Courthouse Steps Oral Argument Litigation Update: American Hospital Association v. Becerra

Event Video

Listen & Download

On Tuesday, November 30, 2021, the Supreme Court heard oral argument in American Hospital Association v. Becerra.  One of the certified questions asks the Court to revisit the famed Chevron doctrine which has been subjected to much criticism since its implementation.  The petitioners ask the Court whether Chevron allows the Department of Health and Human Services to set reimbursement rates for hospital groups and whether 42 U.S.C. 1395I(t)(12) precludes the petitioners' suit.  Rich Samp of the New Civil Liberties Alliance which filed an amicus brief in the litigation before the Court joins us to discuss the oral argument. 


Richard A. Samp, Senior Litigation Counsel, New Civil Liberties Alliance 

Moderator: Eli Nachmany, Student Member, Administrative Law and Regulation Practice Group Executive Committee; 3L Student, Harvard Law School  


To register, click the link above. 


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at



Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, December 10, we discuss an oral argument in American Hospital Association v. Becerra. My name is Evelyn Hildebrand, and I’m Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.


      Today we are fortunate to welcome Eli Nachmany and Rich Samp. Eli Nachmany will be moderating our discussion this afternoon, so I’ll introduce him briefly.


      Eli is a 3L student at Harvard Law School, and he’s a student liaison to The Federalist Society’s Administrative Law and Regulation Practice Group Executive Committee. We’re delighted he can moderate this afternoon, and I’ll leave the introduction of Rich Sam to him.


      After our speaker gives opening remarks, we will turn to audience questions. If you have a question, please enter it into the Q and A feature at the bottom of your screen, and we will handle questions as we can towards the end of this afternoon’s program.


      With that, thank you for being with us today. Eli, the floor is yours.


Eli Nachmany:  Thank you, Evelyn, for the kind introduction. I’m honored by the opportunity to moderate this Teleforum, and I’m excited to hand it over to our expert. We’re pleased to be joined today by Mr. Rich Samp, Senior Litigation Counsel at the New Civil Liberties Alliance. His longer bio can be found on The Federalist Society’s website. Mr. Samp, thank you so much for being with us today to discuss this case. The floor is yours.


Richard Samp:  My pleasure, Eli. The Supreme Court heard oral arguments last week in American Hospital Association v. Becerra, and it, perhaps, was overshadowed by some of the higher profile cases that were argued last week. However, the case really does raise some interesting issues regarding the extent to which courts should defer to interpretations of federal law given by federal agencies and, generally, that falls under the rubric of Chevron case—Chevron Deference. And in fact, the counsel for the petitioner here, perhaps, has been running away from Chevron all along. What his emphasis has been is that the statute at issue––which is a very obscure Medicare statute––should be interpreted in his favor, and we really don’t need to get into Chevron.


However, the very first question during oral argument came from Justice Thomas, and he was saying, “Well, is Chevron implicated here, and should we consider overruling Chevron?” Counsel kind of hemmed and hawed for a while, but eventually, he came right out and said, “Sure, if that’s what it takes to win my case, you should overrule Chevron.” So, at least there are some people at the Court who are considering doing so.


      Chevron was a decision from the early 1980s and basically says that when Congress passes a law and gives an agency rule-making authority to implement the law, the presumption is that Congress intended that agency to be able to write the rules in such a way that they could decide any ambiguities in the statute. The thought is that Congress purposely left those ambiguities in the statue and/or knew that there would be new issues that would arise after the statute was adopted and that the most appropriate body to resolve those ambiguities is the federal agency that has the rule-making authority.


In recent years, Chevron has become more controversial, particularly among those who think that it is the obligation of federal courts to state what the law is. And so, there has been quite a bit of literature written by those who think that it’s time to reconsider Chevron. I think, on the Court, there are at least two justices that have made clear their view that Chevron ought to go, and those are Justices Thomas and Gorsuch. It remains to be seen whether there are others on the Court who would go that far.


      But just to briefly recap Chevron, it’s what has now become a three-step process about how you go about deciding whether Chevron deference applies. At what’s become known as step zero, the Court is supposed to decide, “Is this the sort of question that Congress would have wanted to be resolved by the agency, and is the agency’s statement as to the interpretation of the law in question the sort of interpretation that courts ought to be deferring to?” Certainly, at the very least, the agency position has to be, in some way, formalized. For example, merely stating an interpretation in a brief filed in court generally is not considered the sort of formal proceeding that would lead to a court deferring under Chevron to the agency’s position. It’s not absolutely required that the agency have gone through formal notice and comment rulemaking before its position is entitled to deference. But in general, that’s the way it normally arises—that there is a formal regulation that has been issued before Chevron applies.


