably better than it was before Kaiser, but it's still bad. They should be deciding this directly. So I'm not saying this as someone who thinks Auer is the greatest thing since sliced bread; I'm just saying that the Supreme Court doesn't seem to have any appetite. So people can challenge all they want, but I watched them yesterday, and they seemed to love Kaiser.

 

Chayila Kleist:  Got it. Someone asks about Justice Jackson's argument concerning popular --

 

John Vecchione:  I was going to say, if you want to challenge something, challenge Brand X because that got no love. Go ahead.

 

Chayila Kleist:  Fair enough. Someone asked about justice Jackson's argument concerning popular sovereignty. And there's a two-part question. First, what is the charitable view of that argument? And second, what is your response?

 

John Vecchione:  A charitable view is that major justices, certainly of the New Deal period, totally believe that. And it's not an argument without inconsiderable force in American jurisprudence. The entire New Deal, all those judges felt that the agencies are the only ones who could respond to an immediate crisis and that the president was ultimately responsible for the government.

 

      But as Roman Martinez points out, even in those days, we had far fewer agencies touching far less areas of American life. And as Gorsuch points out, the president has no idea most of this stuff is going on. The president doesn't know that there are herring fishermen being charged for at-sea monitors and that that's not in a statute.

 

      This isn't didn't even go to OIRA, which is the White House organization that takes major regulation and sees if it matches legislation. Neomi Rao used to be the head of it, and she's now on the D.C. Circuit. This didn't get any of that. Most of this stuff is done at a low level by low-level bureaucrats.

 

      I learned today—or it was pointed out to me today—that NOAA, for instance, only has one presidential appointment, and everybody else is a permanent employee. How's that one guy going to do popular -- Oh, no, the president wouldn't like that on certain issues. So I think it's a weak argument. I think that the president is over this giant, giant bureaucracy, and to assume that he is somehow better at judging what they're doing than Congress, which has a lot more -- Every two years it has to face the voter, and it can put things in statute. I think for almost every question, the idea that the presidency or the agencies are sensitive to popular will on these types of issues is fantasy.

 

Chayila Kleist:  Thank you. I know you talked a little bit earlier about the potential behind-the-scenes ramifications of overturning Chevron in the regulations that are or are not considered by agencies. There's a question that pertains to regulations that have already been passed and whether, assuming Chevron is overturned, a rollback of Chevron would require subsequent specific challenges to then specific regulations in order to apply that ruling.

 

John Vecchione:  Let me think about that for a second. So here's what I think. If there's already been a regulation and it hasn't been subject to litigation, then it will just go forward with no mention of Chevron. The Court will have said, "No Chevron, so you can't go borrow a cup of law. So you got to do the job right in your house with the ingredients you have."

 

      And so I think what's going to happen is that those regulations that have never been challenged are going to be challenged without Chevron. That may give certain people -- There are certain litigants who don't challenge things because they know what I know. And if there's ambiguity and step two gets to the agency, they win. So a lot of people don't bring those cases.

 

      There might be more cases brought that that might not have been brought, maybe, but I think that longstanding regulations are unlikely -- They've already been challenged, and as I said, I don't think we're going back on any of those.

 

Chayila Kleist:  Okay. And you touched on this, again, a little bit earlier. Why take both cases? What does that mean for the potential outcomes? Why would you hear two?

 

John Vecchione:  So the reason was -- I was joking at the beginning. I hope you all recognize the fact that they took the second case. They took the Relentless case. We filed in the First Circuit, and Cause of Action filed in D.C. And maybe there was going to be a circuit split. There was not a circuit split.

 

      But because Justice Jackson had to recuse herself, because if any of them -- This happens all the time. If any of them sat on a case below at any stage before it gets to the Supreme Court, the idea is that they have to drop out because -- I don't know if they've been influenced by the briefs below. I've never fully understood why they do it, but I know that they do, even when she didn't take any part in the ruling. I understand when you've taken part in a ruling. She had nothing to do with it.

 

      But they want to have all nine. It's a courtesy that all the justices grant -- Chevron had six justices. Three were out, and it's ruled all this time. Three were not on that case. They would like not to have six or eight. Nine is a good number, and they want to stick with it. And so that's why they took the Relentless case.

 

      And I think that for the ruling, we have argued very strongly that they should address the constitutional question. They seemed loathe to do so. They both asked about constitutional avoidance. We at NCLA don't like constitutional avoidance. We think that it's part of not doing their job, but they are very enamored of it.

 

      And so are they going to do this by the APA? Because the APA is pretty clear. The judges are supposed to judge. And so are they going to just say, "Hey, look, we didn't" -- That's another stare decisis argument, why it's not stare decisis. Chevron never mentioned the APA. Because I think the Clean Air Act isn't -- That's not how they work under the APA.

