Chevron Under Review: Courthouse Steps Preview: Loper Bright & Relentless

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Chayila Kleist:  Hello and welcome to this FedSoc Forum webinar call. Today, January 10, 2024, we’re delighted to host a Courthouse Steps Preview webinar on two cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, two cases that concern the Chevron doctrine that are set to be heard by the Supreme Court next week. My name’s 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 experts on today’s program as The Federalist Society takes no position on particular legal or public policy issues.

 

In the interest of time, we’ll keep the introductions of all our esteemed guests today brief, but if you’d like to know more, you can access their impressive full bios at fedsoc.org. I’ll go ahead and introduce our moderator, and then I’ll leave it to him to introduce the rest of our panel. Today, we are fortunate to have with us the Honorable Stephen Alexander Vaden, who serves as a judge of the United States Court of International Trade where he regularly deals with issues of administrative law and regulation as part of the court’s heavily administrative docket. Before joining the court, Judge Vaden served as general counsel at the United States Department of Agriculture where he served for nearly four years, and Judge Vaden also spent time working in the private sector for two law firms, Jones Day and Patton Boggs. In both, he served as an appellate litigator and was part of the firm’s political law practices.

 

And I’ll leave it there. As a last note, throughout the panel if you’ve got questions, please submit them via the question-and-answer feature that’s found at the bottom of your Zoom screens so they will be accessible when we get to that portion of today’s webinar. With that, thank you all for joining us today. Judge Vaden, the floor is yours.

 

Hon. Stephen Alexander Vaden:  Thank you so much, Chayila, for that kind introduction and thank you everyone for joining us this afternoon if you’re on the East Coast, morning everywhere else, as we discuss Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce (sic), two cases that are a challenge to the National Marine Fishery Service regulation requiring Atlantic fishermen to pay for monitors on their vessels. Those monitors help to ensure that the catch limits set by the Department of Commerce, of which the National Marine Fishery Service is a part, are respected.

 

Those monitors aren’t cheap. According to the opinions in this case, they run somewhere around $700 a day and that they can cut the gross revenue of the fishermen who are required to host them and by regulation pay for them by up to 20 percent. No statutory provision in the law expressly authorizes the Commerce Department to pass along the costs of maintaining the monitors to the fishermen. Nonetheless, the regulation doing so was upheld by both the D.C. and First Circuits, and only one of the six judges on the two panels that considered it, Judge Walker of the D.C. Circuit, dissented.

 

Both courts upheld it under Chevron, the famous case that has governed administrative law since its issuing in 1984. They did it under Chevron’s Step 2, which provides where there is ambiguity under a statute an agency’s interpretation of that statute by regulation will be upheld if it is reasonable. The Supreme Court granted review in both these cases to consider whether Chevron should be overruled or otherwise limited. And this comes after several terms ago the Supreme Court in the case of Kisor v. Wilkie at the urging of then Solicitor General Noel Francisco flinched and upheld, though somewhat cabined, a related form of deference, Auer deference, which governs courts’ deference to agency interpretations of their own regulations.

 

The question for our three wonderful panelists today is will the Supreme Court flinch again when it comes to Chevron, or will they follow through with it and end the doctrine? Here to discuss that today are, first, Professor Philip A. Hamburger, who is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and is also well-known to our Federalist Society audiences as a founder and CEO of the New Civil Liberties Alliance. The New Civil Liberties Alliance filed an amicus brief before the Supreme Court in these cases. Professor Hamburger is a prolific author on administrative laws and the hazard of the administrative state, and he wanted me to tell you all he did not clerk for any judge.

 

Coming up next will be Professor Kristin Hickman. Professor Hickman is the distinguished McKnight University Professor as well as the Harlan Albert Rogers Professor in Law at the University of Minnesota Law School. She clerked for Judge Sentelle on the D.C. Circuit, and like me, Professor Hickman is a member of The Federalist Society’s Administrative Law and Regulation Practice Group.

 

Last but never least is Professor John Duffy, who serves as the Samuel H. McCoy II Professor of Law at the University of Virginia Law School. Professor Duffy clerked for former Supreme Clerk justice Antonin Scalia, and of course those who know administrative law well know Scalia’s journey with Chevron from its beginning to having doubts about it at the end of his tenure on the Court has largely led us to where we are today with these two cases. Please think up good questions and put them in the question-and-answer session. We’ll save time for them. And with no further ado, I turn it over to Professor Hamburger.

 

Prof. Philip Hamburger:  Thank you so much. It’s a great pleasure to be here with everyone, not least my distinguished colleagues on the panel and you, judge. Well, I must begin by saying I have no idea what the Supreme Court will do. I never make such guesses, but I do know what they should do, which is simply to get rid of Chevron. It’s an embarrassment. They should have done with it.

 

The conventional analysis of Chevron is that it’s a separation of powers argument. I’ve stopped trying to count articles. There must be about 1,000 articles just in the Harvard Law Review on the separation of powers problems with Chevron, and to say they’re tedious is obvious enough. But there’s another point of view, and I think it’s important to see it from another point of view which is to ask not what is the relationship between the different branches of government, interesting as that is when handled beautifully, for example, by my colleagues here, but rather what happens in court. What happens afterwards when the judge has to resolve a case? And then Chevron appears, how shall I put it, fishy. I think that’s the right word in our circumstances.

 

And in this context, I should say the Relentless case is actually one of our cases. That’s one of NCLA’s cases. But I held my position on this before we acquired the clients, so I don’t think I’m conflicted in any way.

 

So my thesis can be summed up with two words, Chevron bias, which is the name of an article I published some while ago on the subject. Chevron deference violates two constitutional provisions. It violates Article III’s grant of judicial power to courts staffed by judges, and it violates the Fifth Amendment’s due process of law. So let’s look at these two violations in a little more detail.

