Fuld transskription af What Are the Post-Chevron Courts Doing? (Notice & Comment May 2026 Conference Panel 1)

was 67 00:03:55.520 --> 00:03:58.199 pretty bipartisal consensus for a couple decades that this was 68 00:03:58.240 --> 00:04:00.479 like a good thing. And then and then it started 69 00:04:00.479 --> 00:04:02.719 to followut a favor on the right, and we had 70 00:04:02.759 --> 00:04:05.960 Loper Bright the term before last where the Court came 71 00:04:05.960 --> 00:04:08.199 out and said we're getting rid of this and replacing 72 00:04:08.199 --> 00:04:10.120 it with something called independent judgment that we'll talk a 73 00:04:10.120 --> 00:04:12.199 little bit about. So we've got this great panel here, 74 00:04:12.240 --> 00:04:14.439 but I want to start out with Ramon because Ramon 75 00:04:14.520 --> 00:04:16.560 actually argued the case, and so kind of want to 76 00:04:16.560 --> 00:04:19.680 get a sense of maybe reflecting back on the kind 77 00:04:19.680 --> 00:04:22.120 of the warst stories of arguing it and kind of 78 00:04:22.160 --> 00:04:23.959 maybe flag some of the open questions that came up 79 00:04:24.000 --> 00:04:26.160 at oral argument that we're still kind of exploring today. 80 00:04:26.319 --> 00:04:28.279 Yeah, well, thank you, Chris. It's great to be on 81 00:04:28.759 --> 00:04:33.439 such an expert panel with new friends and old and 82 00:04:33.720 --> 00:04:36.040 also thanks to the Grace Center and to the Chamber 83 00:04:36.279 --> 00:04:40.439 Litigation Center, it's kind of been a fun opportunity over 84 00:04:40.480 --> 00:04:42.279 the past couple of weeks to go back and see 85 00:04:42.279 --> 00:04:48.000 what's happened in the case law since the local Right decision. 86 00:04:48.279 --> 00:04:52.279 You know, as a practicing litigator, I'm not encountering this 87 00:04:52.360 --> 00:04:54.560 as an academic, and so I sort of like am 88 00:04:54.600 --> 00:04:56.759 dealing with the issues as they pop up, as opposed 89 00:04:56.800 --> 00:04:58.800 to systematically, and it's sort of interesting to go back, 90 00:04:58.839 --> 00:05:02.720 and it was sort of my big takeaway was like 91 00:05:02.800 --> 00:05:06.160 deja vous, because it felt like going back and looking 92 00:05:06.160 --> 00:05:07.639 at some of these issues and some of the issues 93 00:05:07.639 --> 00:05:09.160 that the lower courts are dealing with, it felt like 94 00:05:09.160 --> 00:05:12.639 my moot courts had been like brought to life because 95 00:05:12.720 --> 00:05:16.480 the major issues, the major debates and ambiguities in the 96 00:05:16.519 --> 00:05:18.920 decision that I think the lower courts are struggling with 97 00:05:19.040 --> 00:05:20.959 are some of the things that we knew were going 98 00:05:21.000 --> 00:05:23.920 to come up at a argument and that we're probably 99 00:05:23.920 --> 00:05:27.120 not going to be fully resolved in the court's opinion. 100 00:05:27.360 --> 00:05:31.040 And so you know, after the decision came out. When 101 00:05:31.079 --> 00:05:33.720 I was talking about the decision, it seemed to

me 102 00:05:33.920 --> 00:05:37.639 like there were maybe four areas that we were going 103 00:05:37.720 --> 00:05:39.920 to need to get more information on into how the 104 00:05:40.279 --> 00:05:46.120 post Chevron world was going to shake out doctrinally. One 105 00:05:46.360 --> 00:05:49.480 is sort of like, what is the role for agencies 106 00:05:49.519 --> 00:05:53.360 going forward in the interpretive process? If any The Court 107 00:05:53.519 --> 00:05:57.360 seemed to hint at or say that that skidmore weight 108 00:05:57.480 --> 00:05:59.879 skid more deference is a thing of some sort, but 109 00:06:00.120 --> 00:06:03.120 it's not clear what it is. It's not clear how 110 00:06:03.160 --> 00:06:06.240 determinative it can be, how weather it changes outcomes. So 111 00:06:06.240 --> 00:06:08.399 that's those sort of like one topic that I think 112 00:06:08.439 --> 00:06:14.120 the Court's decision left unresolved. A second is to what 113 00:06:14.319 --> 00:06:18.720 extent is Congress allowed to delegate authority to agencies and 114 00:06:18.759 --> 00:06:21.920 give agencies discretion And can they still do that? And 115 00:06:21.959 --> 00:06:24.800 if they do that, is it like the old style 116 00:06:24.920 --> 00:06:28.600 kind of Chevron style delegation of interpretive authority. Is it 117 00:06:28.639 --> 00:06:32.160 more of a delegation of legislative relative rule making authority, 118 00:06:32.399 --> 00:06:36.240 policy making authority subject to the arbitrary and capricious test. 119 00:06:37.319 --> 00:06:38.240 What are courts going to. 120 00:06:38.199 --> 00:06:40.079 Do with some of the language in Low or Bright 121 00:06:40.639 --> 00:06:44.800 that allows for some delegations there's also some tricky language 122 00:06:44.839 --> 00:06:47.920 in the opinion that is not entirely self evident how 123 00:06:48.120 --> 00:06:51.639 court should apply it with respect to story decisis. You know, 124 00:06:52.319 --> 00:06:55.120 not every decision, not every one of the eighteen thousand 125 00:06:55.120 --> 00:06:59.759 cases that it's cited. Chevron automatically gets overruled when Chevron's 126 00:06:59.800 --> 00:07:04.199 over But like, to what extent do courts have to 127 00:07:04.199 --> 00:07:08.279 rethink their precedent and rethink the legality of agency actions 128 00:07:08.560 --> 00:07:11.959 given the court's decision, you know, looking backwards and then 129 00:07:11.959 --> 00:07:13.720 finally looking forward to a little bit like what are 130 00:07:13.720 --> 00:07:17.000 the effects if any, of low or bright on other 131 00:07:17.079 --> 00:07:20.639 types of difference and most importantly deference to agencies when 132 00:07:20.639 --> 00:07:24.240 they're interpreting their own regulations under the hour doctrine under 133 00:07:24.519 --> 00:07:27.439 Kaiser if you Willkie, So, those seem to be like 134 00:07:27.480 --> 00:07:31.759 the major issues that were left unresolved that you know, 135 00:07:32.160 --> 00:07:34.319 we're very handy for a PowerPoint. I could talk to 136 00:07:34.360 --> 00:07:38.560 clients and family members are around the kitchen table about 137 00:07:38.600 --> 00:07:41.399 you know, like sort of the next wave and it's 138 00:07:41.399 --> 00:07:43.240 great to be here to talk about some of those 139 00:07:43.639 --> 00:07:46.680 ambiguities and see how they're being resolved by the lower 140 00:07:46.680 --> 00:07:47.480 courts with this group. 141 00:07:47.680 --> 00:07:51.240 Awesome. Can I ask two questions that I didn't give 142 00:07:51.279 --> 00:07:52.439 your heads up all just for fun. 143 00:07:52.680 --> 00:07:53.279 Oh please? 144 00:07:53.680 --> 00:07:55.920 What was the like, was there anything an argument that 145 00:07:56.040 --> 00:07:58.560 like cut you off guard or that AI didn't catch 146 00:08:00.079 --> 00:08:02.480 the moot, sir? I'm just kind of curious. Was there 147 00:08:02.480 --> 00:08:04.319 a surprise that you had, like kind of going in 148 00:08:04.959 --> 00:08:07.160 going in versus going out one of the nice things. 149 00:08:07.160 --> 00:08:09.959 And let me just say, my my co counsel, John 150 00:08:09.959 --> 00:08:11.759 BECCIONI is here, Harvey. 151 00:08:12.000 --> 00:08:16.680 No, no, not not Harvey. The John is here. 152 00:08:16.759 --> 00:08:18.680 And you know, one of the nice things about having 153 00:08:18.720 --> 00:08:21.519 great co counsel and a great team at Latham and 154 00:08:21.560 --> 00:08:24.560 a great group of friends throughout who hell helped me 155 00:08:24.560 --> 00:08:27.399 prepare was like the Moo courts were very good preparation. 156 00:08:27.519 --> 00:08:29.959 I don't think there was any anything that came up 157 00:08:29.959 --> 00:08:33.200 at argument that was like totally out of out of 158 00:08:33.279 --> 00:08:36.000 left field. I do think like one of the moments 159 00:08:36.039 --> 00:08:38.960 in the argument that I thought was interesting was an 160 00:08:38.960 --> 00:08:41.759 exchange that I had with Justice Jackson. And this one 161 00:08:41.799 --> 00:08:44.960 sort of stood out later where we were having this 162 00:08:45.159 --> 00:08:48.399 kind of debate and it turned into somewhat deep sort 163 00:08:48.399 --> 00:08:52.480 of jurisprudential philosophical conversation and I was trying to make 164 00:08:52.519 --> 00:08:55.279 the point that you know, in the Chevron context, basically 165 00:08:55.279 --> 00:08:58.000 whenever you're talking about the meaning of a statute, it's 166 00:08:58.039 --> 00:09:00.000 like a legal question. This is like in the wheel 167 00:09:00.080 --> 00:09:03.879 house of judges and Justice Jackson sort of like framework 168 00:09:03.919 --> 00:09:06.320 for approaching that was just quite different from the way 169 00:09:06.320 --> 00:09:07.919 I was thinking about, probably because I'm more of a 170 00:09:07.960 --> 00:09:11.440 formalist than she is, just you know, a slightly

different approach. 171 00:09:11.960 --> 00:09:14.559 And she was almost incredulous at the idea. You know, 172 00:09:14.639 --> 00:09:16.600 she said like something along the lines of, are you 173 00:09:16.679 --> 00:09:20.799 saying that anytime there's a question of statutory interpretation, that's 174 00:09:20.799 --> 00:09:23.440 a legal question? As if I had to say no 175 00:09:23.519 --> 00:09:25.559 to that question. I was like, yeah, no, that's exactly 176 00:09:25.720 --> 00:09:28.399 that's my position. And so it was a little bit 177 00:09:28.440 --> 00:09:30.559 interesting to see that a little bit of a disconnect, 178 00:09:30.559 --> 00:09:33.639 which sort of I think sheds light on the fact 179 00:09:33.679 --> 00:09:36.279 that what we were debating in the case, it wasn't 180 00:09:36.360 --> 00:09:39.120 just about you know, a rule affecting fishermen. It wasn't 181 00:09:39.159 --> 00:09:41.440 just about a rule that's going to affect you know, 182 00:09:41.519 --> 00:09:44.080 citizens and companies that are out there. But there were 183 00:09:44.120 --> 00:09:46.879 like fundamental questions about like sort of what law is 184 00:09:46.919 --> 00:09:50.279 and what judges are there to do that are underlay 185 00:09:50.360 --> 00:09:52.039 the whole thing. So that was sort of like one 186 00:09:52.120 --> 00:09:53.919 one interesting moment from the argument. 187 00:09:54.000 --> 00:09:56.240 Yeah, I like that. I mean it also reflects kind of, 188 00:09:56.279 --> 00:09:58.600 in my mind, the evolution of Chevron. You know, when 189 00:09:58.600 --> 00:10:01.039 it originally came up, it was kind of of this idea, 190 00:10:01.080 --> 00:10:03.759 if there's an ambiguity, now go forth and make policy, 191 00:10:04.559 --> 00:10:06.279 and it became more I think, as Justice Candy said 192 00:10:06.320 --> 00:10:09.000 when his last opinion is like reflexive deference, right, so 193 00:10:09.000 --> 00:10:11.120 you don't necessarily do the hard work of figuring out 194 00:10:11.159 --> 00:10:14.559 what the statute means. And not everyone did that, of course, 195 00:10:14.600 --> 00:10:16.559 and the Court tried to take it more seriously. Kind 196 00:10:16.600 --> 00:10:18.799 of that, but it is interesting how you kind of 197 00:10:18.840 --> 00:10:21.399 saw that oral argument through Justice Jackson's questions at least. 198 00:10:21.559 --> 00:10:23.519 Yeah, and I think, you know, on that point, you know, 199 00:10:23.559 --> 00:10:25.200 one of the things that came out as I was 200 00:10:25.200 --> 00:10:28.120 preparing in the case and working on the briefs and everything. 201 00:10:28.399 --> 00:10:32.600 You know, they're like really great judges. I think I 202 00:10:32.639 --> 00:10:36.360 said this at argument who had such different approaches to Chevron, 203 00:10:36.399 --> 00:10:39.440 you know, Judge Silberman, who is more in the kind 204 00:10:39.440 --> 00:10:42.320 of nineteen eighties and nineteen nineties Scalia mold of being 205 00:10:42.399 --> 00:10:46.120 supportive of Chevron deference. You know, he gave a speech 206 00:10:46.399 --> 00:10:48.200 or wrote a Larvay article where he said, like, in 207 00:10:48.240 --> 00:10:51.600 most of these agency cases, it's close enough, and he's 208 00:10:51.759 --> 00:10:54.080 you know, Judge Silber was a great judge and very 209 00:10:54.080 --> 00:10:56.399 devoted to the language of statued but he said, these 210 00:10:56.440 --> 00:10:59.440 cases are so hard that we're basically in step two world, 211 00:10:59.639 --> 00:11:02.240 you know, all the time. And then you had Judge Cathledge, 212 00:11:02.279 --> 00:11:04.240 who had I think, given a speech saying he had 213 00:11:04.279 --> 00:11:07.799 never found a statute of ambiguous ambiguous to get to 214 00:11:07.799 --> 00:11:10.399 step two. And so there were these just different approaches 215 00:11:10.440 --> 00:11:13.720 and maybe they sort of reflect evolution in the thinking 216 00:11:13.799 --> 00:11:18.000 even of otherwise you know, Durst prudentially similar or judges 217 00:11:18.399 --> 00:11:20.679 in how they were approaching these these interpretive questions. 218 00:11:20.759 --> 00:11:23.600 Yeah. So one other kind of surprise question is like, 219 00:11:24.080 --> 00:11:26.320 was there anything in the opinion itself that surprised you 220 00:11:26.440 --> 00:11:27.600 coming out of or argument? 221 00:11:28.600 --> 00:11:31.919 Uh, you know, not really. I mean it was obviously 222 00:11:32.000 --> 00:11:33.480 we didn't know if we were going to win the case, 223 00:11:35.039 --> 00:11:38.879 so I was, you know, hitting refresh quite frequently, and 224 00:11:39.279 --> 00:11:41.200 in the last few weeks of June as opinions for 225 00:11:41.320 --> 00:11:43.960 coming out, and so I never I tried not to 226 00:11:44.240 --> 00:11:46.840 ever count chickens before they hatch. But you know, we 227 00:11:47.200 --> 00:11:50.440 thought we were hopeful. We were cautiously optimistic in terms 228 00:11:50.480 --> 00:11:53.799 of the rational though. I thought they were gonna do 229 00:11:53.840 --> 00:11:56.080 something relatively similar to what we did. You know, we 230 00:11:56.120 --> 00:11:59.480 had made a broad constitutional argument. We had also made 231 00:11:59.480 --> 00:12:03.200 an APA argument, and it seemed like the you know, 232 00:12:03.200 --> 00:12:06.360 the court resolved it formally on APA grounds, but I 233 00:12:06.399 --> 00:12:09.480 think informed by a lot of the arguments we had 234 00:12:09.519 --> 00:12:13.039 made about the constitutional separation of powers, the role of judges, 235 00:12:13.120 --> 00:12:14.759 et cetera. And I think it was sort of a 236 00:12:14.919 --> 00:12:17.840 unification of our two arguments there. And then I did 237 00:12:17.919 --> 00:12:19.799 think that there were some of these hard issues that 238 00:12:19.879 --> 00:12:21.480 the Court was going to be able to punt on,

