Courthouse Steps Decision: Loper Bright & Relentless

Chayila Kleist: Hello and welcome to this FedSoc Forum webinar call. Today, July 1st, 2024, we're delighted to host a Courthouse Steps Decision program on Loper Bright Enterprises v. Raimondo and Relentless Incorporated v. Department of Commerce, which were decided last Friday by the court. My name is Chayila Kleist and I'm an Associate 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. Now, in the interest of time, I'll keep my introduction of our guests today brief, but if you'd like to know more, you can access any of their impressive full bios at fedsoc.org. Today we are fortunate to have with us Professor Ronald Levin, who is a William R. Orthwein Distinguished Professor of Law at the Washington University in St. Louis School of Law. Professor Levin specializes in administrative law and related public law issues.

 

Formerly the law school's Associate Dean, he has published numerous articles and book chapters and a case book on administrative law topics including judicial review, rulemaking, and legislative reform of the regulatory process among his professional affiliations, Professor Levin has chaired the ABA's section of administrative law and regulatory practice and served as the ABA's advisor to the drafting committee to revise the Model State Administrative Procedure Act. He's also currently a public member of the Administrative Conference of the United States, ACUS, and he previously served as a consultant to the ACUS and the Supreme Court of Indonesia. Also joining us today is John J. Vecchione, who is Senior Litigation Counsel with the New Civil Liberties Alliance. Before joining NCLA, Mr. Vecchione was previously President and CEO of the nonprofit Cause of Action Institute. He has practiced law at a number of DC 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. 

 

Lastly, joining us today is our moderator for today's conversation, Professor Kristen Hickman, who's a Distinguished McKnight University Professor, and Harlan Albert Rogers Professor in Law at the University of Minnesota Law School. She's also taught at Harvard Law School and Northwestern University School of Law. Professor Hickman teaches and writes primarily in the areas of administrative law and tax administration. Her articles on these topics have appeared in Columbia Law Review, Virginia Law Review, Duke Law Journal, and other publications, and I'll leave it there. One last note - throughout the program, if you have any questions, please do submit those via the question-and-answer feature likely found at the bottom of your Zoom screen so they'll be accessible when we get to that portion of today's webinar. With that, thank you all for joining us today, Professor Hickman, the floor is yours.

 

Prof. Kristen E. Hickman: Thanks so much, Chayila, and welcome everybody. The Loper Bright and Relentless cases, which we're here to talk about today, involve the challenge to a National Marine Fishery Service Interpretation of the Magnuson-Stevens Fishery Conservation and Management Act. That statute establishes a system for developing fishery management plans that include requiring government observers to be carried on board domestic fishing vessels to ensure compliance with the plans. The agency adopted a rule requiring the fishermen themselves to pay for the observers if federal funding was not available to cover that cost. Unsurprisingly, fishing boat owners were not happy with that rule and they challenged it in court. Both the DC circuit in Loper Bright and the First Circuit in Relentless upheld the agency's rule as a reasonable interpretation of an ambiguous statute under Chevron Step Two. The Supreme Court took the case expressly for the purpose of considering whether to overturn or clarify the deferential Chevron standard of review.

 

I think probably everyone on this call is familiar with the Chevron standard, which called on courts first to determine whether the meaning of the statute at issue was clear, but if that statute wasn't clear - if it was ambiguous - then that Chevron Step Two called on courts to defer to reasonable or permissible interpretations by the agency of the statute. Justice Jackson was recused from Loper Bright but not from Relentless, and in a six-three decision on Friday, the Supreme Court did overrule Chevron by name, holding that the deference that Chevron requires cannot be squared with the Administrative Procedure Act because Chevron defies the APA's command that the court is to decide all relevant questions of law and interpret statutory provisions. The court did not resolve the challenge to the fishery service regulation in question. Instead, the court remanded the cases back to the circuits for reconsideration. Justice Thomas wrote a separate concurring opinion in which he reiterated his view that Chevron also violates separation of powers principles. Justice Gorsuch wrote a concurring opinion to discuss his views regarding stare decisis and common law understanding of the judicial role. Justice Kagan wrote the dissenting opinion joined by Justice Sotomayor and with respect to the Relentless case, Justice Jackson. So there's a lot to talk about in these opinions. I have my own thoughts that I can and will share as we go along, but first I want to turn the microphone over to Ron and then to John to share their perspectives regarding these decisions. Ron, why don't you start us off, please?

 

Ronald M. Levin: Alright, thank you, Kristen, and good afternoon everybody. I'm grateful to the Federalist Society for inviting me to be part of this webinar. Well, the advent of Chevron in 1984 was the culmination of a long line of precedence in which the court articulated a strong expectation the court should give great weight to administrative interpretations or language similar to that, and that expectation was just one factor in the interpretive equation, but it was an important element of the administrative common law. In the modern era, courts are more formalist. They don't like overt administrative common law. So in Chevron, that principle was reformulated as a presumption about what Congress would probably intend for courts to do when they encounter an ambiguous statute. I don't think that was a drastic departure from prior law, but just a reformulation. So what is this long standing law? Well, it's always been agreed that if a court finds a clear message in a statute, it should follow it. Chevron reaffirmed that point, but the important question has always been if Congress has not taken a clear stand itself, who should fill in the gap?

