Judging After Loper Bright: täielik transkriptsioon

Law, and he was a high ranking official in 73 00:03:52.439 --> 00:03:57.560 the first Trump administration. Any clerk for Justice Alito. Judge 74 00:03:57.680 --> 00:04:02.080 Row was also used to be a professor at Mason. 75 00:04:02.879 --> 00:04:04.919 She also was a high ranking official in the first 76 00:04:04.960 --> 00:04:08.439 Trump administration. She was head of Leleira and she previously 77 00:04:08.479 --> 00:04:12.319 clerk for Justice Thomas. But I'm gonna say something different 78 00:04:12.319 --> 00:04:14.759 about both of you. I like to say this about 79 00:04:14.800 --> 00:04:18.319 our whenever we have guests, is like a nice thing 80 00:04:18.360 --> 00:04:22.759 about them. And twenty years ago, I was an intern 81 00:04:23.120 --> 00:04:23.920 for Judge. 82 00:04:23.680 --> 00:04:25.399 Row in the White House. 83 00:04:25.680 --> 00:04:28.399 She was my boss, and Judge Row is one of 84 00:04:28.439 --> 00:04:30.120 the best bosses I've ever had. 85 00:04:30.600 --> 00:04:32.120 We had a lot of fun together. 86 00:04:33.000 --> 00:04:35.199 So when I was going on to get to try 87 00:04:35.240 --> 00:04:37.399 to get a clerkship. She was my clerkship letter writer, 88 00:04:38.160 --> 00:04:40.480 so we had been friends forever for so week. 89 00:04:41.480 --> 00:04:44.079 Yeah well, yeah, well we'll talk about that. 90 00:04:44.839 --> 00:04:48.319 And then while I was clerking, I met Judge Mnashy. 91 00:04:48.879 --> 00:04:51.120 I was clerking for Judge Janice Rogers Brown and he 92 00:04:51.240 --> 00:04:53.480 was clerking for Judge Doug Ginsburg, who we just saw 93 00:04:53.600 --> 00:04:57.079 earlier today. And I will say among the clerks, we 94 00:04:57.160 --> 00:05:01.160 all knew that Judge Mnashi was gonna go something famous 95 00:05:01.879 --> 00:05:05.360 because he was so scholarly, even among the clerks, and 96 00:05:05.439 --> 00:05:08.000 we're a very nerdy bunch, and even then he's like, 97 00:05:08.000 --> 00:05:13.360 oh wow, like Steve and Judge Vanashi was like so 98 00:05:13.600 --> 00:05:16.240 far into it in ways that we all learned from. 99 00:05:16.279 --> 00:05:18.439 So I'm just grateful to be here for both of you. 100 00:05:18.680 --> 00:05:20.800 And today we're going to talk about judging after a 101 00:05:20.839 --> 00:05:23.360 lower bride, in other words, in the world where no 102 00:05:23.439 --> 00:05:27.199 more Chevron deference. So we thought it'd be interesting to 103 00:05:27.240 --> 00:05:29.000 hear from a judge on the second circuit and a 104 00:05:29.079 --> 00:05:30.759 judge on the DC Circuit. 105 00:05:30.639 --> 00:05:31.720 And how it's going. 106 00:05:32.560 --> 00:05:34.439 So I'm gonna start with just a general kind of 107 00:05:34.439 --> 00:05:38.560 table setting question, which is like how do you do interpretation, 108 00:05:38.959 --> 00:05:41.000 like just your just do we know of the audience, like, 109 00:05:41.279 --> 00:05:44.040 what is your approach to interpretation generally, and then we 110 00:05:44.040 --> 00:05:45.720 can see how that fits into. 111 00:05:45.639 --> 00:05:46.879 Chevron and lower Bride. 112 00:05:47.040 --> 00:05:51.959 So we'll start, I guess with you, Judge Vanashi, Well, 113 00:05:51.959 --> 00:05:52.639 thanks very much. 114 00:05:52.920 --> 00:05:55.480 That was very gracious, and I'm delighted to be here. 115 00:05:56.439 --> 00:05:59.399 It's good to be back at school of law school 116 00:05:59.560 --> 00:06:03.360 sort of in this hotel, but I'm delighted to be 117 00:06:03.439 --> 00:06:06.040 part of it. In terms of, you know, how you 118 00:06:06.079 --> 00:06:08.680 approach tatutory interpretation questions, I kind of thought it would 119 00:06:08.720 --> 00:06:12.399 be less interesting to just say we're all textualists who 120 00:06:12.439 --> 00:06:14.199 start with the text and focus on it. So I 121 00:06:14.199 --> 00:06:17.120 thought maybe i'd sort of point out some areas where 122 00:06:17.160 --> 00:06:19.040 there might be disagreements even among. 