 

First, let’s look at Article III. The judges have a duty or office. They have an office of judging, and that’s an office of independent judgment. Each judge must personally exercise his or her own judgment without deference to anybody, without deference to a clerk, without deference to anyone in or out of government, not The New York Times, not an agency, not the Executive, not Congress. Judicial power in Article III comes with this duty of independent judgment. James Iredell in 1786, for example, spoke of the duty of the power, in other words the duty that comes with that grant of power. And that duty is implicit in the very notion of a judge.

 

I wrote about an 800-page book on this. I won’t bore you with the details. I’m told it’s the most boring thing I ever wrote, and that may be true. But it doesn’t mean that it’s untrue -- that the thesis is true, that judges have a duty to be entirely independent. They’re not independent simply in the sense that they have the outward bulwarks of independence that come with protection of a salary and tenure. They’re meant to have an independent mind, to pursue their intellect unaffected by somebody else’s will or their own will and passions.

 

That’s the ideal of a judge. And the duty to follow that independent judgment is discussed by the Founders. Nathaniel Gorham in the Convention says the judges ought to carry into the exposition of law no prepossession with regard to them -- in other words, no commitment to one of the parties. And Hamilton said the interpretation of the laws is the proper and peculiar province of the courts.

 

But we know all of this, and the question is how does it apply here. And it’s obvious enough. Judges cannot come in with their own biases, personal biases, in favor of a party, and they cannot come in with an institutional bias, let alone one dictated by a higher court, in favor of one party, indeed the most powerful party, because then they’re not exercising independent judgment. And that’s an Article III violation.

 

Now, more concretely let’s talk about the second violation, the Fifth Amendment due process violation. And here it really hits home. Judges cannot either just once or systematically favor one party over another. And so we have to ask what happens when the government is a party? And there under Chevron the judges are required to favor one party over another, the most powerful party.

 

This is institutional bias; it’s not personal. But it’s imposed upon the lower court judges by the Supreme Court. And that is scandalous. It’s absolutely scandalous. It’s systematic favoring of the most powerful party.

 

Now, I’m not going to belabor this. I just want to turn to one third argument, amongst many, that could be made, and then I’ll stop speaking. The third argument is that Chevron is destabilizing, profoundly destabilizing. Presidential elections, as we all know, are increasingly akin to warfare. It’s ugly, and none of us, I think, like it. There are many reasons for this, for example, relating to ideology and so forth, but it’s also structurally inevitable. And the Supreme Court has contributed to that.

 

Why is it structurally inevitable? Because over the past century the Supreme Court has done two things that don’t sit well together. First, it’s expanded federal legislative power until it’s almost a general legislative power. Second, it has funneled that legislative power through administrative agencies. In other words, the legislation is not made so much by Congress but by administrators who are roughly if not under the control of the president at least somewhat responsive to or more fearful of him.

 

That combination of expanded legislative power and funneling it through not the Legislature but through persons under, more or less, the president makes vast regulatory power turn on presidential elections. People care too much about presidential elections but with good reason because that vast legislative power is funneled through agencies subject more or less to the president. So it is profoundly destabilizing. It’s destabilizing for regulation which flips back and forth because of this with its change of party in presidency. But it’s also destabilizing for the nation because presidential elections become existential conflicts.

 

So if the Supreme Court is to expand federal legislative power, it must be careful -- the breadth of lawmaking power -- it must be careful about unnecessarily placing that legislative power in administrative agencies, especially when Congress does not really authorize that location of legislative power in agencies. And that’s Chevron. The case expands the agencies’ abilities to legislate without real congressional authorization, and it thereby increases the risk of conflict over presidential elections.

 

So those are three arguments: the first two based on the Constitution, Article III, and above all the due process of law and then finally I think a very powerful, practical concern about the dangers of Chevron. And with that, I’ll stop. Thank you so much.

 

Hon. Stephen Alexander Vaden:  Professor Hickman?

 

Prof. Kristin Hickman:  Sure. Thanks so much and I want to thank The Federalist Society for inviting me to participate today. Let me start off by saying That I just disagree with Phil about Chevron’s constitutionality, and I’m going to preemptively, I think, disagree with John that Chevron deference is necessarily in tension with Section 706 of the Administrative Procedure Act, which he’s written about in some of his work.

 

I don’t have time in my ten minutes to lay out a full rebuttal of both, so let me just point to some of my articles addressing those topics, particularly “Narrowing Chevron’s Domain” with Aaron Neilson and “Categorizing Chevron” with David Hahn, and “Chevron’s Inevitability” with Nick Bednar, as well as Section 3 of the Administrative Law Treatise co-authored with Dick Pierce. Instead, in these ten minutes I want to make two separate observations in anticipation of the upcoming oral argument in Loper Bright and Relentless.

 

So first, to a great extent how you think about Chevron depends upon which version of Chevron you’re reacting to. At one extreme, a reviewing court would decide that the meaning of a statute is ambiguous if the specific statutory provision that is at the heart of the issue does not expressly resolve the interpretive question and then thus the agency must win unless its interpretation is patently absurd, which most agency interpretations aren’t at the end of the day. And if I thought that was really what courts were doing when they decided Chevron cases, then I would probably have a problem with that version of Chevron too.