 

      But the fact is that the facts of this case -- We've asked them to overturn the final rule to say what the MSA says. They also asked about that issue. So we think we have enough facts in the briefs—and it's certainly in here—about what happened to the fishermen, but they have enough to strike the final rule and say what the MSA means, and they should do it because all the lower courts -- Have some pity on the poor appellate and district court judges.

 

      You've just struck down Chevron. Well, now show us how we're supposed to do the analysis. If we've all decided, except for that one district judge in D.C., that the law ran out, show us what we do when the law ran out because everyone says that's what happened here. So they should say, "Well, the law really didn't run out. Here's how we do it. This is what it says."

 

Chayila Kleist:  Okay. Continuing on the thought of ramifications for courts beyond the Supreme Court, state courts—and this is a question from our audience—have traditionally adopted Chevron for themselves too. Assuming SCOTUS overturns at Chevron or severely limits it, what would be your prediction as to how state governments and state courts respond?

 

John Vecchione:  That's a great question because this came up at the argument as well. And we have here at NCLA Dan Keller that used to be one of those judges out in Wisconsin, and he was part of the majority that struck down their version of Chevron deference in the States. And there was a brief by a bunch of state judges saying, "Look, but Chevron has gone away, either because the legislature said don't do that. Do what the APA tells you to do, which is judge. Or the courts have found, for the reasons I've argued here today, that Chevron in the states are no good.

 

      So I think General Prelogar said about half the states have some kind of Chevron deference, and I don't disagree with that. Half of them, though, don't, and they regulate that, including California. And there's never been any hint that California has failed to regulate something.

 

      So I think that that the states may take a hint from the federal government view and the Supreme Court view, but they've been on their own doing what they think they should do already because, in the last ten years, I think something like six or eight states have gotten rid of their local Chevron with no -- Any of you follow the news? Have you seen any, "Oh, these states got rid of Chevron and it was all terrible"? You haven't seen that.

 

      That's why I was a little amused about General Prelogar's chaos argument every time she got up there, looking directly at Barrett. "Chaos." I think that it's not going to come to fruition, and I think the states have been getting rid of Chevron with no problem. And I think, if the federal government gets rid of Chevron, maybe it'll get rid of it more at the state level, but I don't think there's a one-to-one connection between the two.

 

Chayila Kleist:  Got it. We've had a couple of questions on this, so I'll try to combine them in the best way possible. They're addressing the idea of expertise in the agencies. Assuming for a second that Chevron stands in a limited form or in more wholesale form, what would be the ramifications of today's oral argument on addressing agencies as expert moving forward?

 

John Vecchione:  Yeah, I'm looking at the two questions. One is do they really have expertise? And another one is deference came out of very pro-New Deal courts, and are the assumptions under it correct? And what I always say about -- And I do like the question about -- because I've always had this question.

 

      Justice Kagan, she's sharp as a tack. She said something yesterday that I thought was -- She said, "Well, if the HHS says this is a drug instead of a supplement, who are we to argue?" Well, HHS doesn't say that; FDA does that and FTC does it, and they're split. There's so many agencies with control over so much stuff, who really has the expertise, I think, is the question.

 

      And that's a good question, but the way I have put this in the courts below and argued is that there is expertise sometimes. Look, Nuclear Regulatory Commission. The federal government invented nuclear power. It invented the whole thing. It created the entire industry. It started with the Manhattan -- You go see Oppenheimer, you know. So what happens is that they did everything. It's a very dangerous technology. That is like a regulatory agency that deals with nukes.

 

      Whether you have Chevron or don't have Chevron, there is no district court judge -- most of whom have some liberal arts degree in history or economics or something like this. When the regulatory commission tells them, "Hey, the human body shouldn't take more than five roentgens a year or whatever," whether they say they have deference or not, they're not going to go, "Let's blast away."

 

      So I think that there are agencies that are just -- when they say something and put evidence in, just like any other litigant who has a convincing argument, they're going to win. On other things, though, we've seen with Auer, one of the problems with it is they're always claiming they have expertise in something that they don't know anything about is the argument, I think that's being made here. And sometimes that's true, but sometimes it's not because, here, all my fishermen will tell you that, the agencies, their collection of fish data and stuff is very useful. They do know how many fish are in the sea.

 

Chayila Kleist:  Fair enough. Question on the potential outcomes. You said probably Chevron will be overturned, although we're not quite sure what the makeup of that split will be, but I'd be interested to know what your read is on what points will be the key points on which it hangs and where there'll be points of difference between the justices.

 

John Vecchione:  So that's too much predicting for me. I'm not going to be able to actually say what's going to happen, but I'll tell you what happened and what I think can happen. Gorsuch has a strong get rid of Chevron. Just go what they call Skidmore deference, which, actually, Gorsuch didn't like the word deference with Skidmore. When we were in law school, that's what they called it, but it's really Skidmore respect or Skidmore approach something like that. Don't use Skidmore deference when you're in front of Supreme Court because it would cause a big fight.