 

Should it be the administrative agency or should it be the reviewing court? The dissent in Lober Bright argued there were several good reasons to assume that in this situation, Congress would generally want the agency to make that call. For one thing, an agency tends to be experienced with the subject matter of the appeal, which can be quite specialized or complex, and generalist judges usually don't have the same level of familiarity with the agency's challenges. And for another thing, an agency has a congressionally assigned responsibility to implement the program to achieve its goals. It needs flexibility to deal with emerging challenges that Congress may not have anticipated and it's fair to assume that Congress would want it to have that flexibility.

 

And furthermore, as Chevron brought into the debate, agencies are politically accountable for their interpretations of ambiguous statutory interpretation. They answer to the President, they answer to the legislative branch through oversight hearings and the budget process, and so forth. So indirectly they answer to the people, but unelected judges have no such accountability. They can be entirely out of touch with public sentiment. Now I would argue that's exactly what's happening these days and that may not be the kind of language that wins hearts and minds at a Federalist Society event, but even if you don't agree with me about current events, the structural difference is clear. Now, at the same time, Chevron was always a presumption that could be rebutted, so that doctrine was refined over time to allow for significant judicial controls over agency action.

 

Now, Loper Bright does not try to exclude those practical considerations from judicial review entirely but suggests that reviewing courts can display so-called respect to administrative interpretations under the so-called Skidmore test. Well as our moderator's excellent scholarship has demonstrated, Skidmore has been applied in very different ways at different times by different judges, and Roberts seems to envision a very weak version of Skidmore in which a court has the option of showing respect to the agency's views but there's no strong expectation that it should, as Chevron would have suggested. As I read the Loper Bright opinion, if a judge says in a given case "I don't respect the agency at all and I never have and so I won't give any weight to its views", that would not be unreasonable here. I think that's the gist of the change that Loper Bright has wrought. Now given that Chevron provided a stable framework on which countless decisions have been predicated for four decades or so, what reasons does the court give for abandoning it?

 

The court relies on the language of the Administrative Procedure Act and I've done a fair amount of scholarship on that exact issue. I consider the court's rationale if I can use a technical term, specious if not preposterous. Or since this is a case about phishing, it's kind of a red herring. The act provides that a viewing court shall decide relevant questions of law, but it doesn't say how to decide them. The court reads into those words a prohibition on deference, but that reading was not supported by the congressional sponsors of the act nor by the courts in the immediate wake of its enactment. They knew very well that the act was not intended to change the law of judicial deference. So they went on applying deference principles just as they had been doing before the act passed, and nor was the Loper Bright view shared by three generations of judges in the intervening years, including leading judges who lean a bit to the right like Henry Friendly and William Rehnquist and Antonin Scalia and Ray Randolph and countless others.

 

So the interpretation that the court now endorses never got traction until the rise of the anti-government movement of about a dozen years ago. And so I view the APA argument the court makes as more of an excuse than a serious justification. Another argument in the Loper Bright opinion is that the Chevron doctrine became too complicated and loaded down with refinements, but I think Roberts has the argument backward. Those distinctions were part of a very commendable continuing effort to refine the doctrine and strike a balance between the judicial and administrative sears. But now Loper Bright has thrown out that body of precedent, which administrative lawyers understood fairly well, and everything will be up for grabs in the coming years. We're going to see endless arguments about whether to apply strong Skidmore, weak Skidmore, or something in between. It'll be very disruptive.

 

I think the real explanation for what's going on here is that it's part of a campaign by the Supreme Court to challenge the administrative state on a number of fronts. If you put it together with past term's decisions in Jarkesy and Ohio v. EPA and the recent creation of the major questions doctrine, Loper Bright also speaks of reluctance and maybe refusal to share interpretive power with another branch of government. It's no wonder that some people are calling this decision a power grab. I might not choose that language myself, but I agree that it speaks to the majority's overconfidence in its own judgment. I'm pretty sure John's going to tell us in a few minutes that the decision restores the separation of powers, but to my mind, Loper Bright will tend to undermine checks and balances and subvert the separation of powers, and these are radical moves that I would not call conservative. So I'll leave it at that, but I'll look forward to your questions.

 

Prof. Kristen E. Hickman: John, go ahead, please.