If it does apply, then we get to step one, which basically asks, “Is the statute ambiguous?” And if it is not ambiguous, if there is an interpretation of the statute that is the best statute, and that has to -- if it’s really, really close, that’s not good enough. But if there is a best interpretation, then the Court ought to adopt that interpretation at step one and go no further. And if the government’s position is not the best interpretation, then the government will lose.


However, if there is genuine ambiguity in the statute, then we get to step two, at which point the government wins so long as the interpretation that it has put forward is reasonable. And generally, courts have been pretty deferential on step two. If the case gets to step two, generally, the government wins. Generally, the government can come up with some reason for its interpretation, and courts will then defer.


Now in the case before the Court, the American Hospital Association case, as I said, it’s a very obscure Medicare statute, so I really won’t go into depth about that. I don’t think any of our listeners probably, other than hospitals, care about this particular statute, and I’m going to refer to those statutes as subclause one subclause two just to make it easier to discuss.


What happens is that under Medicare, when hospitals provide outpatient services to their patients, they oftentimes will administer drugs to those patients, and sometimes those can be very expensive drugs. And so, this statute covers the amount of reimbursement under Medicare that a hospital is supposed to receive.


Now, the general rule––under what I’m referring to as subclause two––is that reimbursement is supposed to be based on average price, and average price is something that is determined, generally, by the manufacturer of the drug in question. And usually, there is no dispute as to what the average price is, and I don’t believe, in this case, there is a question about what average price is. Now, under subclause two, there is a little bit of wiggle room that HHS has. It is entitled to -- first of all, to calculate what the average price is––but as I said, that’s rarely in dispute––and it’s also entitled to adjust the average price, and what is meant by adjustment is one of the issues in this case.


There is also a special provision, subclause one, which allows HHS to do a detailed survey about how much hospitals are actually paying for their drugs. And if HHS does this kind of survey, it is then entitled to base reimbursement on the actual cost that hospitals or groups of hospitals have incurred, and they don’t have to just use average price. Well, I think it’s well-recognized that there is a certain class of hospitals who have an average cost of these drugs that is far less than the average price of the drug. And the reason is these hospitals––referred to as section 340B hospitals––are ones that serve patients in, generally, low-income situations. And so, what Congress has said is those section 340B hospitals are entitled to discount rates on the drugs that they get. So it’s well-known that they pay a good deal less. And the reason for that particular statute providing for the discount is the thought that that encourages hospitals to provide services to what would otherwise be underserved communities and people who couldn’t otherwise afford medical care.


The result is that these 340B hospitals make a good deal of profit on the outpatient drugs that they administer because they pay a fairly low cost, but if they’re going to get reimbursed on the basis of average price, which is a good deal higher than their cost, then that’s a good profit source for the hospitals. Those hospitals argue, “Well, that’s what Congress intended was to give us this profit because the whole point was that we are money-losing enterprises, and we need this money to be able to continue in business.”


Now, Medicare, however, decided that -- HHS decided that that really was not a particularly fair situation, so it decided it really would take us way too much time to do the kind of detailed survey that’s required by subclause one in order for us to be able to actually use the cost of drugs as the basis for reimbursement. So what we’re going to do is we’re going to look to subclause two, and we are going to look at average price, but then we’re going to adjust average price. And of course, we’re going to adjust average price by taking into account what we know to be the substantial discounts, with the result that the average price that section 340B hospitals were determined to be having––and only Section 340B hospitals––with about 30 percent less than what they had previously been receiving. So not surprisingly, they didn’t like that interpretation, and they sued. And the question is whether or not HHS is permitted to take this shortcut to avoid using subclause one and the detailed, difficult survey that would be required to use subclause one or if they can use their adjustment authority under subclause two to do as they did and substantially reduce reimbursement rates for 340B hospitals.


I’m not going to get into any of the arguments that were raised by both the government and by the petitioners as to who has the better argument here. However, when the case came to the D.C. Circuit, it overruled a district court decision that was in favor of the hospitals and instead said, “Well, first of all, we only adopt the position of the hospitals against the position of HHS if the statute is really clear, and we don’t think it is really clear.” They looked at the statute, and they said, “Well, you know, there are certain superfluities -- the statute would be superfluous in some ways if we ruled in favor of the hospital, and it would be superfluous in other ways if we ruled in favor of HHS.” And when you have competing -- I can’t even tell you the word, but when you have competing superfluities in your statutory construction, it’s time for us to throw up our hands and say, under Chevron, that the statute is ambiguous.