 

      So Kavanaugh said, "No. No, it's not deference." Gorsuch says, "Oh, okay. If it's not deference, I'm okay." So Gorsuch really doesn't like it. Then you have the Chief and Barrett. Nobody knows what they think, although in Kaiser, the Chief did say that this is wholly different from Chevron. Don't use this for Chevron.

 

      So, if I had to guess, Gorsuch isn't right in this opinion because the Chief is going to -- He's somewhat concerned. I think if they get rid of Chevron, it may be the Chief who writes it, and you'll have a 6-3. And he'll write it in such a way that that addresses the whole Prelogar chaos issue. That's my guess. You can watch this video, and you can come back and send me an email that I was wrong when June comes out.

 

Chayila Kleist:  It'll be interesting to see how it does check out. Our next audience question loops a little bit back to the accountability question. Since judges are often appointed to lifetime positions—and this is the audience question—how would moving these decisions from the executive to the judicial be more responsive to public will?

 

John Vecchione:  I'll answer you, Justice Kagan. It will be more responsive to public will because the policies are supposed to be made by Congress. They're then supposed to be carried out by the executive, not created by the executive. So Congress, as I explained before, would have to do its job. And when law runs out, the power of the government to coerce the individual would run out. That's the Paul Clement argument, which I agree with wholeheartedly.

 

      So how you'd see it responsive is that Congress would be -- The policymaking part of our government would have to make policy again and would be encouraged to do so. And every theory of American government is Congress is the most responsive to public power, and then next, the president, and least, the judges.

 

      But there's an underlying thought to this question which I disagree with. I don't think law is the same as policy. The Supreme Court, for 25 years, has been trying to get out of the policy business and just say what the law is through textualism and originalism. And the reason they're doing that is to get away from, well, what was the meaning? What were they trying to do? Then to make up a better law than Congress wrote.

 

      That's not the job anymore. The job is to say what the law is. And sometimes it's hard. Sometimes it's difficult, but they shouldn't be in the policy business. And I think, when you get rid of Chevron, policy goes back to Congress, where it's put by the Constitution. It's not me putting it there; it's put there by the Constitution, and Chevron takes it away. So I think that's how you have more popular sovereignty in government.

 

Chayila Kleist:  Okay. Continuing on with the hypothetical, if Chevron is overturned, and regulators continue to regulate, but Congress doesn't step in, what happens?

 

John Vecchione:  That's a good question because here's what happens. You're left with the law. You know, one of the things presidents have been doing, at least since maybe, maybe the second Bush, but certainly by Obama's time, and we saw in the Trump administration -- This regulation came out of the Trump administration.

 

      I think that you'd be stuck with the law. Whatever the law allowed the agencies to do, that's what they're allowed to do. And if they're not allowed to do something that people want, well, they can change their legislators. That's what happens. Some things that you want may not be done, but they might not be done if you got the wrong administration in or the agencies didn't want to do anything.

 

      So I think, if that happens, it's question of how long it can continue. Because I don't think it's going to clog the courts. The courts are going to be very clear about what the law is. And then the question becomes what do you do if -- Let's say it was absolutely vital to the national security of the United States that fishermen paid for observers, and if they didn't pay for observers, a horrible catastrophe would occur, and it's not in the law? Well, you go to Congress. Congress has to push it through. That's what happens.

 

Chayila Kleist:  Got it. We're approaching the top of the hour, but we'll try to get at least one more question in. What would be the implications for agency capture if Chevron has overturned? And do you agree with Justice Gorsuch's suggestion that weaker deference impedes capture?

 

John Vecchione:  No, and I don't think that's what Gorsuch was saying. So no. And I was a government major, so I'm like the judge with the nuclear power thing. I don't know anything about it. But agency capture happens when the regulated parties are so powerful that they take over the regulator. And this is kind of Eisenhower military industrial complex that they're going back and forth, that sort of thing.

 

      I don't think it changes agency capture and the trends towards it at all. What it does is it no longer makes these weak parties who are never going to capture the agency subject to rules that Congress didn't write that the agency did, not taking into account the needs of the weak and the people who maybe only face this agency once in their lifetime. And when they face it, they face it with no chance of saying what the law is or influencing anyone on that law.

 

      So I don't think that's what he was implying. If he was, I do disagree with it. Agency capture is going to be agency capture. It's just the negative effects of it on the people who are never going to capture an agency will be lessened.

 

Chayila Kleist:  Well, as we've hit the top of the hour, we'll wrap it there. I know there's more questions. We could probably go on for another hour discussing this, but we'll wrap it there.

 

John Vecchione:  Four hours in the Supreme Court, so yeah.

 

Chayila Kleist:  Yes, there's plenty to cover. Mr. Vecchione, thank you so much for taking the time out of your afternoon to join us. We really appreciate it. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. That's a new email if you've been listening to these for a bit. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.

 

[Music]