 

John J. Vecchione: So I'll add to the professor's list Judge Silverman, who as far as I know, unlike Scalia, showed no sign of changing his views on Chevron before he passed away last year. So there was a lot of that. Now I have to change my Federalist Society bio because I'm also Counsel of Record in Relentless and Counsel of Record for most of the individual plaintiffs in Murthy. So it's been a big term and I was in, I happened to guess right, and I was in the courthouse on Friday morning to watch it come down. I think I did not get the impression either there or upon reading the case that Skidmore's respect is in as perilous a condition as the professor has remarked. I'm going to have to read it again because that's interesting to me. But here's my views and I'll just say when I was at Cause of Action, we started the Loper Bright case and Cause of Action decided not to do third-party cases anymore, so when I went to NCLA, I did Relentless. So I was involved in both of these from pretty much the inception and we filed up in Rhode Island with Relentless. They were in DC for Loper Bright. One of the things that's interesting about this and I think shows the weakness of Chevron, is if you want to talk about how different courts looked at it, the district court in Loper Bright found the statute was clear and the government won because this was perfectly allowed under the statute without reference to Chevron. The DC circuit I think wrote a very strong opinion on how you're supposed to do Chevron and found only with Chevron deference. It's not clear, there's ambiguity so the government wins. Of course, there was a strong descent which probably got this taken by the Supreme Court.

 

Then in the First Circuit, Judge Smith, Chief Judge in Rhode Island, he did almost the exact same thing as the DC Circuit did, but then it went up to the First Circuit and the First Circuit wrote what I call a mushy opinion. They didn't say clearly whether it was because it was clear or because of ambiguity, but they invoked Chevron and they invoked the steps so I think they invoked Chevron. I obviously am thrilled with the result and I'm thrilled with the reasoning as well because what this does is there is no expertise in the agency. You talk about a power grab, Congress refused in 1990, in this case, the Magnuson-Stevens Act was amended by Congress to make clear that observers could come on fishing boats to make sure you're catching the right amount of fish and the right kinds and the size, all the various laws that the Magnuson-Stevens Act gives to the Secretary of Commerce.

 

And it is a very powerful law. It says "The Secretary may" or "The Secretary must" scores of times, so he has lots of power, but what he didn't like, what the agencies didn't like is Congress did not use its funding power and the power of the purse in the way the agency wanted. They wanted more money for observers. Congress would not give them more money for observers. So what you had was an agency at odds with the chief funding organization of the United States without which you should not be able to spend a penny getting in a fight with Congress and saying, "You know what we're going to do? We are going to charge the regulated for these observers." My clients in the Loper Bright case - the clients of Cause of Action - had no chance to oppose this before Congress, before their elected representatives, because when that amendment went in in the 1990s that the observers had to go on the boat, all the fishermen shrugged and said, "Yeah, I guess they have to."

 

There was no opposition to it, none. Not from any of the fishing organizations, not from any of the congressmen who are very sensitive to these fishing issues because no one thought it would cause this funding problem because it's not in the statute. So then what happened? You come forward 20 years, and the agency decides, "You know what? We have Chevron. We are going to say that we need more observers, so we're going to create these observers. We're going to make the industry contract with these observers and pay them more." There are sections of the Magnuson-Stevens Act that allow observers to be paid by industry in various means. One is up in the Northern Pacific, which if you watch "The Most Dangerous Catch", that's where they are. It's highly capitalized, the most profitable fishery in the world, and they allowed something like this to happen but they said, "But it's capped, no more than 3%." 

 

And it was the same with another section which lapsed where the fishermen split all fish in an area, that too was capped by the Congress at 3%, and then the foreign fisheries because they don't pay any taxes and they're using our resources, they also have a place where they have to pay. But each of these, and I think that's capped too. So when Congress was looking at it, they capped it and they said what a reasonable rate was where they allowed it and they didn't allow it here, but because of Chevron, the agencies thought, "Well, we'll slip it in and there's nothing the fishermen can do because they're then going to have to be moving through Congress because we will give them a fait accompli." So I think the power grab was on the administrative side and I think it's easily demonstrated because who pays is not something that Congress can't figure out. Who pays is a pure congressional question that the administrative agencies in this case had seized.

 

That was our argument and I think it prevailed. The other thing that's going on here that I don't think Loper Bright gets rid of, which is interesting from a textualist and an originalist position, is they want to give - the court seems to be very upset both at oral argument and here - of if the agency has a reasonable construction of a statute and what regulation can do as long as it's reasonable, they can change the law 180 degrees every administration. The court seems to be very upset about this. I mean Brand X isn't explicitly overruled, but Brand X is getting to them, I'm pretty sure. So what I think that the opinion does is when we are looking for the meaning of the statute and what regulations allows, if you are the administration that got that law passed and you start implementing regulations at that time, the interpretations at that time I think are going to be given some kind of weight, if not deference.

 

They're going to look at it and say, "Well, they got it passed. They kind of knew what it meant. We better have a good reason not to." So I did not see any step away from the original interpretations of statutes when they were first done. They do not like this back and forth without any congressional input and making 180-degree turns I think. So the other aspect of this that Cass Sunstein has pointed out, I don't want to grab his glory because I had not thought of this when I first read it, but he notes that Roberts goes out of his way to say that Congress can allow certain kinds of deference or respect on certain issues of expertise. It's not clear what he means by that, but I'm sure that those with Professor Levin's views are going to try and run a truck through it because it is interesting because they'll go back to the statute and find where maybe it's there if not in the APA. We at NCLA had argued to beat the band that this was unconstitutional and urged them to reach the constitutional question.