 

And I will acknowledge that there have been some occasions, I think particularly in the 1990s and perhaps on occasion since then but particularly back then, when one court or another has seemingly applied Chevron in this way. Whether that was entirely a consequence of courts just abdicating their judicial role altogether or whether it was a consequence of them just not articulating everything that they thought about in crafting their judicial opinion, that I can’t say. But regardless, I don’t think that’s most cases, at least not in the last 20 plus years since the Supreme Court’s decisions in cases like United States v. Mead Corporation and Brown and Williamson Tobacco v. FDA suggested that maybe some agency interpretations of statutes ought not to be eligible for Chevron deference or judicial deference at all perhaps.

 

So let me outline a different view of Chevron that I think is closer to what most courts are doing with the doctrine, although their opinions, again, may not fully explicate all of their thinking in every case. So first, because of cases like Mead, Chevron doesn’t apply to all agency actions that interpret statutory requirements. My own view, laid out in my academic work, is that Chevron should only apply to notice and comment rulemaking or formal rulemaking on those rare occasions when it occurs and even then, only when agencies possess congressionally delegated authority to impose penalties on regulated parties or to deny certain benefits to otherwise eligible claimants based solely on the application of those regulations.

 

But second, when applying Chevron Step 1, assuming you get past that Step 0 question -- in applying Chevron Step 1, Chevron’s footnote nine requires courts to employ traditional tools of statutory construction in an effort to discern statutory meaning before declaring a statute ambiguous. We’ve seen the Supreme Court doing a lot of that in recent years. But at some point, you do run out of traditional tools to apply, and you still may not have a clear answer about how a statute ought to work given a particular set of facts and circumstances.

 

I’m a tax lawyer by training, and I think anyone who has ever worked with a complicated statutory scheme like the Internal Revenue Code understands that sometimes when you get deep down into the weeds and technicalities of day-to-day application of a statute you have questions that traditional tools really just can’t answer. Now, a purposivist might say no worries, courts can just resolve statutory meaning based on their own sense of what would best accomplish congressional purposes, even if the text of the statute can’t quite be squared with that result. But I am no purposivist.

 

Instead, I just forthrightly acknowledge that the task of executing the law itself entails a certain amount of policymaking judgment and agencies, rather than courts, are in the better position of resolving those particular gaps in the details of statutory meaning. The point is that you don’t get to ambiguity in Chevron Step 2 very easily under this version of Chevron, and when you get there, as the courts have often applied Chevron Step 2, it’s often not enough that the agency just comes up with an interpretation that isn’t patently absurd on its face but in incorporating some of the ideas of State Farm and like cases regarding the arbitrary and capricious standard of the Administrative Procedure Act, the courts have said the agencies need to offer some explanation of why they think facially plausible interpretation A is better than facially plausible interpretation B.

 

When you put all of that together, it leaves courts with several off ramps and an awful lot of room for independent judgment before they ever get to the point of deferring to an agency’s interpretation of a statute. A shorthand way of thinking about this is I see Chevron as a standard of review rather than as a hard and fast rule of decision. And if this is the version of Chevron that you’re contemplating, then it’s a lot easier to see how it's both constitutional and consistent with the terms of the APA. And I think my version of Chevron is a lot closer to how judges are really deciding Chevron cases.

 

But the second point I want to make just briefly in the very limited time I have left, I want to comment on what I think the Supreme Court is likely to do in Loper Bright and Relentless and what people should listen for as we approach oral argument. A lot of the briefing in the case has focused on whether and why the Supreme Court ought to overturn Chevron. I genuinely do not believe the Court has five votes to overturn Chevron. Certainly Justices Gorsuch and Thomas have been quite clear in calling upon their colleagues to do just that, but I took note particularly of Justice Gorsuch’s dissent last term from the denial of certiorari in Buffington v. McDonough.

 

And in that dissent, his rhetoric about Chevron shifted just a little bit, and he started talking about courts not overreading Chevron or not giving Chevron a broad reconstruction or not applying a maximalist reading of Chevron. I will note that overturning Chevron is not the only option offered by the question presented in Loper Bright and Relentless. The question presented goes on to ask whether the Court should clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

 

When you put those two points together, along with other trends in the Court’s jurisprudence like Kisor v. Wilkie which Judge Vaden mentioned, whether in the form of another Step 0 framing or more likely some fuzzy discussion by Chief Justice Roberts about not all statutory silences are ambiguities being of the type to trigger Chevron deference, I anticipate what we’re going to get is an opinion curtailing Chevron’s scope in one way or another, rather than overturning it outright. And with that, I’ll turn it over to John.

 

Prof. John Duffy:  Thank you very much, Kristin. Well, my position is that the Chevron framework—and I’ll call it the Chevron framework for reasons that will become apparent— should be tossed out entirely and that the focus of the courts should not be on deference—that should be scraped entirely for a variety of reasons, including perhaps for some of the reasons that Professor Hamburger mentioned—but that instead we should focus on delegation, which I think is constitutional even if you have a fairly restrained vision of how much power agencies can be delegated by Congress. First, I want to talk about Chevron itself as a case because the Court is being asked to overrule Chevron, and I think we should actually go back to the original sources and relook at that case carefully, which I think a lot of people don’t do.

 

Number one -- and here are four flaws in Chevron. Number one, no one cited Section 706, the first sentence of Section 706, which says that courts should decide all relevant questions of law. Every single court that looked at this after the enactment of the APA said this meant de novo review. This is not a hard question. Now, the Court can be forgiven for this a little bit because no party cited Section 706, but that is a good reason to not give Chevron a lot of stare decisis way. The Supreme Court’s decisions about stare decisis say that issues that merely lurk in the record that were not briefed by the parties do not get stare decisis in fact, so I think that’s a good reason to rethink Chevron.