And so, we go to Chevron step two, and we say that the position of HHS is reasonable, particularly because they have, perhaps, some interest in having a fairer allocation of costs and not giving huge subsidies to just one type of hospital. And so, the D.C. Circuit upheld HHS’s position by a 2:1 vote.


The Supreme Court granted review. And so, one of the issues lurking in the case: Is Chevron deference applied here? And as I said, the very first question that Justice Thomas asked during oral argument is, “Should we consider overruling Chevron?” So Chevron is very much in question. However, during the course of oral argument, it became clear that at least eight out of the nine members of the Court thought that HHS’s position was all wet, that even if there were competing superfluities, the much better interpretation of the statute was the one that was espoused by the petitioner. And so, I think there is very little doubt that the Court is going to rule in favor of the petitioner. And really, at this point, the only issue is, what does the Court say about Chevron?


Well, the easiest way for the Court to rule is to -- at Chevron step one, to say that the statute really is not genuinely ambiguous, there is one much-preferred interpretation, and to say that even applying Chevron at step one, the government loses, that’s the end of the case. And frankly, that’s what I expect that the Court will do.


However, there is a feeling, I think, among a number of the justices, as reflected by their questions, that there are far too many lower court judges who see Chevron as the easy way out. If they don’t really want to get involved in interpreting a complex Medicare statute, wouldn’t it be just much easier to say, “We defer to the view of HHS,” and leave it at that? And several years ago, in a case by the name of Kisor v. Wilkie, the Supreme Court said, “Well, we think that, on the one hand, you can defer to the government when the statute or regulation is ambiguous, but we mean really, genuinely ambiguous. We really, really mean that, and you are not to defer until after you have done a very, very close reading.” I think that view is one that is particularly shared by Justice Kavanaugh, who has written a law review article that basically says just that.


Now, the Supreme Court, in the Kisor case, was dealing with something called Auer deference, not Chevron deference. It’s a closely related deference doctrine, but it says that in some cases, you ought to defer to an agency’s interpretation of its own regulation as opposed to deference to a congressional statute. There are many people who, even if they are supporters of the Chevron deference doctrine, have come to view Auer as highly misguided. Perhaps the best example of that is the late Justice Scalia. He was a strong proponent of Chevron, but later in his career, he came to view Auer deference as being misguided. And in fact, in the Kisor v. Wilkie case, it became fairly clear that there were a sizeable number of justices who, in a proper case, would be willing to overrule Auer deference. I’m not sure that that same dynamic exists for Chevron deference.


But as I said, the Kisor case has some very strong language written by Justice Kagan about how genuine ambiguity is really a very limited concept, and you shouldn’t apply it too often. So I suspect that when the Court rules in favor of the petitioner in this case, it’s highly likely to say that all of those things that Justice Kagan said in the Kisor case apply fully to Chevron deference as well as to Auer deference. And so, in that sense, there will be something said about the scope of Chevron deference.


Beyond that, I think it probably depends on who gets the writing assignment. I’m assuming that Chief Justice Roberts will be in the majority, and he will assign it. If he assigns the case to either Justice Thomas or Justice Gorsuch, you can be sure that even if Chevron is not explicitly overruled, they will say things that call into doubt Chevron and invite challenges in the future. On the other hand, if he assigns the majority decision to somebody like Justice Sotomayor or Justice Kagan or if he keeps the decision for himself, that probably it will be a very limited decision. I think that if somebody like Justice Barrett or Justice Kavanaugh gets the decision, they are probably likely to use the opinion to castigate lower court judges for applying Chevron too broadly and jumping to the conclusion of ambiguity far too quickly. But I don’t see any major changes.


And so, at this point, I think that -- where’s the Court going on Chevron right now? Well, I think that there are some areas that Chevron could well be cut back on in the next couple of years. I think, in particular, there are cases coming up to the Court about what happens when the government has waived the right to have Chevron deference should the Court, nonetheless, decide, “Well that’s part of statutory interpretation, and we should apply it despite the waiver.” And there are decisions going both ways on that issue.” So I suspect that the Court may well decide in the future, explicitly, that when the government waives its right to invoke Chevron deference, it’s not the role of the courts to second guess the agency on that and to, nonetheless, apply it on its own.