 

They did not reach the constitutional question. They did this statutorily, which I think again is humility and not a power grab. They have not told Congress, "You may not do this constitutionally", which I wish they had, but they've said, "Why don't you start looking at what you want these agencies to do, and then you put in a statute what you want these agencies to do, and if you do that we'll take another look." So I think as Professor Eskridge sometimes talks about in his legislative analysis, it's something of a chat between the branches on this issue. So we are very happy, we'll go back down to have this looked at without Chevron and it's going to be interesting. It's going to be interesting what the courts do. As I said, the DC District Court thought the law was clear and Judge Smith thought without Chevron - I think he thought, I don't want to put words in his mouth - but my impression is without Chevron you don't get this. So we may be back up. I do think that the anti government movement started in this aspect in 1789 and not a few years ago. So I do think it has returned to those types of principles and I do welcome it, but part of our differences may just be that I don't think that they're going to be - they're not going to be hostile to what I'll call real expertise. When the Nuclear Regulatory Commission says this many roentgens are bad for people. I don't see the courts not giving that high Skidmore respect. Similarly, if one is highly concerned about the fate of the Washington western gray squirrel, I think that once again, whatever science went into figuring out whether that is a distinct species or not as Justice Kagan was concerned about that type of science, once again, there's going to have to be something on the other side. This idea that courts with all these liberal arts majors who took government and English and stuff are going to be saying, "No, that's not how DNA works is - I'm highly skeptical of. I think it's going to be more in this vein where the administrative agency wants to do something that Congress itself had not done in the statute. And I also look forward to discussion questions.

 

Prof. Kristen E. Hickman: So with those opening remarks, I'm going to take moderator's prerogative not only to respond a little bit but also to offer my own thoughts since this is an area in which I've written a lot about. I think it's obvious that Loper Bright is sweeping in a sense by overturning Chevron, but there's a lot more in the opinion, some of which has been talked about or alluded to, but let me unpack this a little bit. So it's interesting that the court emphasizes I think its own role in saying what the law means - in resolving questions of law - and yet at the same time, to me what's also interesting are sort of the carve-outs. So for one, it talks about some old precedents - Gray v. Powell and Hirsch Publications - in a favorable way in describing in the past, courts giving some amount of, I hesitate to use the word deference because it seems to me that the “D word” is now verboten, but some amount of - the term "respect" seems too limited to me because to me, they respect all litigants in a way of speaking.

 

So it's somewhere between respect and deference, whatever that term might be. But where the court gave that kind of consideration to mixed questions of fact and law - resolutions of mixed questions of fact and law - by the agency or another carve-out that they offered was at least with respect to where the best interpretation of the statute is that Congress expressly delegated discretionary authority to the agency to resolve some sort of issue. They talked in this opinion, part of Chevron has always been about trying to draw a line between statutory interpretation on the one hand and policymaking on the other, and they do recognize in the Loper Bright opinion that courts or agencies in some instances are given policy making discretion by Congress and where there's an express delegation of discretionary power from Congress to an agency, Chief Justice Roberts says, "Well, there the court's role is simply to make sure that we've complied with the non-delegation doctrine and perhaps to delineate to some extent the boundaries of that discretionary authority."

 

But at least as I'm reading Loper Bright, he seems to be suggesting that within that bounded space of discretionary authority, the agency's got the flexibility to act subject perhaps only to the relatively deferential arbitrary and capricious review. And then we've got the Skidmore review. I think I'm a little bit more of the view than Ron that Skidmore review, while not perhaps as deferential as Chevron and certainly not as deferential as the mechanical deference approach that the court described as representing Chevron Step Two in the Loper Bright opinion, Skidmore review functions, at least based on my own research at the lower courts, Skidmore functions much like a bit of a sliding scale where you look at the presence or absence of different contextual factors, and in some instances, courts are likely to be super respectful or at least a little bit more concerned about whether or not they should second guess what the agency has said in part because of reliance interest.

 

So the different factors that Skidmore and its progeny talk about are things like thoroughness and consistency and longevity and contemporaneity, procedural formality, whether the question is right in the agency's wheelhouse of expertise or whether it's more peripheral, but where you have the presence of a lot of contextual factors, at least historically, the courts have been more loathed to overturn agency interpretations out of a concern that they may not have as expert of a perspective as the agency has or they may upset reliance interests as opposed to the absence of those factors. 

 

I do have to disagree with John about this, I think Brand X has been overruled as well - implicitly if not explicitly - but when you put together express statutory delegations and mixed questions of fact and law and Skidmore review being perhaps not as deferential as Chevron, but more respectful than perhaps any other litigant might get, it seems to me that Loper Bright is not quite as sweeping as the "We are overturning Chevron" conclusion might suggest. At least that's my initial take. The future remains to be seen. But with that, let me turn to just asking, Ron, you alluded to this a little bit already, but I want to give you a chance to respond to John as well as what I've had to say, but also John, I'm curious to hear your thoughts as well about the implications of these decisions going forward systemically for litigants, for agencies and for Congress. Ron, what do you think?