 

Second, the Supreme Court launched an implicit delegation theory in Chevron, which is absolutely terrible and unnecessary. The Solicitor General’s brief cited, quoted in full in the very first pages of the argument section the explicit delegation that the EPA had -- the rulemaking power that the EPA had to fill in statutory ambiguities. That’s important, not some theory of implicit delegation. Third, the Court talked about expertise and political accountability, which are absolutely terrible proxies for figuring out whether an agency has delegated powers.

 

There are reasons Congress may want to give an agency some delegated power, but they’re not good proxies. For example, the area that I also write in, an administrative agency called the Patent and Trademark agency is very expert. It’s expert both in law and in science, and it’s part of the political branches. It’s explicitly in the Department of Commerce, yet it has never gotten Chevron deference because it doesn’t have a rulemaking power. So lots of expertise, lots of political accountability. It just simply doesn’t have the requisite delegation of power.

 

And fourth, I think that people mistake the agencies’ interpretation in Chevron. In Chevron, the agency did not adopt as an interpretation of stationary source a plantwide definition. Instead, the agency—and I’ll read it to you—said, look, there is no explicit answer as to what this phrase means, and therefore the best reading of this statute, including the rulemaking power, is that the agency gets to fill in this definition which a judgment as how best to carry out the act. I think that is an interpretation of this statute. I think it’s the correct interpretation, and then the agency should fill it in using its rulemaking power. And there are some other administrative points that you could make. For example, Chevron doesn’t even apply to interpretive rules anymore, so I think that that’s useful to remember.

 

Now, here’s what I think a rigorous statutorily based system that’s similar to Chevron but different -- and I think the maddening thing is it’s similar. And that’s an argument in favor of getting rid of the Chevron doctrine because the similarity between a de novo statutory approach in Chevron is -- they’re so close to each other that they just create confusion. The first step, or Step 0, in the new framework should be did the agency have delegated powers, or what is the delegation to the agency?

 

This is very similar to the Mead question, which is an important, tremendously important change in the Chevron doctrine. But it’s important to realize it’s not an on/off switch. Some agencies have what I call super rulemaking powers, like the FCC and the IRS or even to the Executive Branch that was involved in Mead the power to overwrite clear provisions of law. They have very broad delegations of power. Those don’t necessarily track political expertise and political accountability, but sometimes the agency gets this huge delegation of power. Sometimes they get a rulemaking power, and sometimes they get less power, like the Patent and Trademark Office, and I think this agency, the Department of Commerce in this fishery statute, too.

 

So first focus on the amount of delegated power. And second step or Step 1 would be did the agency stay within that delegation. No mention of deference. Get rid of the word “deference.” Replace it with “delegation.”

 

And here I think the good building block is what Chief Justice Roberts said in the City of Arlington case -- it was a dissent in that case, but the opinion was by people who no longer believe in Chevron. It included Scalia, and Thomas joined the majority opinion. And Scalia as was previously mentioned probably was turning against Chevron, and we know Justice Thomas did. But he said courts are respecting the Section 706 requirements of essentially de novo review by permitting agencies to fill in statutory ambiguities if Congress delegated to the agency that authority. That, I think, is the correct second step or Step 1.

 

And the final step, which again is similar to Chevron but there’s been massive confusion in the Supreme Court and the lower courts, is then whether the agency reached a reasonable result with reasoned decision making. That is Section 706 (2)(a) of the arbitrary and capricious test. There’s been massive confusion in the lower courts and even at the Supreme Court as whether Chevron Step 2 is or isn’t or similar to the arbitrary and capricious test. This just wipes away all that confusion and says use the arbitrary and capricious test.

 

So my key thesis is the Court should focus on delegation and the amount of delegated power, and there’s no better case than this case or this set of cases, the Relentless and Loper Bright cases, to show that. All of the parties have missed the extraordinarily narrow delegation that the Department of Commerce has in this statute. And I’ll cite this statute to you, and by the way, I’ll put in the comments a paper that reviews all this with all the cites, everything you could possibly want, that’s coming out in a George Mason Symposium. But it’s already on SSRN.

 

So the statute is 16 U.S.C. 1851(b). It is the first section in this fishery statute, the very first section. Section (a) of that provision says here are the principles that Congress wants to be used in setting these fishery limits. And then section (b) of the original statute gave the power to the secretary just to write guidelines.

 

Now, anybody who’s steeped in administrative law knows that guidelines does not mean rules, does not mean notice and comment rules. It’s a much more constrained power. But Congress actually didn’t want to leave even that to doubt. In 1983, years after the enactment of this fishery statute, Congress went back in and added a parenthetical right after the word “guidelines” and said that the secretary does not have in writing these guidelines the power to speak with the force and effect of law. That’s a rough paraphrase of it, but it they actually use language that says the agency doesn’t have the power. The secretary doesn’t have that power.

 

In this kind of statute if you actually investigated the amount of delegation to the relevant agency, you would come away with an answer that is this is a very narrow delegation of power, much closer to the delegation involved in Mead or the delegation of power to, let’s say, the Patent and Trademark Office or to the EEOC, another agency that at least originally didn’t have very much power. That is a crucial factor in this case, and I think it is a really telling and not positive thing about the approach of the lower courts to Chevron. And this is in somewhat response to Professor Hickman that nobody talks about the extraordinarily restrained power that the Congress gave this agency and the restraints that the agency gave -- the restraints on this agency.

 

So that I think should be the focus. What I think the Court should do—and I think it might actually do this—is it should have an opinion by, I think, Chief Justice Roberts is especially well-positioned to write this opinion -- that shifts the focus entirely from deference towards delegation. Half that job was already done in United States v. Mead. And I think that Roberts quote from his dissent in City of Arlington is just about perfect to say that the Court has to focus on Section 706, do a de novo interpretation, but respect the delegations that Congress gave an agency.