There are also a number of competing rules of statutory construction that generally cut against the government. For example, generally, criminal statutes are supposed to be interpreted––at least when they’re ambiguous––in favor of the criminal defendant and against the government. Cases involving veterans seeking disability benefits are supposed to be decided in favor of the veteran—against the government. There is a canon of construction called the Indian Canon that says that in cases involving Indian rights, the government is supposed to resolve ambiguities in favor of Indians.


There is something that is going to be coming up this term in a case by the name of West Virginia v. EPA having to do with the major question doctrine, which it says that there’s a presumption that when a statute arguably decides a major issue that would, kind of, reorient all of society, the presumption is that Congress doesn’t intend that interpretation of the statute unless it has said so explicitly. And there other such competing canons. And I think there is a real possibility that the Court will say that––at least in some of those situations––Chevron deference gives way to those competing canons or, at the very least, Chevron should not be applied in a case in which the competing canon arises.


So with that, I will conclude my remarks and open to questions. And of course, Eli, if you have anything that you want to add, please step in right now or ask questions on your own.


Eli Nachmany:  Terrific. Well, Mr. Samp, thank you so much for that comprehensive presentation. We have a Q and A function here on the webinar, so we encourage the audience to please submit questions through that Q and A function. I’ll read them live here. And I do have some questions of my own in case there’s a lull in questions from the audience. We do have a question from the audience, and it’s from Timothy Harker (sp) who asks, “Had HHS issued a regulation or regulatory guidance adopting its interpretation of this statute?”


Richard Samp:  No, they had not issued one, not a formal -- I mean, yes, they have interpreted the statute, but they did not go through formal notice and comment rulemaking. But even if they did, that would strengthen their case for Chevron deference. But the whole issue of, “Is there genuine ambiguity,” would still be the same. And as I said, I think the Court is prepared to rule that there is no genuine ambiguity and, therefore, it’s going to rule against HHS.


Eli Nachmany:  The first question out of the gate from Justice Thomas was, “Should the Court overrule Chevron?” And so, my first question out of the gate will be the one I think everybody wants to know, “Will they?” What do you think are the odds that Court actually just goes whole hog and overturns Chevron?


Richard Samp:   I think it’s highly unlikely. Certainly, it has always been Justice Robert’s practice to try to steer the Court in the direction of going forward fairly deliberately and slowly. And given that everybody in the Court, other than Justice Breyer, seems convinced that the government’s position is all wet, that they can rule against the government without taking on Chevron. And if they can do that, I just find it hard to believe that -- given Justice Roberts and like-minded justices, that they would use this case to overrule Chevron.


Eli Nachmany:  Carlos Carpy (sp) asks, “What would a Pro Tanto decision look like here?” Or put differently, “How much might Chevron need to be re-understood or re-evaluated in the disposition of this case?”


Richard Samp:  I think it’s likely that lower courts, if chastised by the Court in this decision, are very likely to, perhaps, be less likely to apply Chevron deference in the future. I mean, there’s language in Chevron that kind of goes both ways on this issue. Chevron, as originally written, could be seen as -- the statute has to be absolutely clear before we’re going to rule against the government and say that it’s not ambiguous. But I think later decisions have focused on one footnote in Chevron that seems to suggest, “No, maybe you really ought to take a very careful at it.” And I think that latter view of Chevron has prevailed at the Supreme Court. I don’t think that the Court has used Chevron to uphold a statute in at least about five years, and sometimes doesn’t even mention Chevron in cases which it rejects the government’s position in a case. So this decision probably will induce lower courts to be less likely to cite the language in Chevron that can be used to say that we defer unless the language is absolutely clear.


Eli Nachmany:  Christian Townsend (sp) wants to know––and you spoke a little bit about the possibility of a Kisor-like opinion here––“Do you see a similar outcome for Chevron here as what happened to Auer in Kisor?” And then, following up on that, “If yes, would you expect another zombie precedent concurrence from one or both of Justices Gorsuch and Thomas in that case, and do you think they could get anyone to join on to something like that?”


Richard Samp:  I suspect that, probably, Justice Thomas, in particular, is likely to write separately and to say, “I concur in the majority opinion, but I do think that in an appropriate case we ought to step forward because there’s far too much application of Chevron, and I think that it’s a serious violation of separation of powers.”