123 00:06:18.800 --> 00:06:21.399 Textualists, but I have a view. 124 00:06:21.519 --> 00:06:23.879 So one of them is so, of course you do 125 00:06:23.959 --> 00:06:26.199 start with the text of the text is what is controlling, 126 00:06:26.720 --> 00:06:29.439 you know, but context also matters a lot, right, So 127 00:06:29.480 --> 00:06:32.800 there's Sam Bray wrote an article I really like about 128 00:06:32.800 --> 00:06:35.360 the mischief rule about what the mischief is that the 129 00:06:35.439 --> 00:06:37.040 legislature was trying to get at. I think that that 130 00:06:37.120 --> 00:06:40.560 is a legitimate thing for somebody to think about and 131 00:06:40.639 --> 00:06:43.519 understanding the meaning of a text, you know, the mischief 132 00:06:43.519 --> 00:06:48.439 against which it was directed. Two is it is coherent 133 00:06:48.560 --> 00:06:51.319 talk about statutory purpose. You don't override a text with 134 00:06:51.360 --> 00:06:54.560 an unenacted purpose that you discover in the legisative history, 135 00:06:54.600 --> 00:06:56.720 but it is you do. The statute is meant to 136 00:06:56.759 --> 00:07:00.279 accomplish something and has to be coherent overall. I think 137 00:07:00.279 --> 00:07:03.079 that you do think about statutory purpose to some extent. 138 00:07:04.160 --> 00:07:07.959 Three is you know legislative history. As I just mentioned, 139 00:07:08.079 --> 00:07:11.199 there are very improper uses of it. But I tend 140 00:07:11.240 --> 00:07:12.920 to think if you're willing to look at the federalist 141 00:07:12.959 --> 00:07:15.319 papers to understand the meaning of the Constitution, there might 142 00:07:15.360 --> 00:07:21.399 be some cases in which the contemporaneous legislative history could 143 00:07:21.480 --> 00:07:26.000 illuminate how the language of the statute was understood. You know, 144 00:07:26.040 --> 00:07:29.079 I do think that the Justice Scalia

prohibition and legislative 145 00:07:29.120 --> 00:07:32.600 history is generally prophylactic. I think actually it was Justice 146 00:07:32.600 --> 00:07:36.800 Alito who said at some point that Justice Scalia told 147 00:07:36.879 --> 00:07:39.759 judges to avoid legislative history of the way you tell 148 00:07:39.759 --> 00:07:41.920 an alcoholic to avoid alcohol. 149 00:07:43.000 --> 00:07:45.560 I meaning that it is pretty prophylactic because there are 150 00:07:46.120 --> 00:07:47.160 very bad uses of it. 151 00:07:47.240 --> 00:07:49.920 But I don't know if there needs to be categorically 152 00:07:49.920 --> 00:07:50.560 off the table. 153 00:07:51.040 --> 00:07:51.439 And I guess. 154 00:07:51.480 --> 00:07:54.519 The fourth thing that occurs to me is sometimes this 155 00:07:54.600 --> 00:08:00.560 goes under the heading of legal versus ordinary meaning. Sometimes 156 00:08:00.560 --> 00:08:04.759 you read some textualists and you'd think, generally you just 157 00:08:04.879 --> 00:08:08.600 do the ordinary language linguistic meaning of the statute. But 158 00:08:08.639 --> 00:08:10.759 then there are some exceptions when there's a legal term 159 00:08:10.800 --> 00:08:13.680 of art or legal terms, and I tend to think 160 00:08:13.720 --> 00:08:18.160 that legal language is more pervasive. And ultimately, our goal 161 00:08:18.240 --> 00:08:20.680 is to determine the law that the text creates, and 162 00:08:20.720 --> 00:08:23.920 sometimes that means it's not exactly what the linguistic meaning 163 00:08:24.000 --> 00:08:28.160 of the text is. So so anyway, so I do 164 00:08:28.680 --> 00:08:31.079 think that we are rooted in the text, but those 165 00:08:31.079 --> 00:08:33.919 are some areas where there's some disagreements, even among self 166 00:08:33.960 --> 00:08:35.000 described textualists. 