 

And by the way, if you use that framework and find out that Chevron is rightly decided, in other words the agency’s rule should not have been overturned in that case, which means the person who signed that rule of course is Anne Gorsuch who is well known to people as the mother of Justice Gorsuch -- Anne Gorsuch did everything right. Even her interpretation of the statute is better than the Supreme Court’s. So I think the agency should’ve been upheld. The reasoning of Chevron is a disaster on multiple grounds. It doesn’t have to be overruled. The framework just has to be gotten rid of because the case was actually rightly decided. That’s all. Thank you very much.

 

Hon. Stephen Alexander Vaden:  Well, thank you to all three of our panelists. That was definitely a lot of information. I want to encourage in some of the time that we have for you all to interact with one another. Professor Hickman, I want to start out with an observation that you made. You took the issue head on and said that you did not think that the Supreme Court would end up invalidating Chevron, that you think that perhaps what it did in Kisor v. Wilkie is a model for what it will do here.

 

I wanted to ask all three panelists, obviously including Professor Hickman, Judge Walker in his dissent in the Loper Bright case before the D.C. Circuit identified some pretty fundamental precepts of constitutional law and just normal governing principles that he felt the majority ignored: first, that it is not the case that if there is a law that does not say that an agency can do something an agency can do it. It is instead there has to be a law expressly allowing an agency to take an action before it can take an action because after all cabinet departments are not created in the Constitution. They are creatures of statute, and the power must flow from Congress. And number two, while it seemed to bother both the D.C. Circuit and the First Circuit that without appropriate congressional appropriations the Department of Commerce might not be able to fully fund this monitoring program to enforce its guidelines or regulations under the National Marine Fishery Service program at issue, that is the normal way that it works throughout the entire federal government.

 

The key power of Congress, like the key power of the British Parliament, is the power of the purse. And Congress all the time decides to authorize programs and then not fully fund them for one reason or another. It’s one way to maintain control. And if agencies can effectively put a tax on the people whom they regulate and get around the congressional appropriations power, that perhaps is an even larger diminution of Congress’ power than perhaps some people might think happened with creating administrative agencies and delegating to them in the first place.

 

So I wanted to ask our panelists given what Judge Walker sees as the extreme departure from normal principles of constitutional government, are we more likely to see a ruling that focuses in on tempering the extremities of these two decisions as opposed to zeroing in on the Chevron question when the Chevron questions may be dodge-able because of what Judge Walker identified?

 

Prof. Kristin Hickman:  Well, so I would say this. It is not uncommon in Chevron jurisprudence for the Supreme Court to take up certiorari in a case that seems to present a wonderful opportunity for it to say something really helpful about the doctrine and then to dodge that question by, for example, deciding that the meaning of the statute is clear and that it doesn’t need to get into all of these messy deference questions. So there’s certainly precedent for it to do something like that.

 

With respect to Judge Walker’s opinion with respect to silence, when you talk about statutory silence, there’s a really great article by Jonathan Adler and Nathan Sales talking about silence in statutory interpretation and Chevron jurisprudence. It’s absolutely correct that just because a statute doesn’t speak to something doesn’t mean automatically that the agency has the authority to actually resolve that question. This is where I think John’s right, that we ought to be thinking in terms of what kind of delegation does the agency actually have here. And the mere fact that the statute doesn’t say anything about charging regulated parties for government inspectors doesn’t mean that the Department of Commerce has the authority to impose it. So I think there are lots of different ways the Court could resolve the question, even though they’ve teed it up as being about overturning Chevron or shaping the doctrine.

 

Prof. John Duffy:  I’ll say that I think that -- originally, I thought the question in this case was a little hard before I read the statute very carefully and found just how narrow the delegation of the power is. But I’d like to contrast this case with let’s say a hypothetical agency that had power to regulate passenger cruise ships, and let’s say they said, well, you know, if you’ve got a swimming pool on your passenger cruise ship, you have to have a lifeguard available at all time. And let’s say there’s a delegation of authority for that agency to come up with reasonable safety standards for cruise ships.

 

And let’s say somebody challenges that rule and said well, we shouldn’t have to pay the lifeguard. The government should have to pay the lifeguard. I would think that would be pretty easy to decide that, well, no, when you have lifeguards at your local pool, at your health club, at other places, it’s always the norm that the party who is the operator of that business actually pays the lifeguard.

 

This is a little different for two reasons. One, as I’ve already said, the delegation to this agency is extraordinarily narrow, and two, then those other -- and I think that’s the first step. I think you have to first sort of focus on what the power of this agency is. I think that is fundamental to administrative law. Administrative law is all about delegation because agencies are creatures of Congress, something that was just mentioned. They only have delegated powers. I think they first have to decide what that is.

 

And then second, there’s all these clues that when Congress thought about these basically what they are is really cops -- they’re sort of people who are trying to make sure that people abide by the catch limits -- that they in other parts of the statute are treated as people who have to be paid. Interestingly enough -- and the details of this case are quite interesting, I think -- is that the Fishery regional councils originally proposed that these catch limit people would be on the boats and they’d be paid for by the federal government. And the secretary rejected those regulations because the secretary said, well, there’s no money, so even though the secretary’s delegation of power is very limited—the secretary can only reject the proposed rules that are inconsistent with the statute—the secretary said, well, it is inconsistent to statutory law in this case because the Congress hasn’t provided any money to pay for these.

 

So it sent it back to the regional Fishery councils, and then they came up with the bright idea that, well, we’ll just have the private business pay for the, which, again, I don’t think they have the authority to do. And then, weirdly enough, the secretary said, oh, yeah, that’s consistent with the statute. I think that’s a real problem when you think about this in terms of the very basic building blocks of administrative law, starting with delegation.