Eli Nachmany:   So on that thread, when it comes to Justice Thomas and Chevron, he’s written in past cases that Chevron might not obtain the same stare decisis weight as other cases because it sets out a rule of statutory interpretation. What do you make of that, and do you think the Court is likely to pick up on that thread of reasoning here?


Richard Samp:  If it comes to actually overruling Chevron, sure. I think that that is a basis for distinguishing it because it’s not as though there are any real reliance issues. That’s one of the strongest arguments in favor of deference -- is that if people have been, for a while, relying on the former decision to their detriment, it perhaps is not fair for the Court to overrule what it has been saying in the past. And besides, of course, Congress, anytime it wanted to, could pass a statute saying, “Oh, by the way, we do away with Chevron deference.” And so, if Congress could do that, somebody who believes strongly in precedent could use that as a reason not to overrule it.


As far as Justice Thomas is concerned, he’s never really been a great believer in precedent to begin with, so he might make that argument to try to appeal to some of the other justices. But I don’t think that he really needs to make that distinction in order to convince himself that Chevron ought to be overruled.


Eli Nachmany:  Let’s say we do get a Kisor-like opinion in this case, and they say, “The lower courts, you should look for genuine ambiguity before deferring under Chevron.” What do you think the practical impact of that would be in government regulatory litigation?


Richard Samp:  As I said, I think there are many lower courts that, in an effort to take the easy way out, cite language from Chevron that they think means that we ought to defer unless the language is absolutely clear. Judge Srinivasan––a very respected judge on the D.C. Circuit––essentially said that. He used the word “clearly” throughout his decision in saying, “It’s not our role to second guess the agency unless they are clearly wrong.” And I have to think that a strong Kisor-like decision here will stop those kinds of decisions.


Eli Nachmany:  We have another question from Carlos Carpy who wants to know, “How concerned should we be about the specificity of this case?” I mean, do you see a decision dodging the Chevron question entirely, given the particular fact pattern at issue?


Richard Samp:  Well, it’s not the particular fact pattern at issue that will make this decision, perhaps, less momentous because every statutory interpretation case arises within some specific context. What makes this case, perhaps, less likely to be auspicious is, as I read the statute, I don’t think the issue is particularly close. The case that would be more potentially momentous is one which everybody agrees that there really is an ambiguity in the statute that cannot easily be resolved. And in those cases then, of course, you really have to address should Chevron deference apply here because the statute––by at least the thinking of eight of the nine justices––is pretty clear that that statutory-specific point of the case is unlikely to lead to a momentous decision.


Eli Nachmany:  Related to that question -- you spoke a little bit about these cases, I think, in broad strokes, but are there other cases coming along that might be better vehicle to cut back on or overturn Chevron than the particular case at issue here?


Richard Samp:  Well, one that comes to mind is one that my organization––the New Civil Liberties Alliance––is involved with. It has to do with a federal regulation that held that bump stocks, which are attachments that can be put on semi-automatic rifles, should be redefined as machine guns. And that was something that was done in 2018, I believe, after a mass shooting occurred in Las Vegas with a shooter who had bump stocks on his semi-automatics. And that reversed a long-standing ATF interpretation of the regulation. And every judge that, to date, has upheld this particular regulation has done so on the grounds that, A, the statute is genuinely ambiguous as to what a machine gun means, and therefore, B, we are going to defer. In other words, there has been -- there have been a lot of judges who have looked at this, but they -- all of the decisions have said, “We don’t think ATF is clearly right, but they’re not clearly wrong, so we’re going to defer.”


So there is a pending circ petition in a case called Aposhian v. Garland in which the Court potentially could discuss the viability of Chevron. Now that arises in the context of criminal statutes. And so, one possible outcome of that case is the Court may rule that Chevron deference is inapplicable in the case of criminal statutes. That’s also a case in which the government did not ask for Chevron deference yet. At least two circuits––the Tenth Circuit and the D.C. Circuit—held, “We’re going to cram Chevron deference down the government’s throat. We’re going to apply it regardless of whether they want us to or not.” And they upheld the statutes on the basis of Chevron deference. So that’s a case also that will raise the issue of should courts apply Chevron deference even when the government has waived application of Chevron.


Eli Nachmany:  So, Mr. Samp, this is the final question from me, and after that, we’ll close out if we don’t have any more audience questions, but­­ the Court also granted a question in this case about reviewability. And in the academic literature, Professor Nick Bagley has, kind of, been at the forefront of arguing that the presumption of reviewability finds no source in history, positive law of the Constitution, or even sound policy considerations. Can you summarize the reviewability issue here and give us a sense as to whether you think the Court might take up something like Professor Bagley’s argument that we should do away with the presumption of reviewability?