239 00:12:22.320 --> 00:12:23.639 and some of the ones that I laid out at 240 00:12:23.679 --> 00:12:26.360 the beginning where I thought, these are tricky. They're going 241 00:12:26.440 --> 00:12:28.279 to want to say something, but they're not going to 242 00:12:28.440 --> 00:12:30.960 fully resolve, you know, exactly. You know, they're not going 243 00:12:31.000 --> 00:12:32.840 to give an operating manual for the lower courts on 244 00:12:32.879 --> 00:12:35.600 how to apply this decision going forward. And then so 245 00:12:35.639 --> 00:12:38.480 my takeaway was this was going to be an important decision. 246 00:12:38.600 --> 00:12:42.240 If we won, it was going to be one that 247 00:12:42.279 --> 00:12:48.120 maybe you know, doctrinally significant shift, but also important in 248 00:12:48.240 --> 00:12:50.759 just sending continuing to send signals that the court to 249 00:12:50.879 --> 00:12:53.320 send over the last decade, like sort of a vibe 250 00:12:53.360 --> 00:12:55.519 shift in the courts that courts need to be skeptical 251 00:12:55.559 --> 00:12:58.519 of agency action in the sense that, you know, be 252 00:12:58.600 --> 00:13:00.759 aware that agencies are going to push the envelope and 253 00:13:00.840 --> 00:13:03.639 be willing to say no inappropriate cases. And this was 254 00:13:03.679 --> 00:13:06.720 going to be maybe the culmination or the biggest one 255 00:13:06.720 --> 00:13:08.480 of the cases thus far in that line. 256 00:13:08.759 --> 00:13:10.960 Yeah, and that kind of like nicely sets up what 257 00:13:10.960 --> 00:13:12.799 I want to talk about briefly. Then we're gonna jump 258 00:13:12.799 --> 00:13:16.480 through those four questions. But so right after the decision 259 00:13:16.519 --> 00:13:19.759 came down, law professors of course hit their favorite you 260 00:13:19.799 --> 00:13:22.799 know blogs and you know, the Atlantic and some I 261 00:13:22.840 --> 00:13:25.000 think one said it's the end of the administrative state. 262 00:13:26.240 --> 00:13:30.519 Several said nothing's changed at all, which I loved. And 263 00:13:30.559 --> 00:13:32.919 then there's a course us in the middle or say no, 264 00:13:33.000 --> 00:13:35.080 it's gonna you know, you know, yeah, but there's just 265 00:13:35.120 --> 00:13:36.799 a lot of uncertainty. And we've had a couple of 266 00:13:36.879 --> 00:13:39.919 years now and like, is was this the big change? 267 00:13:39.960 --> 00:13:42.799 And I'll throw this to Megan, like what have we seen? 268 00:13:42.919 --> 00:13:45.240 Like is this was this a revolution? Or is it 269 00:13:45.440 --> 00:13:47.840 you know, not not quite as exciting as some folks 270 00:13:47.879 --> 00:13:48.480 were expected. 271 00:13:48.600 --> 00:13:50.960 I mean, I think the journey is still out, partly 272 00:13:51.000 --> 00:13:55.559 because this administration hasn't leaned into deregulatory stuff quite as 273 00:13:55.639 --> 00:13:58.360 much as maybe they could, and it would generate some 274 00:13:58.440 --> 00:14:01.799 of the resolution of the question that Rahman identified, right, Like, 275 00:14:01.840 --> 00:14:04.519 you can see the lower courts are struggling with a 276 00:14:04.559 --> 00:14:07.279 lot of these questions like what do you do? But 277 00:14:07.480 --> 00:14:11.759 I haven't seen the revolution, right, Like the regulatory stuff 278 00:14:11.759 --> 00:14:13.639 we do, Like I come at this from you know, 279 00:14:13.679 --> 00:14:16.480 someone practicing before the agencies a lot, and then my 280 00:14:16.519 --> 00:14:20.200 partners will litigate, but it's it's informing how we're doing 281 00:14:20.559 --> 00:14:24.919 the advocacy. It's certainly a dance that has shifted, right, Like, 282 00:14:25.080 --> 00:14:28.200 I think the terms of discussion have changed a little bit, 283 00:14:28.519 --> 00:14:30.919 but I haven't seen revolution yet. 284 00:14:31.639 --> 00:14:33.200 I don't know if that answers your question. 285 00:14:32.960 --> 00:14:36.159 But I feel like there is a kind it's like 286 00:14:36.159 --> 00:14:37.799 a knife fight going on in some of the courts 287 00:14:37.799 --> 00:14:41.559 of appeals over these four issues, and then the administrative 288 00:14:41.559 --> 00:14:44.000 state is kind of floating above it, and I think 289 00:14:44.000 --> 00:14:46.480 some of us are just kind of waiting to say, okay, 290 00:14:46.639 --> 00:14:48.759 like take the next big step and tee up some 291 00:14:48.840 --> 00:14:50.200 of these issues. 292 00:14:50.360 --> 00:14:52.919 Yeah, I'm kind of curious is are we aware of 293 00:14:52.960 --> 00:14:56.879 any cases that would not have been brought under Chevron 294 00:14:56.919 --> 00:14:58.279 that have been brought under lper Bright? 295 00:15:01.320 --> 00:15:05.080 You mean in terms of plaintiffs deciding to I think 296 00:15:05.120 --> 00:15:06.679 it's hard to tell. And that's one of the things 297 00:15:06.679 --> 00:15:09.480 that engaging the impact of the decision is is difficult 298 00:15:09.519 --> 00:15:12.240 because you know, this is not just one data point. 299 00:15:12.240 --> 00:15:14.080 This is part of a trend that has been building. 300 00:15:14.360 --> 00:15:17.440 You know, if you look long term, a trend towards textualism, 301 00:15:17.440 --> 00:15:20.559 towards greater skepticism, towards agencies. Even in the short term, 302 00:15:20.559 --> 00:15:22.559 the doctrinal shifts that the Court had been making on 303 00:15:22.679 --> 00:15:25.559 a bunch of different doctrines had been pushing back, and 304 00:15:25.639 --> 00:15:28.240 so you know, if Chevron were still on the books, 305 00:15:28.279 --> 00:15:29.960 I think a lot of the decisions might be coming 306 00:15:29.960 --> 00:15:32.639 out the same way, because judges would be deciding them 307 00:15:32.679 --> 00:15:35.240 at step one, you know, most of the time, instead 308 00:15:35.240 --> 00:15:37.039 of just some of the time. And now

they're doing that, 309 00:15:37.159 --> 00:15:39.919 at least in theory, all the time, so it's hard 310 00:15:39.919 --> 00:15:43.039 to kind of pinpoint. I do think though, that that 311 00:15:43.360 --> 00:15:46.240 with clients that I've been talking to, I think they 312 00:15:46.240 --> 00:15:48.480 are more willing to think a little bit big picture. 313 00:15:48.600 --> 00:15:52.440 They're a little bit less reticent in challenging the agencies 314 00:15:52.440 --> 00:15:53.799 because I think they think that they're going to get 315 00:15:53.840 --> 00:15:56.159 a fair shot, a fair shake in front of judges. 316 00:15:56.919 --> 00:15:58.720 But I don't know that I can pinpoint a specific 317 00:15:58.759 --> 00:16:00.679 case in one thing. 318 00:16:00.720 --> 00:16:04.840 I think there has been some different choices on defense side. 319 00:16:05.159 --> 00:16:07.279 I think, and Marie, I think you are familiar with 320 00:16:07.320 --> 00:16:10.360 the TCPA cases, there has been I think a willingness 321 00:16:10.399 --> 00:16:14.559 to make arguments that previously had been foreclosed that now 322 00:16:15.240 --> 00:16:17.639 seem like you can take a shot, right, is a 323 00:16:17.840 --> 00:16:19.360 is a text message or telephone call. 324 00:16:19.480 --> 00:16:21.759 No it's not, it's the statue says nothing like that. 325 00:16:22.000 --> 00:16:23.879 But you couldn't have done that in the past because 326 00:16:23.919 --> 00:16:26.240 you had, you know, an agency interpretation that would have 327 00:16:26.279 --> 00:16:28.559 been afforded difference. So I think there are still people 328 00:16:28.600 --> 00:16:30.679 are moving and shifting a little bit. That sort of 329 00:16:30.679 --> 00:16:34.480 openness Roman mentioned about people make arguments that maybe, you know, 330 00:16:34.519 --> 00:16:36.399 five years ago, they wouldn't have wasted the time to 331 00:16:36.440 --> 00:16:37.120 make the argument. 332 00:16:37.559 --> 00:16:39.360 Yeah, I mean that's been my impression as well. Like 333 00:16:39.399 --> 00:16:41.440 I can't think of any case that's been brought that 334 00:16:41.799 --> 00:16:44.360 like wouldn't have been brought before, but how it's been 335 00:16:44.559 --> 00:16:47.679 litigated is different. Although I will say any law professors 336 00:16:48.200 --> 00:16:51.039 in the room or watching this later, like, these internal 337 00:16:51.080 --> 00:16:53.200 studies are really hard to do. I mean, you shouldn't 338 00:16:53.240 --> 00:16:54.919 just come in and do compare it after and before, 339 00:16:54.919 --> 00:16:58.480 because agencies act differently, litigants act different different cases are brought. 340 00:16:58.519 --> 00:17:00.679 You know, it's going to be really be, really hard 341 00:17:00.679 --> 00:17:02.679 to tease out the impact on top of the fact 342 00:17:02.679 --> 00:17:05.519 that we're not saying like Chevron have been dying for 343 00:17:05.559 --> 00:17:07.440 ten years, and so it's hard to kind of figure 344 00:17:07.559 --> 00:17:11.759 where that goes from there in the opinion itself, at 345 00:17:11.839 --> 00:17:14.240 least on the law professor front, we all got excited 346 00:17:14.240 --> 00:17:19.039 with footnotes five and six. In other words, there's two 347 00:17:19.079 --> 00:17:22.000 paragraphs in the opinion where it says our chief esses 348 00:17:22.079 --> 00:17:23.759 Robert says, for the court, well, of course. 349 00:17:23.559 --> 00:17:24.200 Got my pocket? 350 00:17:24.759 --> 00:17:25.799 You got it? 351 00:17:31.359 --> 00:17:33.960 Oh my, this's awesome. Well no, and the court the 352 00:17:34.039 --> 00:17:37.079 Chiefess Robberts, says, well, of course. Sometimes the best interpretation 353 00:17:37.119 --> 00:17:40.279 of the statute is that Congress has delegated policy making 354 00:17:40.319 --> 00:17:43.519 discretion to the agency. And they give a few examples. 355 00:17:43.559 --> 00:17:45.759 And that's kind of Roman's first one of the categories. 356 00:17:45.759 --> 00:17:47.920 And I want to I'll start with Marian this like 357 00:17:48.440 --> 00:17:51.519 there's this whole delegation question now, and courts are actually 358 00:17:52.480 --> 00:17:54.599 asking for someone briefing on this stuff, like how do 359 00:17:54.680 --> 00:17:57.599 we figure out when it's the best interpretations that we've delegated, 360 00:17:57.640 --> 00:17:59.359 so kind of get a sense of what are we 361 00:17:59.359 --> 00:18:01.440 seeing on the ground when it comes to footnotes five 362 00:18:01.480 --> 00:18:03.000 and six. And that's not how you all frame it. 363 00:18:03.039 --> 00:18:08.359 But you know, if footnote forward carely products. 364 00:18:08.160 --> 00:18:11.039 TCPA case, oh wow, that's not for. 365 00:18:11.039 --> 00:18:13.720 US administered law folks, you know, go by the footnotes. 366 00:18:14.160 --> 00:18:17.000 So what how are courts dealing with that with this 367 00:18:17.119 --> 00:18:18.000 delegation question. 368 00:18:18.160 --> 00:18:20.279 Yeah, so let me just step back and explain exactly 369 00:18:20.279 --> 00:18:22.960 what the Supreme Court said about delegation in those paragraphs, 370 00:18:23.000 --> 00:18:25.599 because I think it'll help frame everything. So, of course, 371 00:18:25.680 --> 00:18:27.799 the court said, you know, when it comes to deciding 372 00:18:27.799 --> 00:18:29.519 what the law means, federal. 373 00:18:29.200 --> 00:18:30.720 Courts decide that full stop. 374 00:18:30.759 --> 00:18:34.759 But it also recognized, as Chris mentioned, that sometimes Congress 375 00:18:34.799 --> 00:18:37.880 does choose to get policy making discretion to an agency, 376 00:18:38.279 --> 00:18:41.240 and that might happen right where Congress expressly tells an 377 00:18:41.240 --> 00:18:44.960 agency to define a particular term or authorizes it to 378 00:18:45.000 --> 00:18:47.920 fill in the details of a statutory scheme, or to 379