 

John J. Vecchione: Before Ron speaks, when you do answer Ron, why do you think Skidmore is so dismissed by Loper? What's your reasoning behind that? Because I'd really like to know that.

 

Ronald M. Levin: I'm not sure which to answer first. The moderator has the control here. So I would say what you're going to see is countless cases in which litigants say that the agency view is wrong and there's no - Chevron does not provide any cover, and let's agree that Skidmore in some sense has been endorsed in Loper Bright, that's going to mean a lot of back and forth about how does it apply here, in what way does it apply here? And without trying to say what the answer is, I think there's going to be a lot of uncertainty, and right now people will be very uncertain about it. So I think the transaction cost of this decision is significant. As to what the bottom line is, I don't know that it changes that much. I was writing about this subject in the early eighties before Chevron, and I remember what things were like then. It wasn't that different, and so I don't join with those who say that the administrative state is doomed or that an earthquake has taken place. But the difference is that in those days when courts were applying what they called Skidmore, they were doing it in the context of having a fair amount of respect for the administrative state. And I think now if we have these judges applying Skidmore, they're going to do it in a way that everybody knows is their attitude toward the administrative state, and it's not going to give as much latitude to the agencies. That's who they are and the doctrine they left us leaves them plenty of room to do that. Okay. Am I answering both questions at once here, which was Kristen's?

 

Prof. Kristen E. Hickman: What are the implications of these suggestions for litigants?

 

Ronald M. Levin: Yes, I answered both at once. I've answered both at once because I think that the opinion does not give a very supportive role for deference in its own terms. Yes, they cite the Skidmore case, but I'm going to differ a little bit from the way Kristen, I frame this. As I said before, her article is a classic on how Skidmore has been interpreted in the lower courts, and I've cited it, and I've recommended it. It is definitive, but the question now is what does Roberts mean by it? And that I think is a very different issue. It may or may not reflect what courts will do. I think the circuits have their own precedents and they can look on the one hand at what they've said about it, but on the other hand, they can say, "Well, wait a minute, here's Loper Bright. And it does not say that we expect you to defer on technical issues." Sure, I agree with John. That'll happen a lot, but the court just can't stand to tell you it really ought to, and that I think is telling.

 

Prof. Kristen E. Hickman: John?

 

John J. Vecchione: Well, the one thing that's how professors differ from trial lawyers like me and eventually Supreme Court lawyers if we get lucky, is that I don't want to downplay my own case, but I don't want to say that it causes a huge disruption. I think if it's an earthquake and it is certainly important, it's only going to knock down the bad buildings. I think that what we have here is a couple of things that are going to happen systemically. First, I was thinking about this historically, why did courts used to think that the administrative state was good? I am from the tail end of this period, but the administrators were seen as having combated the Great Depression well, whether they did or not, you can talk to the people over at Cato, but it was perceived that way. They won World War II, they put a man on the moon, they cured polio, they did all these things, and I always bring up nuclear power. They invented nuclear power and the atomic bomb administrators were doing all this stuff. And so they were almost heroes in this society and that changed over time with well just what's happened to the world.

 

So I do think that that was the high watermark of the success of these administrators in some respect. So that does factor in some of this. But I think what the court was saying and why at oral argument and elsewhere they brought up Skidmore is I think they were telling those judges below who might have the views that Professor Levin thinks they have, "Hey, watch it." You can't just say, "Oh, the government's come in here. They don't know what they're talking about." You do have to treat the branch with respect when it puts information before you, but I do think that the administrators themselves are not going to swing for the fences anymore. Part of what we will see is administrators, if they want to make the regulation stick queuing more closely to the statute and you will see them go back as the SEC has gone back and the FTC too, when the court ruled that they didn't have the discouragement power from just the injunction power, they go back and they ask for it. So I think you'll see more going to Congress to ask for things and they always have a voice in Congress. So I think that systemically is good. And I also think that the administrators have the incentive to queue closely to the statute they're enforcing and not just say, "What policy do I want? How do I cram it in here?" I think that's systemically good. And I think for litigators now, the first case I saw citing Loper Bright came out on Friday and I cited it in a brief. 

We have a challenge to the Labor Department's rules on who's an exempt employee under the overtime pay. And that day when we cited Loper Bright by 1:00 PM in our brief, in our reply brief, and a court in Texas, and I have to say I haven't been able to get through it yet, cited it in putting in an injunction. So it will have a lot of effect on judges who feel that they have to go along with the administrative agency's views. I think that happened in Rhode Island. So I'm looking forward to seeing what happens there. The real question is the statute - the other systemic thing that may be bad is that I don't think that the regulators will try to change regulations as much. When they try to change a regulation, whatever the regulation is, if it's been there a while and they have an original court case on it from when it was first implemented, they're not going to want to change it because it'll be firmer than whatever they do under a Chevron doctrine.