167 00:08:35.080 --> 00:08:37.000 Yeah, it's very helpful. I think we're going to have 168 00:08:37.039 --> 00:08:39.759 a theme today, which is that Steve and I are 169 00:08:39.759 --> 00:08:42.159 going to agree on a lot of things. So Aaron, 170 00:08:42.200 --> 00:08:43.759 your job will be to try to find areas where 171 00:08:43.759 --> 00:08:46.559 maybe we don't agree. But I very much take all 172 00:08:46.559 --> 00:08:50.240 the things that you said, you know, in general, I 173 00:08:50.320 --> 00:08:54.320 start with the text. I often read not just the 174 00:08:54.360 --> 00:08:57.480 provisions that are issued, but the entire public law that 175 00:08:57.519 --> 00:08:59.840 the provision is a part of. Right looking at the structure. 176 00:09:00.759 --> 00:09:04.039 Oftentimes you get meaning from looking at all the pieces together. 177 00:09:04.679 --> 00:09:08.960 And I taught a taught statutory interpretation for I think 178 00:09:09.000 --> 00:09:11.120 almost eleven years at George Mason, and I used to 179 00:09:11.120 --> 00:09:13.080 say to my students, and I think I believe this 180 00:09:13.159 --> 00:09:16.039 even

more now as a judge, which is that interpretation 181 00:09:16.519 --> 00:09:18.919 is in part science, but a lot of it is 182 00:09:19.360 --> 00:09:22.919 an art. And you know, in Lopra Bright, the Supreme 183 00:09:22.960 --> 00:09:25.039 Court says we have to find the best meaning of 184 00:09:25.080 --> 00:09:28.080 the statute. And I agree very much with Steve that 185 00:09:28.080 --> 00:09:31.559 that often requires not just being you know, kind of 186 00:09:31.559 --> 00:09:34.480 a high bound literalist as to, you know, looking up 187 00:09:34.480 --> 00:09:37.279 the words in the dictionary, but really thinking about what 188 00:09:37.320 --> 00:09:40.919 the words mean in context. You know, what was what 189 00:09:41.000 --> 00:09:43.120 is this law trying to do? You know, are there 190 00:09:43.120 --> 00:09:47.360 any constitutional or common law backdrops that inform the meaning 191 00:09:47.360 --> 00:09:50.159 of the statute. And you really need to think of 192 00:09:50.240 --> 00:09:54.039 all of those things together to find ultimately the best 193 00:09:54.080 --> 00:09:57.480 meaning of the law. So even I think for people 194 00:09:57.480 --> 00:10:01.120 who are committed formalists and committed textual there's a fair 195 00:10:01.159 --> 00:10:04.000 amount of judgment that's involved. And I think if you 196 00:10:04.080 --> 00:10:08.320 read Justice Gale's opinions, not necessarily his essays or speeches. 197 00:10:08.840 --> 00:10:11.200 You can see that. You can see the kind of 198 00:10:11.320 --> 00:10:15.480 judgment he applied statutory interpretation, which is often much more 199 00:10:15.679 --> 00:10:18.639 wide ranging than you know. Just read the text, Read 200 00:10:18.679 --> 00:10:19.720 the text, Read the text. 201 00:10:19.879 --> 00:10:23.039 All right, Well, I guess we'll get into Chevron Loperbright 202 00:10:23.080 --> 00:10:26.000 in a second. But on this subject you will see 203 00:10:26.240 --> 00:10:29.200 different judges who will say, well, all right, you've just 204 00:10:29.240 --> 00:10:32.120 put everything in the mix. I'm much more going to 205 00:10:32.120 --> 00:10:36.200 be look at the purpose with this lot supposed to accomplish. 206 00:10:36.279 --> 00:10:37.000 Do we want that? 207 00:10:37.080 --> 00:10:39.279 Do we want all judges to be having the same 208 00:10:39.759 --> 00:10:44.559 general not just broad theory, but like how they actually 209 00:10:44.600 --> 00:10:46.120 do it. Do we want all judges to do the 210 00:10:46.120 --> 00:10:48.840 same or do we want pluralism and how judges are 211 00:10:48.879 --> 00:10:52.039 trying to read things? Like what I mean, if everybody 212 00:10:52.080 --> 00:10:54.279 is doing the same way, we're seeing the same answers 213 00:10:54.639 --> 00:10:58.200 on all of the questions. So what's going on? Explained? 