00:18:48.000 --> 00:18:51.559 regulate up to certain flexible standards like appropriate or reasonable, 380 00:18:52.000 --> 00:18:54.319 and according to the court, when the best reading of 381 00:18:54.359 --> 00:18:57.000 the statute is that Congress has delegated that kind of 382 00:18:57.039 --> 00:19:01.319 policy making discretion, the role of reviewing is going to change. 383 00:19:01.359 --> 00:19:03.160 So they're going to be looking at things like is 384 00:19:03.200 --> 00:19:07.720 this delegation constitutional, what are the outer boundaries of this delegation, 385 00:19:08.039 --> 00:19:11.839 and is the agency sort of exercising reason decision making 386 00:19:11.960 --> 00:19:15.559 within those bounds. So after lope 're bright, the central 387 00:19:15.640 --> 00:19:19.480 question administrative law cases shifts, right. It's no longer is 388 00:19:19.519 --> 00:19:23.160 this statute ambiguous, it's does this statute delegate policy making 389 00:19:23.240 --> 00:19:24.440 discretion to the agency? 390 00:19:24.839 --> 00:19:27.599 And if so, the discretion to do what? 391 00:19:28.279 --> 00:19:29.000 And although that. 392 00:19:28.960 --> 00:19:31.240 Might seem like a settle shift, I actually do think 393 00:19:31.240 --> 00:19:32.880 that this is where a lot of the action is 394 00:19:32.920 --> 00:19:35.759 going to be over the next several years, because with 395 00:19:35.880 --> 00:19:40.200 Chevron gone, delegation just becomes a substitute terrain where agencies 396 00:19:40.240 --> 00:19:42.119 are going to try to make up a lot of 397 00:19:42.160 --> 00:19:44.920 the ground that they had lost. And of course we 398 00:19:44.960 --> 00:19:48.359 are seeing agencies lean into this already. They're making the 399 00:19:48.480 --> 00:19:51.039 argument that, yeah, the best reading of the statute is 400 00:19:51.039 --> 00:19:53.640 that we get to decide what this term means, we 401 00:19:53.680 --> 00:19:55.720 get to fill in this detail, we get to determine 402 00:19:55.720 --> 00:19:58.200 what kind of law is or what kind of regulation 403 00:19:58.359 --> 00:19:59.279 we reasonable. 404 00:19:58.960 --> 00:20:01.559 Appropriate in these circumstances. 405 00:20:01.640 --> 00:20:05.960 The IRS, DOL FCC all sort of using this playbook already, 406 00:20:06.240 --> 00:20:08.559 and I think that we can expect it anytime that 407 00:20:08.599 --> 00:20:12.359 the relevant statute uses sort of open ended, flexible language 408 00:20:12.680 --> 00:20:15.839 or is really complicated and needs some implementation from the 409 00:20:15.839 --> 00:20:19.680 agency and from the agency perspective. To be fair to them, 410 00:20:19.799 --> 00:20:22.240 that move makes total sense because if you can frame 411 00:20:22.279 --> 00:20:25.400 the statute as a delegation, sort of put yourself back 412 00:20:25.400 --> 00:20:27.920 in that familiar territory that you're used to being in 413 00:20:28.160 --> 00:20:31.440 where you're talking about line drawing and policy judgments and 414 00:20:31.480 --> 00:20:35.400 reasonableness review. And it also sort of gives them back 415 00:20:35.440 --> 00:20:37.920 some of the flexibility that we all thought that they 416 00:20:38.000 --> 00:20:41.079 might lose after Lowe or Bright to sort of adjust. 417 00:20:40.720 --> 00:20:42.559 Their regulatory approach over time. 418 00:20:43.039 --> 00:20:45.720 Because if you can convince a judge that it doesn't 419 00:20:46.119 --> 00:20:48.000 they don't need to decide the single best meaning of 420 00:20:48.039 --> 00:20:50.559 the statute, but they can just decide that the agency 421 00:20:50.599 --> 00:20:54.160 has discretion. That really opens the door for agencies to 422 00:20:54.240 --> 00:20:57.400 change how they're exercising that discretion over time, which is 423 00:20:57.480 --> 00:21:00.519 exactly what they had been doing under the chevrun regime. 424 00:21:01.039 --> 00:21:02.880 So of course that leads to the question of, like, 425 00:21:02.920 --> 00:21:05.319 what are courts doing with this so far? And I 426 00:21:05.359 --> 00:21:07.680 think the results are really mixed, which is, I guess 427 00:21:07.680 --> 00:21:09.640 what we would expect at this early stage. 428 00:21:10.160 --> 00:21:11.400 Some courts have been. 429 00:21:11.440 --> 00:21:14.559 Really receptive to delegation arguments, and I think you're seeing 430 00:21:14.559 --> 00:21:18.240 that most where you know, the statute they're confronting has 431 00:21:18.359 --> 00:21:22.359 sort of open ended, flexible language, and the agency's choice 432 00:21:22.720 --> 00:21:26.200 looks a lot like your classic policy line drawing kind 433 00:21:26.240 --> 00:21:29.599 of decision as opposed to an agency attempting to sort 434 00:21:29.599 --> 00:21:32.160 of redefine what the law means or how it applies. 435 00:21:32.599 --> 00:21:35.119 But some judges are starting to push back, and I 436 00:21:35.119 --> 00:21:38.319 think we're seeing that most when agencies are relying on 437 00:21:38.440 --> 00:21:41.960 general rule making provisions to try to justify like a 438 00:21:42.039 --> 00:21:45.880 new additional substantive requirement. And that line is going to 439 00:21:45.880 --> 00:21:50.960 be pretty important going forward because many many statutes right 440 00:21:51.039 --> 00:21:53.519 have these sort of general rule making provisions that say 441 00:21:53.559 --> 00:21:58.240 things like the Secretary may issue regulations that are necessary 442 00:21:58.319 --> 00:22:01.359 or appropriate to carrying out this act or the subsection. 443 00:22:02.720 --> 00:22:05.880 Those provisions are usually nowhere near the sort of meat 444 00:22:05.960 --> 00:22:09.400 of the statute. They don't identify any particular term to 445 00:22:09.440 --> 00:22:12.319 define or any regulatory problem to solve. They just authorize 446 00:22:12.400 --> 00:22:15.400 rulemaking in general. And so our view, of course is

447 00:22:15.440 --> 00:22:18.240 like that certainly can't be enough to find a delegation 448 00:22:18.279 --> 00:22:21.079 of policy making discretion or authority, because if it is, 449 00:22:21.359 --> 00:22:23.920 we're sort of right back in the Chevron world, just 450 00:22:24.039 --> 00:22:27.079 under a different name. So the Chamber has already filed 451 00:22:27.119 --> 00:22:29.519 seven am a Kiss Briefs seven I think yet on 452 00:22:29.640 --> 00:22:32.599 this issue, laying out how we think the Court should 453 00:22:32.799 --> 00:22:35.839 Lower Court should untangle those few paragraphs in the lower 454 00:22:35.920 --> 00:22:38.279 Right decision. And one of the big points that we 455 00:22:38.400 --> 00:22:43.559 keep making is that general rulemaking provisions standing alone should 456 00:22:43.559 --> 00:22:47.079 not be read to delegate broad policy making authority. They 457 00:22:47.160 --> 00:22:49.519 might give an agency the ability to sort of fill 458 00:22:49.519 --> 00:22:53.400 in minor implementation details of a statutory scheme, but if 459 00:22:53.440 --> 00:22:55.960 the agency wants to do something more than that, like 460 00:22:56.000 --> 00:22:58.480 give meaning to the statute or decide that it should 461 00:22:58.480 --> 00:23:01.680 apply differently in a certain set of circumstances, it's going 462 00:23:01.720 --> 00:23:05.039 to have to point to something much more specific, some 463 00:23:05.240 --> 00:23:07.960 kind of statutory hook, to show that Congress meant to 464 00:23:08.000 --> 00:23:10.759 give it that kind of discretion. So I think the 465 00:23:10.880 --> 00:23:14.279 key takeaways from these paragraphs for litigators is, you know, 466 00:23:14.319 --> 00:23:17.559 I mentioned the central question has shifted from ambiguity to 467 00:23:17.640 --> 00:23:21.720 policy making discretion. When you're thinking about challenging an agency 468 00:23:21.720 --> 00:23:25.079 action or defending against an enforcement action, of course you 469 00:23:25.200 --> 00:23:27.960 want to think really hard about what the best single 470 00:23:28.039 --> 00:23:29.759 meaning of the statutory language is. 471 00:23:30.160 --> 00:23:30.720 But I think you. 472 00:23:30.680 --> 00:23:33.000 Also want to take a holistic approach to looking at 473 00:23:33.039 --> 00:23:36.480 the statue and try to identify what provisions the agency 474 00:23:36.519 --> 00:23:38.519 is going to point to to try to show the 475 00:23:38.559 --> 00:23:42.119 court that actually congrescated the policy making discretion to decide 476 00:23:42.160 --> 00:23:44.599 that question. And I also think that we all need 477 00:23:44.640 --> 00:23:46.519 to sort of hold the line on this general rule 478 00:23:46.559 --> 00:23:50.720 making point because if we lose on that, we're in trouble. 479 00:23:51.559 --> 00:23:54.240 So we need to be urging courts to reject agency 480 00:23:54.319 --> 00:23:58.480 arguments that general rule making provisions give broad authority that 481 00:23:58.519 --> 00:24:00.720 the courts can just sort of step back, can do 482 00:24:00.839 --> 00:24:04.319 these kinds of constitutional checks and boundary checks on. 483 00:24:04.880 --> 00:24:05.880 For Hill staffers. 484 00:24:05.960 --> 00:24:08.960 I think a big takeaway from these paragraphs is like 485 00:24:09.000 --> 00:24:11.599 you should not read lope or Bright to mean that 486 00:24:11.680 --> 00:24:14.839 courts are never going to give deference to or see 487 00:24:14.839 --> 00:24:17.440 policy making discretion room for agencies. 488 00:24:17.960 --> 00:24:19.240 You know the Court included them. 489 00:24:19.920 --> 00:24:22.519 Agencies are understandably going to grab hold, and I think 490 00:24:22.640 --> 00:24:24.680 a lot of lower courts are going to follow those 491 00:24:24.720 --> 00:24:26.519 agencies down that analytical path. 492 00:24:26.920 --> 00:24:29.039 So drafting actually matters more than ever. 493 00:24:29.160 --> 00:24:29.400 Now. 494 00:24:30.319 --> 00:24:31.920 If you want the agency to have. 495 00:24:31.839 --> 00:24:34.480 Some discretion, you should say that in the statute. And 496 00:24:34.519 --> 00:24:36.720 if you don't want the agency to have discretion, you 497 00:24:36.759 --> 00:24:40.279 should be really clear about that so that you know, five, ten, 498 00:24:40.400 --> 00:24:42.799 fifteen years down the road, you're not watching a court 499 00:24:43.079 --> 00:24:45.200 you know, give the agency a lot of leeway to 500 00:24:45.240 --> 00:24:47.599 apply the statute in a way you never expected. 501 00:24:48.200 --> 00:24:50.119 Other folks want to jump it on that or I mean, 502 00:24:50.160 --> 00:24:52.559 I think that last point is really really important. And 503 00:24:52.599 --> 00:24:54.680 I have seen, you know, in discussions with folks on 504 00:24:54.680 --> 00:24:57.759 the Hill when they're trying to craft legislation, like depending 505 00:24:57.759 --> 00:24:59.880 on who's doing the drafting, if it's not coming from 506 00:25:00.680 --> 00:25:04.799 a committee that has frequently overseen regulatory work, I have 507 00:25:04.880 --> 00:25:10.519 seen like sloppy, unintentional drafting that you you know it's 508 00:25:10.559 --> 00:25:12.200 going to be abused in the future, and they think 509 00:25:12.240 --> 00:25:15.039 it means it speaks in the terms of limitation, but 510 00:25:15.079 --> 00:25:17.640 it doesn't. So I think it's a super important practical, 511 00:25:17.680 --> 00:25:18.480 practical point. 512 00:25:19.039 --> 00:25:22.200 Yeah, And if you're in Congress, like if you really 513 00:25:22.240 --> 00:25:24.759 want to make sure they have the agency has you say, 514 00:25:24.799 --> 00:25:26.960 the agency shall define those terms, right. I mean, that's 515 00:25:27.359 --> 00:25:29.799 that's the kind of key magic language to make sure 516 00:25:29.839 --> 00:25:33.400 that it's there. It's interesting you would