 

So it may cause a certain amount of, depending on how you look at it, stability in the regulations or sclerosis in the regulations depending on your views. But I think that's the other systemic outcome. I do think now you're going to have people like me probing what they mean about all of these things in various cases, particularly in new regulations as they come up and in enforcement. So you might not be able to bring a case because of the statute of limitations, but if someone tries to enforce a regulation that you don't believe was properly reviewed at the time because of Chevron, those defenses are going to go up. I think where you're going to see a lot of Chevron use is when they're trying to enforce some regulation they've been enforcing for a while. Some people are going to bring that up. So I think those are the systemic things that are going to happen.

 

Prof. Kristen E. Hickman: We have a whole bunch of questions in the queue. Some of them pick up on a point that I want to ask about as well. Toward the end of the majority opinion, Chief Justice Roberts said, "We do not call into question prior cases that rely on the Chevron framework. The holdings of those cases that specify agency actions are lawful, including the Clean Air Act holding of Chevron itself, are still subject to statutory stare decisis despite our change in interpretive methodology." I've been reading lots of commentary over the last few days about exactly how much we ought to expect in terms of the relitigation of past cases interpreting statutes and upholding agency interpretations of statutes under Chevron. What do you think are the implications of this language from the majority opinion declining to call into question these past cases and invoking statutory decisis? What are the implications of that language for all of the hundreds or even thousands of cases in which the courts have cited Chevron in evaluating agency statutory interpretations?

 

John J. Vecchione: I will answer the question, but I really have a question for you two professors, because you may know better than I do, and that's this. I ran into Brother Donziger who brought the original Chevron case and I said, "Well, you lost that case and now you want me to lose my case. But it's the same thing." And he says, "Ah, I'll have lost it that time and I'll have lost it this time." But I don't know whether or not that point source regulation is still here or if they've changed that regulation. I think what Roberts is saying is that if that regulation was good then we aren't going to revisit it, but if they are revisiting it, it won't get Chevron protection. But I think what he's saying is that if the agency relied on our interpretation of that, it's almost like when an individual party has relied on a court case to do something, they're not going to punish you later. You have reliance, you have reliance interests, and that's a powerful one in stare decisis. I think that's what he's saying, but I'm not sure, the cases will have to show. So I'll leave it to Professor Levin.

 

Prof. Kristen E. Hickman: Ron?

 

Ronald M. Levin: I think it's a really subtle problem, and I don't think it'll have just one answer. I think what Roberts is, I understand why Roberts wants to do it. He believes in some degree of stability - although not enough to keep Chevron in place - but yes, he likes continuity. So it's an effort, but I think it won't take long for us to figure out that in a certain case, a court said this is reasonable, and we don't have to say more. You can give that stare decisis effect, but it would not preclude someone from coming to say, "Yes, but all they said was it was reasonable. They didn't say that the answer was right." or as the language of Loper Bright uses, "the best answer." I don't like that phrase, but I think that's the alternative. So there's a possibility of not giving it as much stare decisis effect as Roberts might be trying to say, but I think that there's a lot of inertia in the system, and I think as John said, agencies and particularly would be under some pressure to keep things where they are because they'd have to explain the departure.

 

But what if a court wants to depart from an earlier decision? And as I said, the prior case just said the agency's view was reasonable there. I think there's a latitude there in a number of these cases. I think the court will have said, we think the agency's right, and besides they get Chevron deference, well there I think there's a pretty good argument that the former rationale is still below the circuit, and so there's no room to change it. But on the other end of the spectrum of possibilities, what if the court revisiting the old precedent just really disagrees with the outcome? And I think the court we have has some propensity to do that. And so then if you want the opportunity to open it up again, you can say, "Oh, all they said was it was reasonable that we'll give the stare decisis effect of that and we'll take it really seriously, but overall, we think the better answer is the other way." I think that could happen. And so I don't think there'll be just one answer to this type of problem.

 

Prof. Kristen E. Hickman: So if I'm hearing you right, Ron, you think that some number of existing regulations that previously have been upheld by courts have some fair amount of potential of being revisited and overturned, maybe obviously not with respect to the original challengers perhaps, but on a prospective basis. Am I hearing you right?

 

Ronald M. Levin: Well, I'm really talking about what is doctrinally possible. As a practical matter, I think there'll be a lot of recognition that people have relied on an existing interpretation and it would be rambunctious to challenge it. The closest analogy here is to what happened when the Supreme Court adopted the Mead case, which could have led to a whole bunch of challenges to say, "Oh, that case was decided under Chevron, but under the new view of interpretive rules, that's all defunct, so we're going to start over." It didn't happen very much. It happened a little bit, but not very much because I think inertia is often a factor. And moreover, if you're any kind of judicial realist, you may say, look, they upheld it under Chevron, but they probably agreed with it. And so it's not going to be helpful to challenge it again because we know what they are really thinking, even though they put in this different mumbo-jumbo. As I said, if you have a different court or judges with a different point of view, then that may not be as much of a factor.