 

Prof. Philip Hamburger:  If I may get to your question, very simply I think you’re absolutely right, judge, that there’s always a risk that the Court will retreat from actually following the law, and that’s unfortunate. And it’s become almost a signature move of the Court, which is worrisome. That’s not their job. Their job is to follow the law.

 

And I’m profoundly worried that all judicial deference, including Chevron and substitutes for it developed by ingenious academics, will eat away at the Court’s legitimacy. What we need from the Court is truth telling, truth telling about what the law is, clarity and truth telling, and especially when we get to constitutional rights, such as due process of law. There’s nothing more basic that we should expect from the judges that they not be predisposed towards one party or another whether for personal bias or institutional biases, which are even worse.

 

And that’s what we face in Chevron. So they need to just stand back from this and leave well enough alone. There’s no need for this sort of doctrine, and it’s doing tremendous damage to the Court’s reputation.

 

And I want to follow up by talking about how people try to rescue Chevron, and both Kristin and John have attempted to rescue it in a way -- in different ways. And the risk is that you pass a magic wand over it and suddenly what was interpretation becomes delegation, and so it’s a retreat from an interpretation understanding to a delegation understanding of it. Now, there’s some elements in Chevron to support this because Chevron obviously involves both interpretation and delegation. It always has, and all of these deference doctrines have. There’s the formality interpretation which justifies the move in the absence of congressional command or real delegation, but the reality is that the agencies are engaged in delegating lawmaking authority.

 

Well, this is a little worrisome. For one thing, the delegation doctrine itself is already rather dubious and is under reconsideration. And so when you want to press the delegation doctrine to include delegation by ambiguity or worse by silence, it’s even more dubious. But I think actually it’s worse than that because I think the materials which are relied upon for the switch from interpretation to delegation don’t support it. We could go to Chevron, but folks seem to want to rely on Mead. So let’s talk about Mead.

 

Mead is not just a delegation understanding of Chevron. On the contrary, the holding refers to both, and I quote, “delegated authority and agency interpretation claiming deference.” So that which is getting deference is actually agency interpretation according to Mead, so Mead is not going to support this transformation from the vulnerable interpretation to the slightly less vulnerable delegation analysis. What’s more, the word “interpretation” or variations thereof appears 95 times in Mead -- 95 times. The word “delegation” or variants only 38 times. So I’d say it’s about three times more interpretation than delegation from a statistical analysis. I don’t want to rest on that, but you get the idea. The idea that somehow Mead can wash away the interpretive sins of Chevron just doesn’t make sense. Thanks.

 

Hon. Stephen Alexander Vaden:  We have some very good questions --

 

Prof. John Duffy:  Can I just jump in on that for one --

 

Hon. Stephen Alexander Vaden:  Oh, go right ahead.

 

Prof. John Duffy:  So I did not mean to say that Mead was perfect. I think Mead is a half step in the right direction. It did abandon a lot of Chevron’s original analysis. I would encourage the Court to go beyond Mead and get rid of Chevron’s analysis entirely. Focus on delegation.

 

And I hope at some point maybe the three of us could say, and especially Professor Hamburger, whether he thinks the agency’s interpretation in Chevron -- in other words the agency’s rule. Let’s talk as lawyers do -- whether that should’ve been overruled by the Court and say we’re throwing out this rule. It’s illegal. Anne Gorsuch was illegal in writing that rule. I think the answer is no. Anne Gorsuch acted perfectly legally, and the problem with Chevron is just that the Court has a crazy opinion.

 

Prof. Philip Hamburger:  If I may? Sorry, if I could get back to this, two little problems, I think. One, basically if you’re going to remove Chevron so we don’t have to worry about its illegitimacy and then create a substitute next to it which really accomplishes more or less the same thing, I do not think it will add to legitimacy of the Court. I think that will undermine it even more. It looks like game playing, and I don’t think this Court can afford further fears about game playing. I just don’t think that flies in some vision of legitimacy.

 

Second, if we’re going to -- let’s play your game and turn it all into delegation. That’s great because remember Article I doesn’t say “delegation.” It says vested. It shall be vested, which means it’s a mandatory vesting in Congress. And we can confirm this oddly enough from Article III. Article III vests the judicial power -- shall be vested -- it’s mandatory in the courts subject to -- I’m sorry, to the Supreme Court and such other courts as Congress shall identify. So the Supreme Court -- so the Constitution, when it wants to identify congressional power to reallocate legislative powers, it does that in Article III, not in Article I. I think if we turn this into delegation it looks like adding the weakest possible avenue to an already illegitimate vision of agency power.

 

Prof. Kristin Hickman:  I want to break in here and suggest though, Phil, that the idea that interpretation, delegation, and I’m going to throw a third word in there, policymaking -- that these are somehow easily identifiable, mutually exclusive boxes that never interact with one another and that have clear lines between them I think is really mistaking the enterprise. Fundamentally, the challenge here comes down to the fact that it’s not easy to -- the line between interpretation and policymaking is very, very blurry. The line between legislating and executing is at a certain level at the margin very blurry.

 

And the English language for all of its wonderful nuance also is fundamentally limited in that we have to use these terms that we can define differently but at the same time at these margins where they overlap are not so readily distinguishable from one another. And I think what the Court is doing in Chevron and then what it’s doing in Mead and what it’s trying to do now is to say, hey, this is complicated stuff, this idea of deciding what statutes mean and how they ought to work on a day to day technical basis and who is it that’s best suited when we get deep down into the weeds of a statute for figuring out -- once we run out of interpretive tools who’s best suited for resolving what happens next.