think agencies aren't 517 00:25:33.440 --> 00:25:36.839 doing this in the Trump administration like they are. I mean, 518 00:25:37.400 --> 00:25:40.119 the I r. S is really aggressive right now on 519 00:25:40.519 --> 00:25:44.480 pushing the general rulemaking argument. And you're seeing some other 520 00:25:44.519 --> 00:25:46.160 agents but not like EP. I mean a lot of 521 00:25:46.160 --> 00:25:48.519 them are just the classic kind of move of the 522 00:25:48.559 --> 00:25:51.200 statutes clear and we're done, right. But you are seeing 523 00:25:51.240 --> 00:25:53.599 it in some especially with some of these older statutes 524 00:25:53.640 --> 00:25:56.720 that that that IRS has been interpreted very liberally for 525 00:25:56.759 --> 00:25:58.279 a long time. You're kind of seeing that kind of 526 00:25:58.279 --> 00:26:00.960 crack down. We'll give one exit ample of that local 527 00:26:01.000 --> 00:26:03.200 bride itself, or better said relentless, which I wish would 528 00:26:03.200 --> 00:26:04.839 have been called relentless. I don't know, you did a 529 00:26:04.880 --> 00:26:05.480 poor job there. 530 00:26:05.759 --> 00:26:07.720 If we had lost that, it would have become relentless 531 00:26:07.720 --> 00:26:09.160 difference worse. 532 00:26:09.880 --> 00:26:12.720 Fair enough, fair enough, But like so, in the relentless 533 00:26:12.720 --> 00:26:17.039 case itself, the agency actually came back and said, fill 534 00:26:17.119 --> 00:26:19.440 up the details. We're flowing of the details. We can 535 00:26:19.519 --> 00:26:22.640 require this these fishing boats to pay for the monitors. 536 00:26:23.279 --> 00:26:25.759 Uh and I kind of found that kind of crazy, 537 00:26:25.799 --> 00:26:31.400 you know, you know, and eventually I think they stayed it, right, Yeah, yeah, yeah, 538 00:26:31.599 --> 00:26:32.960 but it was But if you want to see and 539 00:26:33.200 --> 00:26:35.920 the disrectord bought it. The district said absolutely or we 540 00:26:36.039 --> 00:26:39.200 regulate against this backdrop norm that if the compliance costs 541 00:26:39.200 --> 00:26:40.720 are born by the you know, by the by the 542 00:26:40.759 --> 00:26:43.240 by the regulated and and so it's really interesting to 543 00:26:43.279 --> 00:26:45.000 see that move. So if you want to kind of 544 00:26:45.039 --> 00:26:48.440 see one example of kind of a pretty aggressive rate 545 00:26:48.519 --> 00:26:52.039 of that implied delegation argument, that's that's a pretty good one. 546 00:26:52.640 --> 00:26:55.400 Yeah, just on that, on that general topic, I mean, 547 00:26:55.440 --> 00:26:57.119 I think I agree with everything that's been said. I 548 00:26:57.160 --> 00:26:59.440 think we're just laid it out really nicely on how 549 00:26:59.480 --> 00:27:01.720 to push back. You know, one thing that's important, I 550 00:27:01.720 --> 00:27:05.119 think theoretically, as people are pushing back in briefs is 551 00:27:06.119 --> 00:27:09.400 and as judges are deciding these issues, I think the court, 552 00:27:09.480 --> 00:27:12.799 the Supreme Court is thinking about a distinction between interpretive 553 00:27:12.839 --> 00:27:15.880 authority and policy making authority or interpretive authority and like 554 00:27:16.000 --> 00:27:19.720 legislative authority. And some of the decisions that we've seen 555 00:27:20.519 --> 00:27:24.440 that have been looking at explicit delegations seem to think 556 00:27:24.480 --> 00:27:27.799 that you can still delegate interpret of authority, and they're 557 00:27:27.839 --> 00:27:32.480 talking about the agency's power to definitively interpret, and I 558 00:27:32.519 --> 00:27:36.960 just think that's like squarely contradicted by Lowberbright. I think. So, 559 00:27:37.079 --> 00:27:40.039 I think for people who are thinking about this, conceptual 560 00:27:40.039 --> 00:27:42.599 clarity is really important and the only other pin I know. 561 00:27:42.640 --> 00:27:45.440 I'm a practitioner, which is why I'm here, not an academic, 562 00:27:45.519 --> 00:27:48.440 but I would just encourage, if for people who want 563 00:27:48.440 --> 00:27:50.759 to go deep, whether it's a judge or a litigant 564 00:27:51.480 --> 00:27:54.839 on this issue. Jeff Pognaski has a has an article 565 00:27:55.400 --> 00:27:59.160 from before Lower Bright. I think it's called Neoclassical administrative law, 566 00:27:59.640 --> 00:28:02.359 and he I think put his finger on sort of 567 00:28:02.359 --> 00:28:05.880 the distinction between these types of authority and delegated authority 568 00:28:05.880 --> 00:28:07.319 that I think is what the court was trying to 569 00:28:07.319 --> 00:28:08.839 pick up on. And so I think that is a 570 00:28:08.839 --> 00:28:11.240 helpful resource, along with a lot of the other great 571 00:28:11.240 --> 00:28:13.559 academic work that's out there in terort of how to 572 00:28:13.720 --> 00:28:18.920 translate these paragraphs in Lowberbright into a workable doctrine going forward. 573 00:28:19.119 --> 00:28:22.160 Yeah, I'll just flagged there again maybe more an academic point, 574 00:28:22.240 --> 00:28:25.000 but there was another way they could have framed this 575 00:28:25.160 --> 00:28:27.799 that they didn't, which was to consider this mixed questions 576 00:28:27.799 --> 00:28:30.680 of law. In fact, that paragraph could have been read 577 00:28:30.680 --> 00:28:33.839 more as in other words, the legal question what does 578 00:28:34.359 --> 00:28:37.200 an employee? What is the definition of employee in a statue? 579 00:28:37.240 --> 00:28:40.400 That's something that the court has to decide. But whether 580 00:28:40.440 --> 00:28:43.000 a taxicab driver is an employee or not is a 581 00:28:43.039 --> 00:28:45.839 mixed question of law in fact, where the agency should 582 00:28:45.839 --> 00:28:48.960 have deference and kegan into the set I means like, 583 00:28:49.079 --> 00:28:51.319 this is what we should be doing, and

I don't 584 00:28:51.359 --> 00:28:53.960 read the paragraph those two paragraphs of opening the door 585 00:28:54.000 --> 00:28:55.039 for that sort of move. 586 00:28:55.359 --> 00:28:57.480 I think what they want to let agencies do, at 587 00:28:57.559 --> 00:29:01.400 least leaving aside the non delegation the problem. I think 588 00:29:01.400 --> 00:29:03.160 what they want to let agencies do is actually make 589 00:29:03.160 --> 00:29:05.440 a policy call in some instances. You know, if the 590 00:29:05.440 --> 00:29:09.880 statute says the agency, shall, you know, choose either a 591 00:29:09.920 --> 00:29:12.039 seventy five mile power speed limit or an eighty mile 592 00:29:12.079 --> 00:29:14.359 power speed limit, that's like a pretty clear delegation of 593 00:29:14.359 --> 00:29:17.319 a policy making choice. Has nothing to do with interpreting anything. 594 00:29:17.359 --> 00:29:19.519 It's just about like what's better. And so I think 595 00:29:19.599 --> 00:29:23.519 that's the kind of policy choice that they think is allowed, 596 00:29:24.000 --> 00:29:26.920 at least leaving aside non delegation issues, and is subject 597 00:29:26.960 --> 00:29:28.880 to arbitrary precious review. 598 00:29:29.240 --> 00:29:32.599 Yeah, I mean it is interesting though, like what policy 599 00:29:32.680 --> 00:29:34.440 versus mikes question one fact? I mean, they're kind of 600 00:29:34.480 --> 00:29:36.480 different ways of thinking about the same thing. I was thinking. 601 00:29:36.519 --> 00:29:39.359 There's a Federal circuit case less Go that came out 602 00:29:39.359 --> 00:29:41.400 afterwards where the court actually asked for someone of briefing 603 00:29:41.519 --> 00:29:44.400 saying is general real making authority enough? And fortunately the 604 00:29:44.400 --> 00:29:48.400 court said no, but they still actually defer to the agency. 605 00:29:48.440 --> 00:29:51.920 And that case was like federal worker over time and 606 00:29:51.960 --> 00:29:55.680 it said you get over time if it's officially authorized. 607 00:29:55.799 --> 00:29:58.759 Is the language in the statue? And the question was 608 00:29:58.839 --> 00:30:02.920 is officially author require it in writing or not? And 609 00:30:02.960 --> 00:30:05.799 the court ended up saying that's a fill up the details. 610 00:30:05.880 --> 00:30:07.440 You know, we're going to leave that to the agency. 611 00:30:07.839 --> 00:30:09.440 You could also imagine that as a mixed question of 612 00:30:09.440 --> 00:30:11.680 one fact. I mean, so it is interesting. I'll be 613 00:30:11.720 --> 00:30:14.240 curious to see if you see more. Matthew Stevenson's got 614 00:30:14.200 --> 00:30:16.759 a Professor Harved's got a great article on this mixed 615 00:30:16.799 --> 00:30:19.480 question of one fact issue that would be worth ninety 616 00:30:19.559 --> 00:30:23.119 nine pages of reading along this line. All right, so 617 00:30:23.160 --> 00:30:25.960 let's get to the next fun topic, which is starry 618 00:30:26.000 --> 00:30:29.160 decisis I think one of the big worries before the 619 00:30:29.200 --> 00:30:32.559 decision was, as Raman put it, we have thousands and 620 00:30:32.599 --> 00:30:35.359 thousands of decisions probably one hundreds and hundreds at least 621 00:30:35.359 --> 00:30:39.200 where the agency only one because of deference? Are all 622 00:30:39.240 --> 00:30:42.599 these going to become undone? And you know, because this 623 00:30:42.759 --> 00:30:44.480 is wrong, I kind of Megan, I'll kind of throw 624 00:30:44.480 --> 00:30:46.440 this to you, like what have we seen on that front? 625 00:30:46.680 --> 00:30:49.319 So I think it's important to and just like Maria did, 626 00:30:49.359 --> 00:30:53.039 to understand the words the Supreme Court used, right, they've 627 00:30:53.079 --> 00:30:56.039 got this paragraph right before the conclusion, and I think 628 00:30:56.079 --> 00:30:58.559 they were responding to and Raman can address like the 629 00:30:58.920 --> 00:31:01.440 Q and A at argument, But there's a lot of commentary, Oh, 630 00:31:01.519 --> 00:31:02.359 this guy's going to fall. 631 00:31:02.400 --> 00:31:03.119 This is terrible. 632 00:31:03.200 --> 00:31:06.680 All this forty years of ADMIN law, all these agency 633 00:31:06.680 --> 00:31:09.000 things are going to be lost and go away. So 634 00:31:09.000 --> 00:31:11.839 they have this paragraph that is I think fairly unscrutable 635 00:31:11.920 --> 00:31:14.039 once once you start to dig into it, you can 636 00:31:14.079 --> 00:31:17.599 really sort of get down in the weeds. And it says, 637 00:31:18.359 --> 00:31:21.599 by overalling Chevron, we do not call into question prior 638 00:31:21.720 --> 00:31:25.359 cases that relied on the Chevron framework. The holdings of 639 00:31:25.400 --> 00:31:29.279 those cases that specific agency actions are lawful dot dot 640 00:31:29.279 --> 00:31:32.839 dot are still subject to statutory starry decisis, and that 641 00:31:33.000 --> 00:31:37.920 paragraph has created some real dispute between the lower courts on. 642 00:31:37.960 --> 00:31:39.279 A few topics. 643 00:31:39.359 --> 00:31:41.160 And if you you know, I kind of honed in 644 00:31:41.200 --> 00:31:43.400 on a few decisions that if you want to dig in, 645 00:31:43.640 --> 00:31:47.839 there's a few really good places. But the first question 646 00:31:48.559 --> 00:31:51.400 that I think has been interesting to watch that has 647 00:31:51.480 --> 00:31:54.440 generated a really interesting descent by Judge boomatad on the 648 00:31:54.480 --> 00:31:58.480 Ninth Circuit is whose prior cases are we talking about? 649 00:31:58.720 --> 00:32:02.119 Is it Court of Appeals cases? Is its Supreme Court cases? 650 00:32:02.480 --> 00:32:04.039 And sort of right out of the gate, the Ninth 651 00:32:04.039 --> 00:32:08.000 Circuit sort of assumed without deciding, I think directly all 652 00:32:08.039 --> 00:32:11.519 cases all precedents,

like we have circuit precedent about precedent, 653 00:32:11.599 --> 00:32:14.720 so we're going to apply our previous cases. And Judge 654 00:32:14.720 --> 00:32:17.599 Boomata sort of said that's crazy, and there's other problems 655 00:32:17.599 --> 00:32:21.319 with the decision, but that's a Lopez versus BONDI if 656 00:32:21.319 --> 00:32:24.440 you want to google it. I think Boomata's dissential is 657 00:32:24.480 --> 00:32:28.000 really nice. He walks through like a bunch of the 658 00:32:28.000 --> 00:32:31.920 doctrinal reasons otherwise under this paragraph, but for purposes of 659 00:32:31.960 --> 00:32:36.160 which Court's cases he determines and says it's Supreme Court determinations. 660 00:32:36.200 --> 00:32:37.240 That's what they had in mind. 661 00:32:37.279 --> 00:32:40.920 You leave in place the Supreme Court determinations and the 662 00:32:40.960 --> 00:32:46.000 circuit courts are not bound by prior interpretations that deferred 663 00:32:46.039 --> 00:32:48.640 to the agencies. I think for reasons that Roman kind 664 00:32:48.640 --> 00:32:51.960 of alluded to the sort of the institutional roles, right, 665 00:32:52.000 --> 00:32:54.359 that's the interpretive job of a judge. So that's kind 666 00:32:54.359 --> 00:32:57.640 of first bucket I think of doctrinal uncertainty created by 667 00:32:57.640 --> 00:33:00.200 this paragraph, and then the second and third are kind 668 00:33:00.200 --> 00:33:05.559 of related. Judge Newsom in the eleventh has a case, 669 00:33:05.599 --> 00:33:08.440 has a decision that goes or coccurrence that goes through 670 00:33:08.720 --> 00:33:09.759 what is a holding. 671 00:33:09.920 --> 00:33:12.119 And it's you know, it's a long piece. 672 00:33:12.440 --> 00:33:15.319 I don't necessarily recommend it to everybody, but he's he's 673 00:33:15.319 --> 00:33:18.640 struggling with what is the holding and what are we 674 00:33:18.720 --> 00:33:21.720 actually bound by? If you if you agree the Circuit 675 00:33:21.720 --> 00:33:24.119 Court president, you have to you have to keep. And 676 00:33:24.200 --> 00:33:27.720 he ends up taking the view that the prior determination 677 00:33:28.279 --> 00:33:31.759 that the agency reading was lawful is what you're what 678 00:33:31.799 --> 00:33:33.000 you have, and I think that is. 679 00:33:32.960 --> 00:33:33.880 Disputed as well. 680 00:33:34.599 --> 00:33:37.799 Related to that, there's a lot of litigation about what 681 00:33:37.920 --> 00:33:43.079 is the specific agency action and that was decided, you know, 682 00:33:43.079 --> 00:33:44.640 There's been a few cases that have. 683 00:33:44.880 --> 00:33:45.519 Have looked at that. 684 00:33:45.720 --> 00:33:47.400 I kind of like and would direct you to a 685 00:33:47.400 --> 00:33:51.720 Sixth Circuit case and the net Neutrality UH setting unfortunately 686 00:33:51.759 --> 00:33:56.039 named in Re MCP Number one eighty five. Raman I 687 00:33:56.079 --> 00:33:58.799 think was heavily involved