 

Prof. Kristen E. Hickman: So gentlemen, one question from our Q&A, are there any past cases that particularly come to mind as being most likely to be in peril, or is it really just sort of a catch-as-catch-can sort of thing?

 

Ronald M. Levin: Well, obviously Brand X is not a very vibrant precedent at this point, but I think if that case came along, there's a good chance the court would have written the opinion a little bit differently and said, "Our best answer is that this was left to the judgment of the agency." And the Loper Bright opinion says that's a legitimate proposition.

 

John J. Vecchione: I will tell you this, Gorsuch cited Buffington, which was an NCLA case, which was really aiming at that, and he went out of his way to say he wanted to have taken that case, and then he put it here in Loper Bright. So I do think that Brand X is not long for this world, but I will say this, I think Roberts authored the dissent in Arlington County. I mean, I don't know. It had some feeling of what was going on there. I would say that as far as litigators go, I think that most of them, at least I will be trying to use it on new regulations first. It strikes me that you don't - if you were designing a way to, if you were just hostile to the administrative state, you want it to roll back regulation. It strikes me you don't strike at a hard point, you strike at a weak point. And so although not all lawyers are the same, you want to see how it works out with new regulations under what Robert says, going forward, we're going to do this rather than something where there's precedent. And I also think that there's going to be a lot of resistance within the courts to review regulations that have already been upheld, particularly when industry has been operating under them for a long time. I have a feeling there's going to be resistance.

 

Prof. Kristen E. Hickman: So let me ask you another question that I've gotten a lot. Do you think that this decision will result in changes in congressional drafting practices with respect to statutes?

 

John J. Vecchione: You want me to go first or?

 

Ronald M. Levin: Sure, if you want.

 

John J. Vecchione: All right. So I really hope so, and I do think what - I do think that it will eventually, maybe not this year, but what's happened in a lot of these cases, in a lot of big legislation is that when they're doing the negotiation, and this happened in the Affordable Care Act, they told all the pro-life Democrats that there would be no pro-life effects. And they told all the Democrats who were pro-choice, "Oh, this is going to be great pro-choice", but they didn't say anything about it. So when the regulations come in, of course, someone's gotta figure it out. They haven't made it clear. So does Chevron apply? There's a lot of horse trading like that where I don't believe they're going to horse trade anymore. The people who are pushing the statute will say, "We either need this or we don't need this." They will be more intentional in what they allow to get through because they know that when they have a friend in the president, he's not just going to be able to fix the problem.

 

Ronald M. Levin: One of the frequent debating points regarding Chevron was that it encourages Congress to pass the buck. It encourages Congress to do less lawmaking. I have never thought that was a very convincing proposition. I think Congress resolves things to the extent it can. They wanted to make policy decisions, but those goddamn people on the other side aren't reasonable. If we could write it and sensible people could write it, we could resolve these issues. But unfortunately, we just can't reach an agreement. And so what are we going to do? Well, we can just delegate it. We can write vague language that makes everybody satisfied, which defaults to the interpreter to decide it. Now that'll happen and they still may have trouble reaching an agreement, but now the default interpreter is more the court. So I think it will change drafting practices in that some congressional negotiating teams will say, "Fine, it'll just land with the Roberts Court. That's fine." And others will say, "Oh no, we don't want the Roberts court getting a handle on this so we'd better put in something specific even though it is not as good as I would've wanted, but at least it keeps it out of the hands of those nine or the majority of those nine." So yes, maybe sometimes.

 

Prof. Kristen E. Hickman: So another question from the Q&A that I'm going to paraphrase at least a little bit is I think the interaction is going to be between Loper Bright and today's decision in Corner Post. And for those who are listening, but maybe not quite as familiar with Corner Post. So that case decided today had to do with the six-year limitations period of 28 USC section 24 0 1 for raising challenges under the APA against agency action where the Supreme Court today held that the six-year limitations period is only triggered when the challenging party has suffered an injury. In other words, as a result of the regulation that is being challenged, how do you think that the decision in Corner Post is going to interact with the decision in Loper Bright?

 

John J. Vecchione: To answer the question, you just asked, I was at both oral arguments, and this is when Jackson said, "In a world with no Chevron, what does Corner Post do?" She said that - she asked that question, and Kagan quickly said, "If we were in such a world" or something like this, it was kind of funny. But I think to relate to your last question, that Congress will either make a statute of limitations or a statute of repose, and they'll think very hard about it because a statute of repose is a "no more challenges after this time and we mean it", and a statute of limitations is individualized. And the reason for Corner Post is it's individualized. So if Congress wants a statute of repose, they're going to have to put that in and then the people who hate that are going to know about it, but there's not going to be any fooling around about it. So I do think that that is going to happen. I also think that there are going to be challenges by new entrants into the market against regulations that the industry doesn't like. And there may be a bit of Professor Levin's, "Hey, let's take a shot with this court."