214 00:11:00.039 --> 00:11:02.559 Different answers because sometimes the questions are hard. I mean, 215 00:11:02.639 --> 00:11:03.919 sometimes you do have to. 216 00:11:03.879 --> 00:11:05.639 Do but are we all doing the same thing? Are 217 00:11:05.759 --> 00:11:07.679 like your colleagues doing the same thing? 218 00:11:07.679 --> 00:11:10.159 As a practical matter, not everybody is doing the same thing. 219 00:11:10.200 --> 00:11:14.799 I think not everybody agrees on the method, right, So 220 00:11:15.039 --> 00:11:18.960 like I do think that the move toward textualism has 221 00:11:19.879 --> 00:11:22.279 changed the kind of outer boundaries. Like sometimes you read 222 00:11:22.279 --> 00:11:25.000 opinions from the DC circuit in the nineteen seventies and 223 00:11:25.039 --> 00:11:27.600 they're like from a different world, Like there is a 224 00:11:27.679 --> 00:11:29.840 disregard of the text that I don't think is possible. 225 00:11:29.879 --> 00:11:34.639 Now everybody roots their answers, you know, at least in 226 00:11:34.679 --> 00:11:37.480 the text, but a lot of judges might resort to 227 00:11:37.519 --> 00:11:41.039 ambiguity much more quickly than other judges. They might say, well, 228 00:11:41.080 --> 00:11:43.879 the text is actually ambiguous, not because of something in 229 00:11:43.879 --> 00:11:46.720 the text, but because I think Congress had this purpose 230 00:11:46.759 --> 00:11:48.840 and the purpose doesn't seem to match the text, and 231 00:11:48.879 --> 00:11:51.080 that's ambiguous, then I'm going to use some other principle. 232 00:11:51.360 --> 00:11:54.960 And so you know that's not exactly textualism, even the fly. 233 00:11:54.879 --> 00:11:57.360 Under that banner. So I do think there is a 234 00:11:57.440 --> 00:11:59.639 diversity of a substantive approaches. 235 00:11:59.679 --> 00:12:01.600 So there's lot of agreement, but then you're going to 236 00:12:01.639 --> 00:12:04.399 have disagreements even because as Nao and I just said, 237 00:12:04.720 --> 00:12:07.000 like a lot of it is more hard than science, 238 00:12:07.000 --> 00:12:09.519 and so people like comes to different conclusions even if 239 00:12:09.519 --> 00:12:12.399 they agreed on the methodological principles. 240 00:12:12.919 --> 00:12:16.039 Yeah, I think one difference is and I agree with 241 00:12:16.080 --> 00:12:19.960 Steve that not everyone is maybe a true textualist. Right, 242 00:12:20.000 --> 00:12:22.960 So Justice Kagan famously said we're all textualists now, but 243 00:12:23.720 --> 00:12:26.360 I'm not sure that all the lower court judges have 244 00:12:26.399 --> 00:12:30.440 gotten that memo from Justice Kagan. So I think one 245 00:12:30.440 --> 00:12:32.480 of the differences is is you know, you mentioned that 246 00:12:32.519 --> 00:12:34.399 we said there are a number of sources that go 247 00:12:34.480 --> 00:12:38.200 into finding meaning. I think maybe one of the main 248 00:12:38.279 --> 00:12:42.720 differences is do you use those other sources to get 249 00:12:42.759 --> 00:12:45.200 at the meaning of the text of the

statute, which 250 00:12:45.240 --> 00:12:46.720 is what I would say we should do. Right? Is 251 00:12:46.759 --> 00:12:48.799 this a common law term? What is the common law 252 00:12:48.840 --> 00:12:53.559 meaning versus looking at sources maybe outside the text, you know, 253 00:12:53.720 --> 00:12:56.840 public policy? Does this make sense? Is it consistent with 254 00:12:56.879 --> 00:13:00.320 the broader purpose of the statue or with some you know, 255 00:13:00.440 --> 00:13:04.600 preferred outcome. And I think that is a big difference 256 00:13:04.679 --> 00:13:08.799 in how people are doing this enterprise of interpretation. 