in that case. We were involved 688 00:33:58.799 --> 00:34:01.839 in it as well, and there the question was whether 689 00:34:02.039 --> 00:34:05.720 the Sixth Circuit felt like a prior Supreme Court determination 690 00:34:06.359 --> 00:34:10.679 under interpreting a part of the Telecommunications Act in Brand 691 00:34:10.960 --> 00:34:13.719 X from decades ago, whether they were sort of stuck 692 00:34:13.760 --> 00:34:16.679 with that. The Court there had said the FCC's interpretation 693 00:34:16.840 --> 00:34:19.840 is fine because of Chevron, and the Sixth Circuit there 694 00:34:19.880 --> 00:34:22.760 said no, we're not stuck with Brand X because what 695 00:34:22.840 --> 00:34:26.519 was a issue there, the specific agency action was the 696 00:34:26.519 --> 00:34:29.239 two thousand and two order. Six Circuit had before to 697 00:34:29.280 --> 00:34:31.920 twenty twenty four order, so they were not bound by 698 00:34:32.159 --> 00:34:34.480 that reasoning that had been endorsed by the Supreme Court. 699 00:34:34.519 --> 00:34:36.440 So you can see there's a lot of these threads 700 00:34:36.440 --> 00:34:38.920 that kind of cross current with each other. But I 701 00:34:38.960 --> 00:34:43.800 think if you read through the Boomaite descential in particular, 702 00:34:43.880 --> 00:34:47.880 you get a feel for the philosophical issues that Raman 703 00:34:48.000 --> 00:34:50.800 was talking about, which is like who'supposed to decide and 704 00:34:50.960 --> 00:34:53.559 what is our job as a judge? And I will say, 705 00:34:53.760 --> 00:34:57.039 coming reading that news and Opinion again last night, it 706 00:34:57.079 --> 00:35:01.519 felt like it was very It was a lot of technical, 707 00:35:03.679 --> 00:35:05.400 you know, work to avoid the. 708 00:35:05.360 --> 00:35:07.480 Real takeaway from lober Bright, which was. 709 00:35:07.400 --> 00:35:09.199 Like, the judges are supposed to be doing this, and 710 00:35:09.280 --> 00:35:12.440 if you have a question of law, the judges do it. 711 00:35:12.519 --> 00:35:14.079 And so that's kind of my takeaway. 712 00:35:14.119 --> 00:35:16.599 I think the other skid more in our questions that 713 00:35:16.679 --> 00:35:18.599 Ramana alerted to are pretty interesting. 714 00:35:18.679 --> 00:35:20.840 So we can talk more about story Decisis. 715 00:35:20.880 --> 00:35:24.440 But you know, there's a lot there that I think 716 00:35:24.440 --> 00:35:26.760 the courts are going to battle about for a while. 717 00:35:27.480 --> 00:35:29.639 Yeah. I mean, have we seen a flood of Star 718 00:35:29.760 --> 00:35:32.960 Decisis challenges? Not really right, There. 719 00:35:33.400 --> 00:35:35.320 Have been some, I mean it's been litigated, but not 720 00:35:35.360 --> 00:35:38.639 as many as one might think. I mean, I think 721 00:35:38.840 --> 00:35:41.719 on this one, I think Megan's exactly right. They're sure 722 00:35:42.000 --> 00:35:45.280 at least two distinct questions, Like one is who's who's 723 00:35:45.320 --> 00:35:47.800 precedent are we talking about? And then the second one is, 724 00:35:48.519 --> 00:35:54.119 you know, if a nineteen ninety nine rule adopting a 725 00:35:54.119 --> 00:35:58.239 certain theory was upheld and then the agency you know 726 00:35:58.400 --> 00:36:01.079 later inn acts a twenty twenty five rule that's based 727 00:36:01.119 --> 00:36:03.960 on the same interpretation, but is a different agency action. 728 00:36:04.159 --> 00:36:07.159 Are you bound by the ruling earlier? Is the specific 729 00:36:07.199 --> 00:36:10.800 agency action like the actual regulation that was an issue 730 00:36:10.840 --> 00:36:12.719 in the prior case, And those seem to be the 731 00:36:12.800 --> 00:36:16.320 two biggest issues. I think Boomata's decision is basically right 732 00:36:16.360 --> 00:36:18.119 on the first run of the It does open the 733 00:36:18.159 --> 00:36:21.880 door to, you know, potentially calling a question a much 734 00:36:21.920 --> 00:36:23.519 broader range of circuit level. President. 735 00:36:24.039 --> 00:36:26.039 Yeah, and this is one of the Murry jumpinions. 736 00:36:26.119 --> 00:36:28.000 I'm just going to flag that in one case over 737 00:36:28.039 --> 00:36:32.280 an AGHS regulation, I forget the exact details, but the 738 00:36:32.280 --> 00:36:34.559 tenh Circuit ruled on it, the Sixth Circuit ruled on it. 739 00:36:34.679 --> 00:36:37.039 A lot of the judges disagreed about what counts a 740 00:36:37.119 --> 00:36:39.599 specific agency action. It went up to the Supreme Court, 741 00:36:39.639 --> 00:36:42.840 and the Supreme Court denied. So, at least to me, 742 00:36:42.920 --> 00:36:45.079 it sounds like the Court wants to let the lower 743 00:36:45.119 --> 00:36:47.280 court judges try to figure this out for. 744 00:36:47.199 --> 00:36:48.320 A while longer. 745 00:36:48.599 --> 00:36:50.519 And so I just don't think we're sort of anywhere 746 00:36:50.519 --> 00:36:51.559 close to getting clarity. 747 00:36:51.800 --> 00:36:53.480 Well, and I think it was interesting that, you know, 748 00:36:53.599 --> 00:36:56.000 in the Bomate case that he was descending from a 749 00:36:56.039 --> 00:36:59.800 denial overhearing, and I think in the Eleventh Circuit case 750 00:37:00.159 --> 00:37:02.920 three concurring opinions. And so I think there's also a 751 00:37:02.960 --> 00:37:05.880 reluctance at some of the Courts of Appeals to resolve 752 00:37:05.920 --> 00:37:09.679 this because like they're hard questions, right, and but I 753 00:37:09.679 --> 00:37:12.280 think there's a there's an appetite for them to resolve it, 754 00:37:12.280 --> 00:37:14.320 and you can see it by the proliferation of these 755 00:37:14.599 --> 00:37:17.199 dissentials and concurrences that they're struggling with. 756 00:37:17.360 --> 00:37:20.239 And last comment on this for me, I think, you know, 757 00:37:20.280 --> 00:37:22.519 one of the reasons the court might not want to 758

00:37:22.599 --> 00:37:24.760 jump in as well is this is this was an 759 00:37:24.800 --> 00:37:27.679 issue that I think is probably especially important to Justice Barrett. 760 00:37:28.599 --> 00:37:33.679 She asked basically the same question of me and also 761 00:37:33.760 --> 00:37:36.159 Paul Clement, who argued low for Bright, you know, in 762 00:37:36.199 --> 00:37:38.679 the in the two cases that morning, which was exactly 763 00:37:38.760 --> 00:37:41.320 this issue, like what's going to happen to the prior cases? 764 00:37:41.880 --> 00:37:44.679 And if you think of of Justice Barrett as being, 765 00:37:44.760 --> 00:37:46.440 you know, one of the justices in that sort of 766 00:37:46.480 --> 00:37:50.800 middle group on the court, you know, the middle justices 767 00:37:50.840 --> 00:37:53.280 tend to have a greater sway and sort of resolving 768 00:37:53.559 --> 00:37:55.079 some of the hardest questions that get in front of 769 00:37:55.079 --> 00:37:57.320 the court. She was very focused on it. It seemed 770 00:37:57.360 --> 00:37:59.840 like her question was from coming from a place of 771 00:38:00.719 --> 00:38:03.960 not wanting to destabilize the lot too much, and so 772 00:38:04.159 --> 00:38:07.000 she clearly cared about it. And I suspect that, you 773 00:38:07.039 --> 00:38:10.639 know that maybe she is still thinking through, you know, 774 00:38:10.719 --> 00:38:14.079 exactly how this should be interpreted going forward. And they 775 00:38:14.119 --> 00:38:16.840 were fine putting this somewhat ambiguous language in the in 776 00:38:16.880 --> 00:38:19.559 the decision for now and letting the lower courts sorted 777 00:38:19.599 --> 00:38:20.159 out for a while. 778 00:38:20.440 --> 00:38:22.840 Yeah, that paragraph rings a little bit different than the 779 00:38:22.880 --> 00:38:24.599 rest of the paragraphs in the opinion. I think that 780 00:38:24.679 --> 00:38:29.360 was probably a highly negotiated paragraph and maybe Barrett had 781 00:38:29.360 --> 00:38:31.119 a little bit of writing to do there. And there 782 00:38:31.119 --> 00:38:34.639 are so many fun like academic questions about statuary start decisis, 783 00:38:35.800 --> 00:38:38.639 but I'll resist that. So the next one, I think 784 00:38:38.760 --> 00:38:40.840 is the one that law professors also spent a lot 785 00:38:40.880 --> 00:38:43.280 of time on, is what do we do now? 786 00:38:43.599 --> 00:38:43.639 Like? 787 00:38:43.719 --> 00:38:44.079 What is it? 788 00:38:44.199 --> 00:38:47.199 And I will say I was not surprised but also 789 00:38:47.280 --> 00:38:50.519 surprised that Ramon and Paul in their briefing didn't tell 790 00:38:50.599 --> 00:38:53.559 the court what to do. In other words, get rid 791 00:38:53.599 --> 00:38:55.639 of Chevron, but what do we replace it with? And 792 00:38:55.719 --> 00:39:01.039 the briefs were just silent on that silently interesting. 793 00:39:01.760 --> 00:39:04.239 I think we evoked skidmore, we said skinny. We didn't 794 00:39:04.360 --> 00:39:07.960 explain what skidmore means exactly that we are In other words, 795 00:39:08.039 --> 00:39:11.119 are we just a solution there, chris An, We're. 796 00:39:10.960 --> 00:39:14.159 Just going to do Danovo review like nothing, No, don't 797 00:39:14.159 --> 00:39:15.559 look at the agency at all? Or are we going 798 00:39:15.639 --> 00:39:19.840 to actually still do this Skidmore dance? And the court 799 00:39:20.400 --> 00:39:24.880 not surprisingly because in Kaiser, Justice Gorsuch's descent or severed 800 00:39:24.920 --> 00:39:28.000 opinion going against actually also embraced skidmore. So it was 801 00:39:28.000 --> 00:39:30.039 already kind of there. But it was interesting that I 802 00:39:30.119 --> 00:39:32.239 didn't think the parties you really put that out there. 803 00:39:32.920 --> 00:39:35.360 The Court is very careful though to say it's not 804 00:39:35.639 --> 00:39:38.800 skidmore deference. They use the word respect. And so what 805 00:39:38.880 --> 00:39:40.480 are we doing with skidmore? And I'll give you a 806 00:39:40.519 --> 00:39:43.679 little bit of a take on what I see when 807 00:39:43.679 --> 00:39:45.800 it comes to skidmore. So the idea of skidmore is 808 00:39:45.960 --> 00:39:49.719 old nineteen forties decision where it says that we courts 809 00:39:49.760 --> 00:39:52.320 defer to agency's interpretations to the extent they have the 810 00:39:52.360 --> 00:39:54.880 power to persuade. You know, are they contemporaneous, are they 811 00:39:54.920 --> 00:39:58.280 long standing? Are they well reasoned, do they invoke expertise? 812 00:39:58.360 --> 00:40:00.159 You know, all these kind of factors that might help 813 00:40:00.239 --> 00:40:03.199 us persuade. And a lot of litigators will be like, well, 814 00:40:03.320 --> 00:40:04.840 is it not just a legal brief? Like what are 815 00:40:04.880 --> 00:40:07.000 we doing? Like why do we give special difference to 816 00:40:07.079 --> 00:40:09.480 the agency on this? Why don't we just say if 817 00:40:09.519 --> 00:40:11.679 they make good arguments, they make good arguments and they win. 818 00:40:12.239 --> 00:40:14.440 And the court didn't go there. The court kept some 819 00:40:14.639 --> 00:40:16.840 sort of skidmore. And I might kind of take on 820 00:40:16.960 --> 00:40:20.159 skidmore is well, one, it's whatever you want it to be, 821 00:40:20.440 --> 00:40:22.400 sadly right. I mean, it gives a lot of discretion 822 00:40:22.519 --> 00:40:24.840 for judges to kind of impose their own view of deference. 823 00:40:24.880 --> 00:40:27.000 And I do think you're going to see some judges 824 00:40:27.079 --> 00:40:29.960 just embrace a chevron like skidmore. But why would it 825 00:40:30.079 --> 00:40:33.000 be different, Like why would we still view the agency's 826 00:40:33.000 --> 00:40:36.559 interpretation as having some sort of like expert weight. And 827 00:40:36.639 --> 00:40:39.760 I think it goes back to

it's a candid interpretation. 828 00:40:39.840 --> 00:40:42.119 It's a tool of interpretation. It's a way to figure 829 00:40:42.119 --> 00:40:43.760 out what meaning is. You might say, well, how does 830 00:40:43.800 --> 00:40:47.519 it tell us that it's about context? So give you 831 00:40:47.599 --> 00:40:50.480 one example where it matters a lot. The major questions doctrin, 832 00:40:51.559 --> 00:40:54.679 and we're deciding whether the major questions doctrine applies. Courts 833 00:40:54.800 --> 00:40:57.679 look and see, has the agency always had the same position? 834 00:40:57.880 --> 00:41:01.280 Have they ever invoked this different position before? What did 835 00:41:01.280 --> 00:41:04.679 they say when the statute was first enacted? And I 836 00:41:04.760 --> 00:41:06.280 think that type of skidma is going to have a 837 00:41:06.280 --> 00:41:08.280 lot of weight. In other words, if the agency has 838 00:41:08.320 --> 00:41:12.159 always had the same interpretation, a court's going to come 839 00:41:12.199 --> 00:41:16.360 in and say, that's pretty good contextual evidence that that's 840 00:41:16.440 --> 00:41:19.360 that's what the statute meant when it was enacted. And similarly, 841 00:41:19.440 --> 00:41:21.239 if the agency right after it was an act and 842 00:41:21.320 --> 00:41:23.599 said this is what the statute means, this is how 843 00:41:23.599 --> 00:41:25.559 we're going to proceed, that's going to have a lot 844 00:41:25.599 --> 00:41:28.840 of weight. In other words, it's just one more tool 845 00:41:28.840 --> 00:41:30.679 of interpretation. At least that's kind of kind of my 846 00:41:30.840 --> 00:41:33.000 take on that. I think it might also have weight 847 00:41:33.119 --> 00:41:36.000 in when it's a complex regulatory scheme. In other words, 848 00:41:36.079 --> 00:41:38.800 these agencies help draft the statute and if they can 849 00:41:38.880 --> 00:41:42.239 help explain how that's statute as a whole works, and 850 00:41:42.360 --> 00:41:44.840 it only works if you have this interpretation of court's 851 00:41:44.840 --> 00:41:47.079 going to look at that and say, yeah, you were there, 852 00:41:47.199 --> 00:41:50.000 you understand this you're on the ground, you have craft expertise. 853 00:41:50.519 --> 00:41:52.199 I think beyond that though, it doesn't have a role, 854 00:41:52.280 --> 00:41:54.360 and I'm kind of curious if you'll have different intakes, 855 00:41:55.280 --> 00:41:57.159 like what role should it play. 856 00:41:57.440 --> 00:41:59.800 I mean, look, I think you've laid out a lot 857 00:41:59.840 --> 00:42:02.480 of that. I think, you know, I think there is 858 00:42:02.559 --> 00:42:06.840 some justification for taking seriously what the agency says on 859 00:42:07.559 --> 00:42:09.519 you know, you called it. I think sort of standard 860 00:42:09.760 --> 00:42:13.119 interpretive principles of construction. But I think the court when 861 00:42:13.159 --> 00:42:16.000 they're interpreting the Constitution, when they're interpreting statutes, they want 862 00:42:16.039 --> 00:42:19.320 to understand the contemporaneous context in which it arose. And 863 00:42:19.440 --> 00:42:22.519 if the agency was there president the creation helping draft 864 00:42:23.719 --> 00:42:27.559 the statute, you know, their voice to listen to. At 865 00:42:27.639 --> 00:42:30.840 least you don't necessarily defer to them, but you give 866 00:42:30.880 --> 00:42:32.280 them respect and you pay attention to it. I think 867 00:42:32.280 --> 00:42:35.679 there's also a debate on constitutional interpretation about the role 868 00:42:35.719 --> 00:42:39.840 of like subsequent history and in the statutory area. As 869 00:42:39.880 --> 00:42:41.719 we did point out in our brief, there is a 870 00:42:41.800 --> 00:42:45.840 long tradition of looking to consistent and contemporaneous and consistent 871 00:42:45.880 --> 00:42:49.280 agency interpretations over time. So I think that's certainly true. 872 00:42:49.679 --> 00:42:51.679 I think there's one other thing that you didn't touch 873 00:42:51.719 --> 00:42:55.280 on it. It sort of implicates the same. Boomte opinion 874 00:42:55.559 --> 00:42:59.239 is that there's almost like a procedural component maybe to 875 00:42:59.360 --> 00:43:02.760 the skid More weight idea or Skidmore respect, which is 876 00:43:02.840 --> 00:43:06.079 that as a procedural matter that the judges need to 877 00:43:06.159 --> 00:43:09.000 read it, they need to really think it's like they 878 00:43:09.039 --> 00:43:10.920 have they have to look at what the agency is 879 00:43:10.920 --> 00:43:14.480 saying and consider it seriously, and so it's not like 880 00:43:16.119 --> 00:43:18.440 optional for them to look at it or not. Judge 881 00:43:18.440 --> 00:43:22.320 Boomte in his decision that I think is really quite 882 00:43:22.360 --> 00:43:25.639 correct on some of the started saysis issues. He maybe 883 00:43:25.679 --> 00:43:28.000 goes a little too far in the opposite direction. He says, look, 884 00:43:28.039 --> 00:43:31.119 if it's if the if the statute is playing, you 885 00:43:31.199 --> 00:43:33.119 don't even need to look at what the agency says. 886 00:43:33.400 --> 00:43:35.320 And I don't know if he's like literally means that, 887 00:43:35.480 --> 00:43:38.880 but the opinion says that the panel in that case 888 00:43:39.000 --> 00:43:44.199 quote should never even have consulted the agency's interpretation. And 889 00:43:44.320 --> 00:43:46.880 I think that's actually at odds with with Skidmore and 890 00:43:46.920 --> 00:43:48.280 with the court things. I think the court thinks you 891 00:43:48.320 --> 00:43:50.440 should definitely pay attention to what the agency is saying, 892 00:43:50.800 --> 00:43:52.679 not because you have to defer to it, but because 893 00:43:53.000 --> 00:43:55.440 it's worthy to just hear them out and uh and 894 00:43:55.639 --> 00:43:57.840 and so I think there's like