 

Prof. Philip Hamburger:  If I may, first, as to the Constitution, I could not disagree more. Take a look at my “Nondelegation Blues,” GW Law Review. The Framers and the Constitution are very clear about the differences amongst the three different powers. There are questions at the margins absolutely, but they’re not the sort of questions we’re talking about here.

 

Now, what are we going to do? We do face a real problem. You’re absolutely right about that. And it’s the simplest solution. Congress just has to expressly authorize the transfer of legislative power to an agency. It’s not that difficult. They just have to say it. It’s a few words. And if they can’t say that, that suggests the courts are trying to advance an administrative agenda, which has been their 20th century MO.

 

And that is a disaster for the Court’s reputation. They’ve created a new sort of government parallel to our real government that is not representative, that places too much weight on presidential elections which is just destroying the country, and destroys their reputation by making them biased in interpreting when an agency is a party. So I think there’s a much easier solution that’s not so fraught. Just let Congress speak. It’s very easy.

 

Hon. Stephen Alexander Vaden:  All right.

 

Prof. John Duffy:  I have one quick question. No, go ahead.

 

Hon. Stephen Alexander Vaden:  I want to stop right here because we’ve got ten minutes left, and I want to ensure we get in at least a couple of questions from our audience members. And fortunately, they are playing off of the themes that everyone is discussing. So the first question, we’ve been talking about delegation and whether it’s valid and when it’s valid. One of our audience members has a rather simple question but one that is at the heart of all of this, and that is what does a valid delegation from Congress to an administrative agency look like? And can you point to one that you believe is valid?

 

Prof. John Duffy:  So let me say that I think the delegation that was explicit in the Clean Air Act, which gave the agency power to fill in some of the details of the statute like what is a stationary source, is that going to be a single plant or can it be a sort of larger facility that’s on contiguous properties or nearby properties, I think that that’s something that Congress even under the most aggressive current view of the non-delegation doctrine, so for example, Justice Gorsuch’s view, is something that Congress can say that’s a detail we’re going to leave to the Agency. They can write that by rulemaking. That’s exactly what Anne Gorsuch did as head of the EPA in the Chevron case.

 

She wrote a rather detailed rule that actually has lots of twists and turns in it. But it’s very confined. She was trying to figure out how big is a source. Is it just each smokestack, or is it each plant? Or can it be maybe a larger campus of plants that are related to each other? And I think that’s a kind of thing that agencies do all the time. I don’t think there is a single member of the Court that would say that’s an unconstitutional delegation of power. I thought Professor Hamburger just said that Congress can delegate those sorts of things, and I do think that --

 

Prof. Kristin Hickman:  I heard too.

 

Prof. John Duffy:  -- Congress was explicit about that.

 

Prof. Philip Hamburger:  I hope I didn’t say that. I was supposing if they could. I would never support that.

 

Prof John Duffy:  Okay. Well, I think that was --

 

Prof. Kristin Hickman:  Well, I was surprised, too.

 

Prof. Philip Hamburger:  Okay. Forgive me. That’s my fault. Can I just suggest what a valid delegation would be? I wouldn’t use the word “delegation.” I think Congress, for example, can authorize the Executive to distribute benefits where the money has been appropriated according to a rule to be developed by the agency because that’s not binding law. But when you get something, such as a regulation of commerce, which is what most of the administrative state is derivative of, that belongs to Congress. And where the law itself doesn’t have a discernible meaning after you use all the canons of construction and interpretation, then a court should just stop. There’s no need for a court to go on then. Congress can fill in the gap later should it wish. And notice, Congress doesn’t have to be expert. An agency can develop the rules, send them to Congress who can pass it actually faster than the agency should it wish to.

 

Prof. Kristin Hickman:  I could point to some more valid delegations, but at the same time I think we ought to move on to another question.

 

Hon. Stephen Alexander Vaden:  Yes. And our next question that I want to tee up actually plays off of some of your comments, Professor Hickman. One of our commenters has been listening in to the discussion about Mead and Chevron Step 1 and asked well, if that’s where all the action is, why don’t we just go ahead and get rid of Chevron anyhow? What work is it really doing? And instead of focusing on deference, focusing on what Congress has or has not ordered and let that settle the matter with perhaps at the tail end Skidmore coming in if there’s any doubt. So they suggest a combination of what is currently Mead and Chevron Step 1 with Skidmore. What do you think about that?

 

Prof. Kristin Hickman:  Well, you know --

 

Prof. John Duffy:  So I think it’s --

 

Prof. Kristin Hickman:  Let me just say -- since it was directed at me, let me just say, number one, I have always been of the view that if you’ve got something like a notice and comment regulation and you really look at what Skidmore says and how the Court has applied Skidmore, Skidmore’s a continuum of deference based on all of these different factors. And where all of the factors are present, you’re not going to get any less deference out of Skidmore than you’re going to get out of Chevron. You’re simply talking about different reasons potentially for why you might defer.

 

But leaving that aside, the work that I think that Chevron does was really what Justice Scalia acknowledged in his 1989 Duke Law Journal article where he acknowledged that sometimes you run out of tools of interpretation and you just don’t have an answer. And in those instances where Congress has tasked an agency with a particular responsibility for executing a statute, particularly in terms authorizing, I think, rulemaking under that statute, you’re really in the realm of policymaking, not in the realm of interpretation. And let’s be real. The courts are not best suited for making those kinds of policy choices as compared to agencies.