 

Ronald M. Levin: So I think that Corner Post will invite more challenges, that is challenges by people that would've been time-barred, and they'll use whatever doctrines are available to them. They'll use Loper Bright, they'll use substantial evidence challenges. They'll use arbitrary capricious challenges. I don't think we're down specifically to the Chevron issue or the Loper Bright issue, but I think broadly speaking, you'll get more challenges because there are people who will be able to make timely ones. There are a number of statutes now that provide very short time limits in the environmental area, particularly, like 60 days,

 

John J. Vecchione: Thirty for the Magnuson-Stevens Act. (Laughs)

 

Ronald M. Levin: Yes. So to the extent John is saying, yes, Congress may pass more of those, I think that's probably right. But even those don't make rules completely immune from challenge. After those, after the time limit runs out, and particularly in enforcement proceedings, the court will typically say, "Okay, you wouldn't have challenged this because it made no difference to you until the agency came around to sue you, but now that they're suing you, you can defensively challenge it on the basis that it was never legal to begin with." And despite those statutes, litigants are able to do that and they'll be able to do that in the context of the six-year default statute as well. So it's not - the Corner Post decision increases the odds that a rule will be challenged on various grounds including deference, but it's not all or nothing.

 

John J. Vecchione: I will just add a practice point. In the real world, nobody wants agency action against them. So when you're looking for a client, no one will go out and challenge the rule when it's been upheld. It'll have to be someone who's already in the soup coming and putting in the defense. So that's the difference between challenging it when nobody's going to hurt you, then challenging it only when your back's against the wall. There is a slight difference in gathering clients that way.

Prof. Kristen E. Hickman: So we've got a number of questions in the Q&A that I think, Ron, you're probably the best qualified on this call to answer, about whether and to what extent Loper Bright is going to have an impact with respect to state administrative law, whether state agency action or state judicial review of agency action. What do you think?

 

Ronald M. Levin: So I have studied state deference doctrines, and there was a minority that followed Chevron, but really the state minority, I think most of them never got on board that train to begin with. And they would apply something akin to a Skidmore standard. And so now I think they will say, "Oh, fine, the court has given us the green light." But they were doing that before. I mean, a lot of 'em were citing Gorsuch's dissents to justify their positions even when they were nominally governed by deference doctrine because the state judges are just less enamored with their agencies overall. So I think it will reinforce a less deferential attitude that's been around for a long time.

 

John J. Vecchione: And I should add that certain states have legislatively taken away their Chevron doctrine saying "There shall be no Chevron." And then other Supreme Courts have done so, including Wisconsin. And so it has been in retreat. But I think that if you're worried about environmental laws, there is something heartening for those who think that this is going to cause a big disruption in that particular area. And that is, I don't think California has ever had a Chevron and nobody says they're not able to regulate their environment or anything else. And we see this in a lot of states. They don't have a Chevron, but they have clean water. They have clean air that is regulated by those state agencies because even the EPA has programs that only the states can run. And so if you're worried, go look at those states, and I don't think you're going to see anything that you can assign to the lack of Chevron in any environmental degradation.

 

Ronald M. Levin: Yeah, it's true that there are states that have legislatively abolished deference or constitutionally abolished it, and one might say, "Oh, well, they won't do that anymore because now we have a different deference regime." but I don't even think that's true. I think there are enough anti-government people running state governments that they'll ask for even more protection against this insidious deference phenomenon.

 

Prof. Kristen E. Hickman: So along similar lines, do you anticipate that, and this is another question from the Q&A, do you anticipate that Congress, other than the statute of repose that you mentioned, John, there have been times when Congress has made noises about legislating with respect to standards of review in the administrative law context, reforming the administrative Procedure Act in some statutes calling particularly say for Skidmore review rather than Chevron. Do you think Loper Bright is going to prompt Congress to rethink standards of review in the administrative law context at all?

 

Ronald M. Levin: No. It'll reduce the pressure on them to do that because the court has done it for them.

 

John J. Vecchione: I will say this, so I think that's probably right, we also have the Cargill case, and the argument there was that the executive banning bump stocks stopped congressional action. Here, that might be something that happens, but what I think may happen is those who want the administrative state will try to at least statute-by-statute put in more deference, and then we'll have the question of whether this is constitutionally deference or not. The real question is will they have a majority to put that in? I don't know, but this has been - the people who didn't want deference have been working on this - like me and other people, and I suppose Congress has been talking about it, but now the incentives are going to switch and some other people are going to want to put in and at least test Robert's question or statement about putting deference into statutes, individual statutes. I think there'll be an appetite. I don't know if there will be ability.

 

Prof. Kristen E. Hickman: Fair enough. Chayila, we're only supposed to go for an hour, right?

 

Chayila Kleist: Yes. Unfortunately, I do have to cut y'all off. I know we could go for another hour. It certainly is an interesting conversation and there's plenty to discuss with that, however, we really appreciate you taking the time and carving out the section of your afternoons to share your expertise with us. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. 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.