that sort of procedural 895 00:43:57.880 --> 00:43:59.960 aspect that that maybe is important. 896 00:44:00.280 --> 00:44:02.480 That I mean, I think, wasn't the agency there the 897 00:44:02.559 --> 00:44:06.400 b I A right, So I do wonder if I'm wrong, 898 00:44:06.480 --> 00:44:09.519 tell me right. I think it was an immigration So 899 00:44:09.519 --> 00:44:11.519 it was an immigration appeal. And I think one of 900 00:44:11.599 --> 00:44:14.159 the one of the things there is I can see 901 00:44:14.199 --> 00:44:18.159 why Judge Boomata would not think that the BIA might 902 00:44:18.239 --> 00:44:22.480 need the kind of respect or consultation that maybe one 903 00:44:22.519 --> 00:44:24.360 of the technical or subject. 904 00:44:24.079 --> 00:44:25.280 Matter expert agencies would. 905 00:44:25.280 --> 00:44:27.599 So I think some of these cases are interesting because 906 00:44:27.880 --> 00:44:30.719 they're coming up in different ways. And so I think, 907 00:44:30.920 --> 00:44:34.719 you know, does the BIA have some uniquely special you know, 908 00:44:34.880 --> 00:44:38.480 insight to what the definition is in the Immigration National 909 00:44:38.519 --> 00:44:41.960 Dilation Act. No, but maybe in other instances, you know, 910 00:44:42.239 --> 00:44:44.880 that language may go too far, But for other agencies 911 00:44:44.920 --> 00:44:47.440 there may be more willingness to look at what a 912 00:44:47.519 --> 00:44:49.960 technical or historical regulator would would think. 913 00:44:50.159 --> 00:44:52.679 Yeah, I mean, I think I think, as I understood 914 00:44:52.679 --> 00:44:54.760 his logic in the opinion, it was not because the 915 00:44:54.800 --> 00:44:57.400 agency didn't have particular expertise on that question. It was 916 00:44:57.480 --> 00:45:00.039 more that because you looked at the statute itself and 917 00:45:00.079 --> 00:45:01.800 it was clear enough. And he was like, Okay, statute's 918 00:45:01.800 --> 00:45:03.559 clear enough. I don't need to look beyond it. And 919 00:45:03.639 --> 00:45:06.440 I think ultimately that's probably the right answer, But I 920 00:45:06.480 --> 00:45:09.199 don't think that's the reason not to actually read what 921 00:45:09.280 --> 00:45:10.679 the agency said and look at their XPO. 922 00:45:10.880 --> 00:45:12.840 I want to pick up on this thread because I 923 00:45:12.920 --> 00:45:15.840 think i'm the bibised. I mean, i've long ERDD and 924 00:45:15.880 --> 00:45:17.840 I think there's no expertise there. Like, I mean, I've 925 00:45:17.840 --> 00:45:21.360 never liked the Chevron justification for immigration communication, but in 926 00:45:21.440 --> 00:45:23.760 the room making context kind of picking what you're saying, 927 00:45:23.920 --> 00:45:27.480 like it actually does capture original public meaning better, right, 928 00:45:27.599 --> 00:45:30.039 Like I mean, in other words, if if the agency 929 00:45:30.079 --> 00:45:33.079 went through the whole room making process listed public comments, 930 00:45:33.119 --> 00:45:36.159 that comes out and says, this is how we interpret 931 00:45:36.239 --> 00:45:38.559 this statue. This is how we're going to implement this statue. 932 00:45:39.199 --> 00:45:40.719 They actually I mean, I hadn't thought of it that way. 933 00:45:40.800 --> 00:45:42.880 But like if it's more proceduralized in other words, and 934 00:45:43.000 --> 00:45:46.159 it's long standing, contemporaneous, or if it is, it's even 935 00:45:46.199 --> 00:45:48.119 more powerful. Right, But like this idea that they're trying 936 00:45:48.159 --> 00:45:50.880 to capture even the public kind of the. 937 00:45:52.639 --> 00:45:56.840 Statue believe that. But but at least they're there. At 938 00:45:56.920 --> 00:45:59.880 least they're there. They're a voice that needs to be considered. 939 00:46:01.400 --> 00:46:04.079 Like roole making and why why we And this gets 940 00:46:04.119 --> 00:46:06.760 back to some functionary too, like if it's done through 941 00:46:06.840 --> 00:46:09.760 rulemaking and adjudication, like maybe we should think about this different. 942 00:46:09.519 --> 00:46:12.719 Anyway, I just want to add I agree with that, 943 00:46:12.880 --> 00:46:15.679 But I also think skidmore to pick up on your 944 00:46:15.719 --> 00:46:18.960 consistency point is important in that respect. I think the 945 00:46:19.039 --> 00:46:22.000 court and Loper Bright was very concerned with agency's flip 946 00:46:22.039 --> 00:46:25.880 flopping from one position to the next, administration to administration, 947 00:46:27.519 --> 00:46:29.360 and that like sort of showed through in a lot 948 00:46:29.400 --> 00:46:30.400 of ways to the opinion. 949 00:46:30.440 --> 00:46:32.199 And I sort of read some of the skid Moore 950 00:46:32.239 --> 00:46:33.840 stuff to say, we care about. 951 00:46:33.679 --> 00:46:36.079 Consistency and so like, on the one side, if the 952 00:46:36.119 --> 00:46:39.079 agency's interpretation has been consistent over time, maybe it should 953 00:46:39.119 --> 00:46:41.559 be given more weight. On the flip side, if this 954 00:46:41.719 --> 00:46:45.039 is a big change in position, uh, this is a 955 00:46:45.119 --> 00:46:47.920 situation where we should reject sort of the agency's interpretation 956 00:46:48.079 --> 00:46:50.159 and not give it extra special weight. And so I 957 00:46:50.320 --> 00:46:52.360 sort of thought that it fit very well with the 958 00:46:52.440 --> 00:46:55.719 consistency through line that seemed to be throughout the whole opinion. 959 00:46:55.960 --> 00:46:58.599 Yeah, I like that a lot, like the anti anti 960 00:46:58.679 --> 00:47:01.760 skid Moore type if it's changing its position. Yeah, So 961 00:47:01.840 --> 00:47:03.599 we got one left, and then I would definitely want 962 00:47:03.599 --> 00:47:05.320 to get question. I've got lots more questions, but I 963 00:47:05.320 --> 00:47:06.880 want to get back. So the last one that Ramon

964 00:47:07.119 --> 00:47:10.159 flagged at the beginning is what's the future of our deference? 965 00:47:10.880 --> 00:47:13.719 Are we going to keep Kagan's twenty five step appro 966 00:47:15.000 --> 00:47:17.400 I mean's gonna what's gonna happen to our. 967 00:47:18.519 --> 00:47:22.519 So we don't know for sure, I think on this question, though, 968 00:47:22.639 --> 00:47:24.719 unlike some of the other questions that we've been talking about, 969 00:47:25.159 --> 00:47:28.559 there hasn't been much sort of disagreement so far, at 970 00:47:28.639 --> 00:47:30.559 least on the lower what the lower court's been doing. 971 00:47:30.599 --> 00:47:33.079 I think the lower courts, at the district court level 972 00:47:33.159 --> 00:47:35.639 and at the Court of Appeals level so far are 973 00:47:35.760 --> 00:47:41.719 basically cabining Lowberbright to the context of interpreting statutes. It's 974 00:47:41.760 --> 00:47:43.639 a little curious to me that that we haven't seen 975 00:47:43.719 --> 00:47:47.480 more on this, because it does strike me that, you know, 976 00:47:47.599 --> 00:47:52.559 you have the Supreme Court in Lowberbright definitively construing the 977 00:47:52.599 --> 00:47:56.320 APA for the first time, and the APA language that 978 00:47:56.400 --> 00:48:01.480 bears on the statutory question is either identical or literally 979 00:48:01.559 --> 00:48:04.159 the same as the language that bears on how you 980 00:48:04.280 --> 00:48:09.079 interpret agency regulations, and so you know, one would think 981 00:48:09.159 --> 00:48:13.320 that having interpreted the APA for the first time in Loberbright, 982 00:48:13.920 --> 00:48:17.320 there's not really a clear reason why that analysis wouldn't 983 00:48:17.360 --> 00:48:22.480 carry over into the context of looking at regulations. I 984 00:48:22.960 --> 00:48:26.639 think that some judges out there have flagged that, but 985 00:48:26.880 --> 00:48:30.039 I think they're basically treating this as this one's for 986 00:48:30.119 --> 00:48:31.960 the Supreme Court because of the fact that you have 987 00:48:32.079 --> 00:48:36.239 Kaiser just a few years ago on starry decisive grounds 988 00:48:36.440 --> 00:48:38.239 in a very close, you know, five to four decision, 989 00:48:39.280 --> 00:48:43.360 leaving our deference intact. The one thing that there's an 990 00:48:43.360 --> 00:48:46.039 opportunity this coming term where the Court might if it 991 00:48:46.119 --> 00:48:48.480 wants to get into some of these issues. There's a 992 00:48:48.599 --> 00:48:51.519 case that they took the I don't know if it's 993 00:48:51.559 --> 00:48:56.360 Bared or Beard, but the Baird case, I think is 994 00:48:56.400 --> 00:49:00.119 how I pronounce it. That involves the sentencing guidelines, and 995 00:49:00.199 --> 00:49:03.960 the question is whether courts should defer to the Sentencing 996 00:49:04.039 --> 00:49:07.960 Commission's commentary, the official commentary on the senencing guidelines. There's 997 00:49:08.000 --> 00:49:11.000 an old Supreme Court decision that had said, yes, you 998 00:49:11.079 --> 00:49:13.960 do defer, and it had used the analogy basically picking 999 00:49:14.039 --> 00:49:17.239 up on our difference and said, you know, Sentencing Commission, 1000 00:49:17.840 --> 00:49:20.360 you know, creates the guidelines and they do this commentary 1001 00:49:20.400 --> 00:49:22.000 that sort of explains what they mean, so you should 1002 00:49:22.039 --> 00:49:24.280 defer to it. And so the court is going to 1003 00:49:24.320 --> 00:49:26.599 be asked by the parties to think about how these 1004 00:49:27.079 --> 00:49:31.000 evolutions in Kaiser, evolution in Loberbright on the on that 1005 00:49:31.159 --> 00:49:34.239 sort of deference to agencies, how that logic maybe carries 1006 00:49:34.280 --> 00:49:38.880 over to the sentencing guidelines situation, and it may give 1007 00:49:38.960 --> 00:49:40.199 us a little bit of a sense of where the 1008 00:49:40.280 --> 00:49:44.159 court is on the future of of our difference. 1009 00:49:44.800 --> 00:49:50.119 Yeah, a co author and I read every Kaiser decisions 1010 00:49:50.159 --> 00:49:54.800 excited Kaiser and tell Lope or Bright and you know, 1011 00:49:54.920 --> 00:49:57.480 doctors sometimes have to work their way pure, but at 1012 00:49:57.519 --> 00:49:59.480 least what we saw on workers it was an absolute mess. 1013 00:49:59.519 --> 00:50:01.079 I mean, they have a really hard time doing the 1014 00:50:01.119 --> 00:50:04.159 five step dance than Kaiser. And so it'll be interesting 1015 00:50:04.159 --> 00:50:05.960 to see if the court at some point just says, 1016 00:50:06.000 --> 00:50:07.880 you know, let's just standardize this and make it the 1017 00:50:07.920 --> 00:50:11.400 same as Loper Bright. There are things that are different 1018 00:50:11.400 --> 00:50:15.119 about regulations, though, in particular the agency is both writing 1019 00:50:15.159 --> 00:50:17.320 it and interpreting it, which from a separation of powers 1020 00:50:17.360 --> 00:50:20.000 perspective might make a lot of people uneasy, but from 1021 00:50:20.079 --> 00:50:23.159 a do we actually care what they say? Might actually 1022 00:50:23.360 --> 00:50:25.039 we might care more what they say because they actually 1023 00:50:25.039 --> 00:50:26.920 wrote it. I mean it's like asking Congress, what did 1024 00:50:27.000 --> 00:50:30.559 you mean when you enacted that statue? So there's a 1025 00:50:30.599 --> 00:50:32.360 kind of a there is a weird difference there that 1026 00:50:33.159 --> 00:50:36.360 the court might have to grapple with. So I've got 1027 00:50:36.920 --> 00:50:39.599 lots more, Adam, do we have any questions or if not, 1028 00:50:39.679 --> 00:50:44.000 I'll kind of jump in with so what about agency behavior? 1029 00:50:44.159 --> 00:50:44.199 Like? 1030 00:50:44.280 --> 00:50:46.639 Have we So we've talked a lot about how courts 1031