 

But another reason why we ought to keep Chevron, I think, just as a purely pragmatic matter has less to do with the Supreme Court and more to do with the lower courts because one thing Chevron does is by allowing an agency in my view through notice and comment rulemaking or sometimes formal rulemaking, although that doesn’t exist much anymore, to go through a process of resolving some question, some policy oriented question that is at that border between interpretation and policymaking, it comes up with a nationally uniform rule. Whereas if you left the policymaking to all of the lower courts, you’re going to end up with a lot of inconsistency, and that’s not good for the rule of law, nor is it helpful for people who are trying to organize their primary behavior to comply with the law, particularly in this day and age when you’re talking about national economies.

 

Prof. Philip Hamburger:  If I may, I appreciate Kristin’s points, but of course it isn’t really a question of expertise or who’s best situated to decide what a substantive rule is. It’s a question of whether or not the courts will really leave it to Congress to figure that out, whether on its own or to shift it to an agency. And so there’s really no need for the courts to risk their reputation.

 

And the danger is that when the courts take upon themselves the responsibility to maintain and sustain an administrative project, which has been really the 20th century endeavor -- when the courts feel an obligation to support it come hell or high water, even at risk to the Constitution, even at risk of their reputation, very bad things are going to happen. And it’s just on a larger scale than what we’re talking about.

 

What’s going to happen? The Court already has a crisis of legitimacy. Do they really want to be engaged in what looks like bias, what is bias? Do they really want to be looking as if they’ll twist themselves in a pretzel to save just a marginal amount of administrative power that could be given if Congress would simply actually authorize it? Is that the assumption, that they’ll be a pretzel for the administrative state whenever necessary?

 

Prof. Kristin Hickman:  No. Look --

 

Prof. Philip Hamburger:  Well, let me just finish. And then -- let me just one more sentence --

 

Prof. Kristin Hickman:  Yeah. Go ahead.

 

Prof. Philip Hamburger:  -- if I may. And then there’s even greater danger, which I think the Court’s actually beginning to realize, that when you combine vast legislative power funneled through narrow administrative tools without representative power really behind it, but simply presidential control, what you’re going to have is not only flip flops in policy between administrations but also warfare in presidential elections. And the Court cannot be responsible for that, and they need to back away from that for their own sake if not for the sake of the country. So I think it’s at that level we have to worry about this.

 

Prof. Kristin Hickman:  I really -- if you will forgive me, I fundamentally disagree with you in terms of the stacks with respect to all of these different cases. Justice Breyer is known to talk about deferences regarding -- he talked about major questions versus interstitial ones. And most Chevron cases are involving deep down in the weeds technical interstitial questions about the day-to-day operations of statutes, not the big picture questions. This is where the major questions doctrine comes in.

 

Prof. Philip Hamburger:  I agree with you. That is the role of the major questions doctrine, but I think that in itself is problematic because what we then face is the fact that basically justice will be done and there’ll be great constitutional care when great corporate interests are at stake. But those interstitial questions can just crush, for example, our clients on their little boats catching little fish in a little part of America. And they’re ordinary people, and they get crushed by those interstitial minor questions.

 

It’s not minor for them, and if even one person’s livelihood or one person’s rights are affected, I think we should equally care as if Google’s or some massive corporation’s rights are affected. The major questions doctrine, whether framed on the REINS Act as some sort of $100 million at stake or judicially -- I don’t know how the judges have really distinguished that -- really treats ordinary Americans with contempt. And I don’t think we can afford that.

 

Prof. John Duffy:  I’d like to say that I think that one of the things that my framework tries to do is take a very broad view of the Executive Branch entirely. Professor Hamburger said that the courts have been pushing delegations. I think that’s false. Congress has been very much in favor of delegations throughout the 20th century.

 

And here’s my proof that it’s not the courts. IN agencies that don’t have delegated power— and I’ll say the Patent Office, the EEOC, Mead or the particular branch of the agency that was involved in Mead—the courts have correctly, I think, said, well, they don’t get a lot of power. And whether you call it delegation or deference, we’re not going to give them a lot of power. I see this in the field of administrative law I study most carefully, which is the Patent Act. The courts decide a lot of the minor interstitial questions about things like what does novelty mean for an invention. They decide that de novo. But I think Congress could give the agency rulemaking power. I wouldn’t personally support that as an idea --

 

Prof. Philip Hamburger:  If I may?

 

Prof. John Duffy:  Yeah.

 

Prof. Philip Hamburger:  The courts haven’t pushed this, but they’ve legitimized it. And I wouldn’t talk about it as delegation or deference. It’s really divesting. We’re divesting legislative power out of Congress into the Executive, which is forbidden by the Constitution. So whether it’s interpretation or divesting, it’s profoundly unconstitutional. And the Court should not risk their reputation by trying to restructure the Constitution to save the administrative state. That will destroy its reputation.

 

Prof. John Duffy:  Well, two centuries ago the Marshall Court sustained a delegation of power to the Executive Branch to reimpose, to reinvigorate a statute that was expired, and the Court did it in one sentence and just said -- this is the Brig Aurora case. The Court said we see no reason why the Legislature can’t make the revival of the statute contingent upon Executive action.

 

Prof. Philip Hamburger:  I think you’re misinterpreting the case, but we’re not going to dispute it now, I fear.

 

Hon. Stephen Alexander Vaden:  Well, unfortunately, we have run out of time, but I think our audience has gotten a taste of the heady issues, from minor points of administrative law to deep constitutional principles about how our government should operate and whether or not it is staying true to its democratic foundations that will face the Court next week. Chayila, I’ll turn it back over to you.

 

Chayila Kleist:  Absolutely. On behalf of The Federalist Society, thank you all for joining us today. A fabulous discussion. I know we could probably go on for another hour, but we’ll have to wrap it there. Thank you also to our audience for joining and participating. We welcome listener feedback by email at fedsocforums—new email—@fedsoc.org. 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.