Richard Samp:  Answering your second question first, I doubt very much that the Court will take up the idea of doing away with the presumption. That presumption has been accepted by the Court pretty unanimously for so many years that -- and there doesn’t seem to be any sentiment to do away with it. I think, if anything, the presumption seems to just get that much stronger over the years. However, the Court has also recognized that that presumption can be overcome when Congress is sufficiently explicit that it thinks that the statute should not be reviewed. And in fact, in this particular case, there is a statute that suggests that perhaps Congress did not want the courts to be able to review these sorts of rate-making decisions by HHS just because they would so much complicate the administering of the Medicare statute. So it is conceivable, in this case, that the Court will punt on this case by holding that the statute in question is applicable and that it bars review.


However, I think it should be noted that during oral argument, I do not recall any questions being asked about whether or not this statute is applicable so that even though the Court, on its own, added a second question to this case about reviewability, if the justices don’t want to ask any questions about it, that, to me, is a strong indication that the Court is not going to dismiss the case based on unreviewability. But even if it did so, it wouldn’t do so on the basis of Professor Bagley’s theory of, “Let’s do away with a presumption.” It would almost surely do so on the basis of, “Okay, we do have that presumption of reviewability, but given the statute at issue here, we think that presumption is overcome.”


Eli Nachmany:  Excellent. Well, seeing no more questions in the Q and A function or -- oh, we do have one more question from an anonymous attendee. “Why did the hospitals fail to challenge the HHS regulation adopting its position on the statute?” I think you addressed this earlier about --


Richard Samp:  Yeah, I’m not sure that there is a formal regulation at issue. What they are challenging is the -- what HHS issued was a policy which said that their reimbursement rates for the coming year or for the years in question would be lower on the basis of the adjustments that they made under subclause two, and they did challenge that. They said that the adjustment that was performed by HHS violated subclause one and subclause two and that therefore, that they were entitled to the higher rates that they had had in the past.


Eli Nachmany:  I’m seeing one more question in the chat here from Carlos Carpy. “How has Chevron survived so effectively over the years, and if we were to move here, to what direction should we move with this decision?”


Richard Samp:  Well, I think it survives because, number one, it makes life easier for the courts. They can get a relatively easy answer to what might otherwise be a difficult statutory question. And also, I think it’s important to realize that when Chevron was written in the early 1980s, it was at the instigation of conservatives who were worried about courts overstepping their bounds and overturning, at the time, the Reagan administration regulations that conservatives thought were good regulations. And so, they broadly embraced Chevron at the time. So it’s only been kind of a long process that has gotten many people to decide that it’s time to reexamine Chevron because it leads to -- instead of the tyranny of courts, it leads to the tyranny of federal agencies.


      Now, in terms of your first question of what would replace it -- I think that there, perhaps, is a place for what is known as Skidmore deference, which is basically saying that, in some cases, the interpretation of the statute requires a detailed knowledge of the subject matter of that statute and that the federal agency that administers the statute, in some cases, may have a better understanding of what the area requires and therefore, what that statute was intended to accomplish. And so, we will give respectful consideration to what the agency has said, and so, that becomes a limited form of deference.


And in fact, Justice Breyer, in his questioning, said, “I don’t think, under Chevron step zero, Chevron deference should apply here, but I think we ought to apply Skidmore deference. And given that HHS knows a lot more about this area than we do, I would -- under Skidmore, I’m likely to defer to what HHS said.” And I think while his particular application of Skidmore deference in this particular case is probably a real stretch, I do think that there is a role for saying we are going to give respectful consideration to what an expert agency has said and we’re going to -- before we reject it, we’re going to listen to it very, very carefully. And I think that is probably a very -- a more than adequate substitute for Chevron.


Eli Nachmany:   Fantastic. Well, I think that will wrap up our conversation this afternoon. Mr. Samp, thank you so much for your time. I will now hand it back over to The Federalist Society to close us out.


Richard Samp:  Thank you, Eli.


Evelyn Hildebrand:  Thank you both very much. I’ll just add a very brief word of thanks to both of you for your participation, for your great presentation, and all of the audience questions and comments. On behalf of The Federalist Society, our thanks to our speakers and to our audience.


We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming webinars and virtual events. Thank you all for joining us today. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at