00:50:46.679 --> 00:50:50.400 have changed and how maybe litigations changed, but have we 1032 00:50:50.480 --> 00:50:52.639 been able to see anything how agencies have changed their 1033 00:50:52.679 --> 00:50:53.880 approaches after a Loper Bright? 1034 00:50:54.199 --> 00:50:57.280 I mean, I think the general counsels and the lawyers 1035 00:50:57.480 --> 00:51:01.679 are ascendant in the agencies. I think some agencies, at 1036 00:51:01.719 --> 00:51:04.840 least the ones I practiced before, are really interested and 1037 00:51:05.039 --> 00:51:09.599 open to like core statutory arguments that five ten years 1038 00:51:09.639 --> 00:51:13.559 ago they would have spent a few paragraphs in an 1039 00:51:13.639 --> 00:51:17.440 order on, but now they're very much more interested. I 1040 00:51:17.559 --> 00:51:19.840 have seen anything Maria has picked up on all this, 1041 00:51:20.920 --> 00:51:25.119 the invocation of general rulemaking and sort of they're they're 1042 00:51:25.320 --> 00:51:28.280 looking for a lot more statutory hooks on which to 1043 00:51:28.360 --> 00:51:30.079 ground what they want to do. So I've seen the 1044 00:51:30.159 --> 00:51:33.840 ordering clauses in things expand a lot, and we're getting 1045 00:51:33.920 --> 00:51:36.639 questions like has the agency ever cited this before for 1046 00:51:36.719 --> 00:51:38.960 anything like this, And the answer is like, no, they haven't. 1047 00:51:39.039 --> 00:51:43.599 They're digging through the statute to find some hook But 1048 00:51:43.679 --> 00:51:46.440 I think, you know, the agencies, I think they're cautious 1049 00:51:46.840 --> 00:51:50.599 in embarking on new authorities, but I don't think they're 1050 00:51:50.719 --> 00:51:54.440 terribly fearful, and we haven't seen I think a lot 1051 00:51:54.480 --> 00:51:57.480 of real hesitance in say the national security space or 1052 00:51:58.400 --> 00:52:01.800 some of those areas to lean pretty hard into their 1053 00:52:01.800 --> 00:52:04.239 statutory authorities or what they claimed to be their statutory 1054 00:52:04.280 --> 00:52:06.360 authorities and kind of wait and see if they're going 1055 00:52:06.440 --> 00:52:08.199 to get real pushback. 1056 00:52:07.880 --> 00:52:08.599 You know, in court. 1057 00:52:09.400 --> 00:52:11.960 Yeah, Maria, I'm the EPA front of what do we 1058 00:52:12.079 --> 00:52:12.840 see on that front? 1059 00:52:13.199 --> 00:52:16.000 Yeah, So, more on the deregulatory side, I think it's 1060 00:52:16.079 --> 00:52:18.400 been pretty interesting to watch how this is unfolded over 1061 00:52:18.440 --> 00:52:20.480 the last year or so. I think we all remember, 1062 00:52:20.639 --> 00:52:23.639 like early in President Trump's second term, he issued a 1063 00:52:23.840 --> 00:52:27.239 memorandum to agencies sort of directing them to take a 1064 00:52:27.320 --> 00:52:29.480 hard look at the regulations they had on the books 1065 00:52:29.880 --> 00:52:32.000 and decide whether any

of them were unlawful and might 1066 00:52:32.039 --> 00:52:33.760 of lope or bright in a bunch of other Supreme 1067 00:52:33.800 --> 00:52:34.559 Court decisions. 1068 00:52:35.039 --> 00:52:37.800 Not much happened. So that was followed up with another 1069 00:52:38.039 --> 00:52:40.039 memorandum from Ohira where. 1070 00:52:40.320 --> 00:52:42.239 They were sort of critical of agencies for not like 1071 00:52:42.400 --> 00:52:45.119 really taking President Trump up on this charge and sort 1072 00:52:45.119 --> 00:52:46.960 of urging them to be more aggressive and. 1073 00:52:47.039 --> 00:52:50.079 Going through their legs and figuring out what they could 1074 00:52:50.159 --> 00:52:50.599 do away with. 1075 00:52:51.159 --> 00:52:53.800 And as I think Megan suggested early on, like we 1076 00:52:53.920 --> 00:52:57.079 did not, despite that top down directive, see a big 1077 00:52:57.280 --> 00:53:01.239 wave of deregulatory actions premised on low for Bright. But 1078 00:53:01.719 --> 00:53:04.760 the EPA is I think a notable exception, especially on 1079 00:53:04.880 --> 00:53:08.039 some big climate related REGs. So we saw them rely 1080 00:53:08.199 --> 00:53:12.519 on Lowerbright and rescinding the Endangerment finding in proposing to 1081 00:53:12.559 --> 00:53:16.119 scale back power plant emission standards, making adjustments on Clean 1082 00:53:16.159 --> 00:53:20.639 Water Act are like permitting for states. And I guess 1083 00:53:20.679 --> 00:53:23.840 maybe that's not super surprising because the EPA has a 1084 00:53:23.920 --> 00:53:26.960 long history of sort of coming out with these ambitious, 1085 00:53:27.480 --> 00:53:32.599 controversial REGs that are premised on really expansive theories of 1086 00:53:32.679 --> 00:53:35.599 statutory authority, and that's of course what Lowerbright sort of 1087 00:53:35.639 --> 00:53:39.320 put most at risk. But we're seeing similar moves in interior, 1088 00:53:39.440 --> 00:53:42.559 the Fish and Wildlife Services proposing to make some changes 1089 00:53:42.599 --> 00:53:45.519 to Endangered Species Act REGs, and in both of those 1090 00:53:45.800 --> 00:53:51.440 recisions they've said these REGs were already upheld under Chevron, 1091 00:53:51.519 --> 00:53:54.039 like we know that we could keep them, but in 1092 00:53:54.199 --> 00:53:56.239 light of Lowe or Bright, we don't think they reflect 1093 00:53:56.280 --> 00:53:57.960 the best reading of the statute, so we're going to 1094 00:53:58.000 --> 00:53:58.639 do away with them. 1095 00:53:58.719 --> 00:54:01.440 And I saw another off surface mining role that did. 1096 00:54:01.360 --> 00:54:04.320 The same, So I think the takeaway from all of 1097 00:54:04.400 --> 00:54:08.719 this is that Lowerbright can be a very powerful deregulatory tool, 1098 00:54:09.039 --> 00:54:11.360 but the agencies have to be willing to actually do it, 1099 00:54:11.519 --> 00:54:14.079 and they go find the rags, can see that they 1100 00:54:14.119 --> 00:54:17.320 were based on an incorrect interpretation of the statute and 1101 00:54:17.480 --> 00:54:19.559 rescind them. So I think the door's sort of open 1102 00:54:19.639 --> 00:54:23.039 for regulated parties and trade associations and others to sort 1103 00:54:23.079 --> 00:54:24.960 of do that first step for them, right like go 1104 00:54:25.119 --> 00:54:27.679 to them with targets and explain to them like, this 1105 00:54:28.119 --> 00:54:30.679 is one that's vulnerable after lower Bright, and we would 1106 00:54:30.840 --> 00:54:32.880 like you to rescind it because there might be some 1107 00:54:33.039 --> 00:54:33.559 traction there. 1108 00:54:33.880 --> 00:54:36.039 Well, you guys, Maria just had an event at the 1109 00:54:36.119 --> 00:54:40.599 Chamber where the General Counsel of the SEC basically said 1110 00:54:41.199 --> 00:54:43.559 people have not been showing up and asking us very 1111 00:54:43.599 --> 00:54:46.519 specifically to rescind things. And so I think that call 1112 00:54:46.679 --> 00:54:48.760 is out there, whether it's you know, lower bright based 1113 00:54:48.800 --> 00:54:51.920 or otherwise, but I agree, like it's there, you know. 1114 00:54:52.159 --> 00:54:52.719 You can use it. 1115 00:54:52.920 --> 00:54:56.119 Yeah, And there is some nervousness right on that front 1116 00:54:56.199 --> 00:54:59.519 of you know, sometimes we can bake in settle expectations 1117 00:54:59.559 --> 00:55:02.400 and how we structure our business operations. That could be 1118 00:55:02.880 --> 00:55:04.719 if we start playing that game too much, it might 1119 00:55:04.800 --> 00:55:05.679 might get kind of dangerous. 1120 00:55:05.719 --> 00:55:10.280 EDU just want to tell you that letless local right regulation. 1121 00:55:10.519 --> 00:55:13.320 The Secretary has asked the visieries to pull it and 1122 00:55:13.400 --> 00:55:15.159 they're going to have a meeting on the twenty third. 1123 00:55:15.199 --> 00:55:18.760 If anyone wants to run, good luck. 1124 00:55:19.079 --> 00:55:19.199 You know. 1125 00:55:19.280 --> 00:55:23.760 I think on other front, like impact on agencies, remind 1126 00:55:23.760 --> 00:55:25.199 you want to be on this no no go. 1127 00:55:25.280 --> 00:55:27.960 First, I was going to say anecdotally, you know, Marina 1128 00:55:28.000 --> 00:55:32.719 talked about the deregulatory you know, uh context, there's some 1129 00:55:32.800 --> 00:55:35.000 things that they've been the current administration is doing. They 1130 00:55:35.039 --> 00:55:38.320 are not quite deregulatory, but they're trying to provide, you know, 1131 00:55:38.440 --> 00:55:42.280 additional authorization to do certain things. And just anecdotally, I've 1132 00:55:42.320 --> 00:55:47.440 sort of seen the back and forth between UH sophisticated 1133 00:55:47.639 --> 00:55:52.239 agency lawyers and regulated entities and the sort of dialogue 1134 00:55:52.280 --> 00:55:54.559 on like how far the agencies should

go. And it 1135 00:55:54.639 --> 00:55:57.639 does seem to me that that the decision is a 1136 00:55:57.960 --> 00:56:01.159 very significant factor. And in the old days, I think 1137 00:56:01.639 --> 00:56:05.159 the approach was often you know, hey, if it's close enough, 1138 00:56:05.199 --> 00:56:07.599 it's ambiguous, we're gonna win. We can just do it. Yeah, 1139 00:56:07.599 --> 00:56:09.760 we can go far. And if you're in a left 1140 00:56:09.800 --> 00:56:12.480 wring administration, that means going far in that direction, if 1141 00:56:12.480 --> 00:56:15.039 you're in a right wing administration the other way. But 1142 00:56:15.159 --> 00:56:18.119 here I've noticed that there's like a breaking fund of 1143 00:56:18.280 --> 00:56:21.920 sort of self censorship on the agencies, an awareness that 1144 00:56:22.000 --> 00:56:25.079 they're going to face lope or bright style challenges maybe 1145 00:56:25.239 --> 00:56:29.079 from the left, and an awareness that they need to 1146 00:56:29.159 --> 00:56:31.519 kind of be careful and not doing too you know, 1147 00:56:31.639 --> 00:56:33.480 going too far. And I think that's you know, whether 1148 00:56:33.480 --> 00:56:35.519 you agree with what they're doing or not, Like, I 1149 00:56:35.559 --> 00:56:37.639 think that that is a testament that's how the rule 1150 00:56:37.639 --> 00:56:39.559 of law should work and how it should be a 1151 00:56:39.960 --> 00:56:42.760 real constraint on agencies, whatever your political persuasion. 1152 00:56:42.920 --> 00:56:48.360 Yeah, it's interesting on the inside the agency front. Fifteen 1153 00:56:48.440 --> 00:56:51.559 years will I'm old ten fifteen years ago I interviewed 1154 00:56:51.599 --> 00:56:54.760 like one hundred and thirty agency rule drafters, mainly lawyers, 1155 00:56:55.480 --> 00:56:57.320 and ask them like what tools do you use? And 1156 00:56:57.440 --> 00:56:59.000 Chevron was the big winner, like, oh, we all think 1157 00:56:59.039 --> 00:57:01.320 about Chevron'll think about sh I did have a fair 1158 00:57:01.400 --> 00:57:04.519 number of chief regulatory lawyers. Big agencies do rules say 1159 00:57:04.559 --> 00:57:06.599 they don't think about Chevron at all, which is interesting. 1160 00:57:06.760 --> 00:57:08.960 I don't entirely buy that. They do say they think 1161 00:57:08.960 --> 00:57:11.159 about major questions doctrine though, but if you think about 1162 00:57:11.159 --> 00:57:15.039 the role of the agency lawyer, it changes dramatically or potentially. 1163 00:57:15.119 --> 00:57:17.559 Does you know, before the policy folks would come to 1164 00:57:17.599 --> 00:57:20.920 the General Counsel's office and be like, can we do this? 1165 00:57:21.239 --> 00:57:24.280 And you know, the lawyer be like, well, like, yeah, 1166 00:57:24.360 --> 00:57:28.159 we could say the statute's ambiguous, got a seventy percent 1167 00:57:28.199 --> 00:57:30.440 when you know litigation rests maybe thirty percent, but like 1168

00:57:30.639 --> 00:57:33.159 we've got a pretty good argument, and you look reasonable, 1169 00:57:33.239 --> 00:57:35.320 like just add some more stuff in there, and so 1170 00:57:35.440 --> 00:57:37.559 let's do it, or at least you can do it right. 1171 00:57:38.000 --> 00:57:41.880 And now it's do we have the best interpretation, and 1172 00:57:42.079 --> 00:57:43.760 now the agency lawyer is like, well, it might not 1173 00:57:43.880 --> 00:57:46.360 be the best, but it's at a temper you know, 1174 00:57:46.480 --> 00:57:49.000 like yeah, and so it actually does shift things a bit. 1175 00:57:49.480 --> 00:57:50.840 When I was in then sg's office, one of the 1176 00:57:50.880 --> 00:57:52.480 things we would do we would have to do is 1177 00:57:52.559 --> 00:57:56.119 sort of help or we would the Solicitor General would 1178 00:57:56.199 --> 00:57:58.440 have the authority to make decisions on whether an agency 1179 00:57:58.519 --> 00:58:01.159 could take a position on appeal, and so I would 1180 00:58:01.199 --> 00:58:03.039 One of my jobs was to kind of glaize with 1181 00:58:03.079 --> 00:58:05.880 the agency lawyers and I'd call them and sometimes they'd say, 1182 00:58:05.920 --> 00:58:08.559 we want to say X, and I'd say, well, like, 1183 00:58:08.760 --> 00:58:10.679 what about this problem with the text and there's this 1184 00:58:10.840 --> 00:58:13.760 legislative history that cuts against you, and they don't be like, yeah, 1185 00:58:13.880 --> 00:58:16.320 more of that. Literally, that was one of the things 1186 00:58:16.320 --> 00:58:18.400 that helped shape my thinking about how it worked on 1187 00:58:18.440 --> 00:58:20.559 the ground. I just don't think you can do that anymore. 1188 00:58:20.559 --> 00:58:23.519 Obviously, one last sort of practice point on this, we've. 1189 00:58:25.039 --> 00:58:29.159 We've used the lack of deference in enforcement actions and 1190 00:58:29.280 --> 00:58:33.280 sort of when an agency is pursuing investigations and enforcement 1191 00:58:33.360 --> 00:58:36.639 work using some kind of novel theory, you know, there's 1192 00:58:36.679 --> 00:58:39.000 a question whether, Okay, if we really wanted to fight 1193 00:58:39.119 --> 00:58:41.199 you on this. We think we could win because you 1194 00:58:41.320 --> 00:58:43.599 have the you do not have the right interpretation of 1195 00:58:43.639 --> 00:58:46.760 the statute. And I have seen that kind of calibrating 1196 00:58:46.880 --> 00:58:49.960 some of the power dynamic in those investigations. I think 1197 00:58:50.000 --> 00:58:51.400 it'll be interesting to see. 1198 00:58:51.599 --> 00:58:54.440 After jerk Cy sort of works its way out. 1199 00:58:54.719 --> 00:58:57.400 Like I think there's just a lot of uncertainties right 1200 00:58:57.440 --> 00:58:59.239 now in all of these incentives and sort of the 1201 00:58:59.320 --> 00:59:02.480 tools the agency have. But I've seen lower bright concern, 1202 00:59:03.639 --> 00:59:06.599 you know, moderate some of the interpretive issues that we 1203 00:59:06.880 --> 00:59:08.079 confront an enforcement action. 1204 00:59:08.639 --> 00:59:10.239 I want to we got it just a few minutes 1205 00:59:10.239 --> 00:59:11.679 stuff I want to Did you want to jump in 1206 00:59:11.840 --> 00:59:13.559 or no? I want to zoom out a bit here 1207 00:59:13.760 --> 00:59:15.840 and kind of you know, at the court right now, 1208 00:59:15.880 --> 00:59:18.400 you have two different moves going on in the administrat 1209 00:59:18.760 --> 00:59:21.079 One you have the unitary executive move right that the 1210 00:59:21.159 --> 00:59:25.079 president needs to control all the agencies at least their 1211 00:59:25.119 --> 00:59:29.280 final decisions. And then you have kind of this non 1212 00:59:29.360 --> 00:59:32.639 anti administrative is move right, and on the anti administrators 1213 00:59:32.719 --> 00:59:34.719 move I kind of and and those I actually think 1214 00:59:34.760 --> 00:59:37.199 are consistent, like president should be able to control whatever 1215 00:59:37.239 --> 00:59:40.039 the president's power has from Congress, the constitution. That makes sense. 1216 00:59:40.679 --> 00:59:42.760 But on the on the on the second one, though, 1217 00:59:42.800 --> 00:59:45.360 there is this don't maybe I'll use the word vibes 1218 00:59:45.519 --> 00:59:48.559 at the court of we don't want presidents to be 1219 00:59:48.599 --> 00:59:52.199 able to change positions very easily, like this kind of 1220 00:59:52.280 --> 00:59:55.440 anti you know, anti flip flopping they might call it. 1221 00:59:55.519 --> 00:59:56.960 And I kind of wonder maybe I'll kind of throw 1222 00:59:57.000 --> 00:59:59.519 this to room on like, how do you see that plan? 1223 00:59:59.519 --> 01:00:01.360 I mean, right, it's one of those it's strange to 1224 01:00:01.440 --> 01:00:03.239 say that because it's going to make a lot of 1225 01:00:03.480 --> 01:00:06.199 change right now, but eventually it's going to lock in interpretations. 1226 01:00:06.239 --> 01:00:08.159 So it's harder for agents at the flip to a 1227 01:00:08.159 --> 01:00:10.400 different position when there's a change administration. But do you 1228 01:00:10.480 --> 01:00:12.920 see other places where kind of court where the spring 1229 01:00:13.000 --> 01:00:14.440 court's doing that. How do you think that's going to 1230 01:00:14.480 --> 01:00:14.800 play out? 1231 01:00:14.840 --> 01:00:16.840 Well, I think that I think they don't like flip 1232 01:00:16.920 --> 01:00:21.639 flops because the flip flops look like I think they 1233 01:00:21.679 --> 01:00:24.320 don't like flip flops because the flip flops have are 1234 01:00:24.440 --> 01:00:27.480 often being historically been justified by the agencies as like, well, 1235 01:00:27.480 --> 01:00:29.199 we have a different view of the law and you 1236 01:00:29.320 --> 01:00:31.760 have to defer to us on our new interpretation. And 1237 01:00:31.840 -->

01:00:33.880 that just feels like it's a game because the law 1238 01:00:33.920 --> 01:00:35.880 has not changed. And I think if you come at 1239 01:00:35.880 --> 01:00:38.920 the law with a more formalist perspective that there's there's 1240 01:00:38.960 --> 01:00:42.559 one right answer, one best answer, then it's just incongruent 1241 01:00:42.599 --> 01:00:44.920 and inconsistent with that to allow an agency to kind 1242 01:00:44.960 --> 01:00:47.599 of like go back and forth and claims it's acting 1243 01:00:47.679 --> 01:00:49.639 lawfully when it says X and then when it says 1244 01:00:49.639 --> 01:00:51.519 the opposite of X at the same time. And so 1245 01:00:51.559 --> 01:00:53.760 I think that's a concern. I think there's also a 1246 01:00:53.920 --> 01:00:58.639 concern about settled expectations reliance interests. I think, you know, 1247 01:00:58.920 --> 01:01:01.039 there are a couple cases this here, including one that 1248 01:01:01.079 --> 01:01:03.880 I was involved with, that you know, involves the issue 1249 01:01:03.920 --> 01:01:07.440 of to what extent can you rely if the agency 1250 01:01:07.559 --> 01:01:10.000 changes its mind and you've acted in reliance on their 1251 01:01:10.039 --> 01:01:14.360 earlier statements. Is there a due process problem with that? 1252 01:01:14.559 --> 01:01:16.719 You know, if the agency tries to enforce some interpretation 1253 01:01:16.880 --> 01:01:19.320 against you when they had told you it was okay before. 1254 01:01:19.639 --> 01:01:21.719 So I think the court is attuned to that, and 1255 01:01:21.880 --> 01:01:27.239 is is you know, appropriately worried about agencies taking advantage 1256 01:01:27.360 --> 01:01:31.239 of their power to to you know, change their mind 1257 01:01:31.320 --> 01:01:33.039 on things. That said, I do think at the end 1258 01:01:33.039 --> 01:01:35.760 of the day, if we're talking about something that an 1259 01:01:35.800 --> 01:01:38.159 agency is empowered to do because it has the right 1260 01:01:38.239 --> 01:01:40.760 to make a policy choice. I think that this court 1261 01:01:40.920 --> 01:01:42.719 is going to recognize that, you know, if you have 1262 01:01:43.199 --> 01:01:46.599 the Trump administration come in or the or you know 1263 01:01:46.920 --> 01:01:50.000 that the Newsom administration come in, like, there is a 1264 01:01:50.719 --> 01:01:53.400 realm in which the policies can and should change. And 1265 01:01:53.440 --> 01:01:55.239 that's part of what's driving their view on the unitary 1266 01:01:55.320 --> 01:01:57.159 executive thing, which is that you know, if you have 1267 01:01:57.239 --> 01:01:59.280 a new president, they should be able to be in 1268 01:01:59.400 --> 01:02:02.639 charge of legitimate powers of the executive branch, including in 1269 01:02:02.719 --> 01:02:04.199 the area of agency action. 1270 01:02:04.679 --> 01:02:07.199 Yeah, I will flag on that front. There is kind 1271 01:02:07.199 --> 01:02:08.599 of an

and I think this is going to be 1272 01:02:08.920 --> 01:02:12.559 continue to develop. More than as much as the questions 1273 01:02:12.559 --> 01:02:15.000 we've just covered, is when we get into where Maria 1274 01:02:15.079 --> 01:02:18.320 is talking about with policy, when the best of statute 1275 01:02:18.400 --> 01:02:21.199 is that the agency has policy making discretion, you are 1276 01:02:21.320 --> 01:02:23.840 saying what Justice Alito now calls the agency change of 1277 01:02:23.880 --> 01:02:26.360 position doctrine. Right, So even when we get to policy 1278 01:02:26.480 --> 01:02:29.360 under the Industry Procedure Act, before we used to say 1279 01:02:29.599 --> 01:02:31.119 you could do the same or at least you know, 1280 01:02:31.199 --> 01:02:34.480 FOX or FCC like you can do the same, and 1281 01:02:34.599 --> 01:02:37.920 now it's no like you got to look at reliance interests. 1282 01:02:38.039 --> 01:02:40.760 You got to see other reasonable alternatives to just change 1283 01:02:40.880 --> 01:02:43.599 the policy, You've got to see are you grappling with 1284 01:02:43.679 --> 01:02:46.440 the prior record. And it's interesting to see that even 1285 01:02:46.480 --> 01:02:48.920 on the policy stuff you got the court doing that. 1286 01:02:49.039 --> 01:02:51.519 Now does that still all the change of policy? Absolutely, 1287 01:02:51.719 --> 01:02:54.079 you just have to recognize they have to jump through. 1288 01:02:54.880 --> 01:02:56.880 And in particular, I think reliance is going to be 1289 01:02:56.920 --> 01:02:59.239 one of the key key points you're going to see 1290 01:02:59.239 --> 01:03:01.519 on the policy. How much is the industry or the 1291 01:03:01.559 --> 01:03:02.800 regulated public doing that? 1292 01:03:03.559 --> 01:03:05.480 And yes, I wonder if it puts a thumb on 1293 01:03:05.559 --> 01:03:08.760 the scale towards changes in position that are deregulatory, because 1294 01:03:08.800 --> 01:03:12.840 the reliance interests that the regulated public may have in 1295 01:03:13.000 --> 01:03:15.440 like having to comply with all of these you know, 1296 01:03:16.320 --> 01:03:17.639 sort of difficult. 1297 01:03:17.239 --> 01:03:19.119 Requirements burdens some requirements. 1298 01:03:20.360 --> 01:03:23.000 You don't really worry that they're going to be upset 1299 01:03:23.320 --> 01:03:25.800 or feel slighted if they get rid of those rules. 1300 01:03:25.880 --> 01:03:27.079 But of course if it goes in the. 1301 01:03:27.079 --> 01:03:30.320 Opposite direction and they've built an entire business around having 1302 01:03:30.360 --> 01:03:32.599 permission to do things a certain way and it changes, 1303 01:03:32.760 --> 01:03:34.760 then the reliance interests look a lot more serious. So 1304 01:03:35.199 --> 01:03:36.760 you also just wonder if it'll play out. 1305 01:03:36.960 --> 01:03:39.559 Yeah, and so do like alternatives. I mean it does 1306 01:03:39.679 --> 01:03:41.360 kind of structure in a way to kind of take 1307 01:03:41.360 --> 01:03:45.079 into account a yeah, reliance, Yeah, Adams tullness. 1308 01:03:45.119 --> 01:03:45.480 We're up. 1309 01:03:45.679 --> 01:03:48.559 So thanks, well, thank you everybody. 1310 01:03:48.559 --> 01:03:50.559 I want to say before we close this session, if 1311 01:03:50.599 --> 01:03:54.159 you came in late, the video and audio for all 1312 01:03:54.199 --> 01:03:57.079 of today's sessions will be released by the Grace Center 1313 01:03:57.119 --> 01:03:58.559 in the weeks ahead, so you'll be able to see 1314 01:03:58.599 --> 01:04:00.800 what you missed where we go. I just want to 1315 01:04:00.840 --> 01:04:01.719 add two more points. 1316 01:04:01.800 --> 01:04:04.679 First of all, a great place to stay abreast of 1317 01:04:04.880 --> 01:04:08.800 these trends around the aftermath of Overbright is the Recasting 1318 01:04:08.920 --> 01:04:12.360 Regulations newsletter that AFP puts out a lot of good 1319 01:04:12.400 --> 01:04:13.159 resources there. 1320 01:04:13.519 --> 01:04:15.800 If you can't get enough of this stuff, and who can't, 1321 01:04:16.519 --> 01:04:18.679 be sure to look up Chris Walker's most recent paper 1322 01:04:19.000 --> 01:04:23.039 titled Proportionality and Administrative Law. It's very, very very interesting 1323 01:04:23.079 --> 01:04:25.079 to look at what's been happening recently, and it's even 1324 01:04:25.119 --> 01:04:27.679 more exciting than the title makes it sound. 1325 01:04:30.920 --> 01:04:33.159 Please that title is pull tested. 1326 01:04:34.960 --> 01:04:39.599 Yeah, yeah, well, please please read this paper and please 1327 01:04:39.679 --> 01:04:40.960 join me in thanking Chris. 1328 01:04:40.920 --> 01:04:41.920 And our guests. 1329 01:04:45.199 --> 01:04:47.599 And to our podcast audience. So you can still send 1330 01:04:47.719 --> 01:04:51.039 us emails with your questions and comments to C. S. 1331 01:04:51.440 --> 01:04:55.480 A s at GMU dot e edu. We read all 1332 01:04:55.519 --> 01:04:57.559 of them and work to make this the best show 1333 01:04:57.639 --> 01:05:00.599 it can be. If you like what you've heard here today, 1334 01:05:00.760 --> 01:05:03.599 please consider sharing the episode with a friend and leaving 1335 01:05:03.679 --> 01:05:06.039 us a five star review wherever you're listening so we 1336 01:05:06.119 --> 01:05:09.440 can keep bringing you more conversations like this one. And 1337 01:05:09.519 --> 01:05:12.000 if you'd like to stay on top of our latest research, papers, 1338 01:05:12.039 --> 01:05:14.679 and events, sign up for our email list by clicking 1339 01:05:14.719 --> 01:05:16.119 the link in our show notes