257 00:13:09.159 --> 00:13:12.919 Yeah, the kind of the classical distinction between textualism and purposeivism. 258 00:13:13.000 --> 00:13:15.679 And I guess as it's been explained is the textualist 259 00:13:15.759 --> 00:13:18.919 gives priority to the semantic content of the text because 260 00:13:18.960 --> 00:13:21.600 they say, well, the text is the vehicle by which, 261 00:13:22.039 --> 00:13:24.960 you know, you could have the democratic process operate. Maybe 262 00:13:25.759 --> 00:13:28.559 people in the minority extracted some kind of concession to 263 00:13:28.600 --> 00:13:31.120 the text and some kind of compromise, and the vehicle 264 00:13:31.120 --> 00:13:35.000 by which they couldn't negotiate is the precision of the text, 265 00:13:35.039 --> 00:13:37.240 which might go so far but not further in the 266 00:13:37.320 --> 00:13:39.679 pursuit of some kind of goal based on that kind 267 00:13:39.679 --> 00:13:43.960 of give and take. And I think the purposivist says, 268 00:13:44.759 --> 00:13:47.679 you know, not unreasonably. Come on, people don't really think 269 00:13:47.720 --> 00:13:50.000 about the text that way. You know, they were trying 270 00:13:50.000 --> 00:13:52.039 to achieve some kind of policy, and so they would 271 00:13:52.080 --> 00:13:55.559 prioritize the policy content over it, you know, over the 272 00:13:55.600 --> 00:13:58.759 semantic content, because they don't really believe that anybody parses 273 00:13:58.759 --> 00:14:00.200 the text. 274 00:14:00.360 --> 00:14:01.799 I think that's the basic disagreement. 275 00:14:01.840 --> 00:14:05.120 And even if there aren't as many people who go 276 00:14:05.200 --> 00:14:08.279 around calling themselves non textualists like I think that that 277 00:14:08.440 --> 00:14:10.919 still is a delighting line among judges. 278 00:14:11.159 --> 00:14:14.240 Okay, so now we come to Chevron, on which for 279 00:14:14.600 --> 00:14:18.080 decades the familiar two step process or by the end 280 00:14:18.159 --> 00:14:21.000 like eight steps. But we had the rule, you know, 281 00:14:21.120 --> 00:14:26.399 is there an ambiguity. If so, is the agency's interpretation reasonable. 282 00:14:27.159 --> 00:14:29.039 Lower Bright comes along and says, no, no, no, we're 283 00:14:29.039 --> 00:14:29.559 not doing that. 284 00:14:29.600 --> 00:14:30.080 Anymore. 285 00:14:30.639 --> 00:14:30.720 So. 286 00:14:30.759 --> 00:14:32.559 I guess the question that I have for the two 287 00:14:32.559 --> 00:14:34.360 of you is, I mean, what do you think of 288 00:14:34.440 --> 00:14:37.240 lowber Bright itself as a judicial opinion? I know you're 289 00:14:37.480 --> 00:14:40.080 follow it regardless, but what do you think was it right? 290 00:14:40.240 --> 00:14:40.799 Was it wrong? 291 00:14:41.279 --> 00:14:43.240 What do you think of the Court's analysis in the 292 00:14:43.279 --> 00:14:43.960 case itself? 293 00:14:45.039 --> 00:14:47.759 I mean, I think lowper Bright was a great decision, 294 00:14:48.960 --> 00:14:53.159 maybe no surprise to me. Lower Bright was maybe less 295 00:14:53.159 --> 00:14:55.879 of a c change than some people made it out 296 00:14:55.879 --> 00:14:57.639 to be. I mean, I think Loper Bright sort of 297 00:14:57.879 --> 00:15:01.639 described what the court was. The Court hadn't applied Chevron 298 00:15:01.720 --> 00:15:04.759 in some whatever eight or ten years before it decided Loperbright, 299 00:15:04.879 --> 00:15:08.840 and frankly, in my work, I didn't. I'm not sure 300 00:15:08.840 --> 00:15:11.480 if I've ever cited Chevron in any of my cases. 301 00:15:12.360 --> 00:15:15.360 And it seems to me that Loper Bright describes the 302 00:15:15.399 --> 00:15:17.919 way that we should be looking at agency action, which 303 00:15:17.960 --> 00:15:21.720 is there's first a question of you know, there's a 304 00:15:21.759 --> 00:15:24.559 question like does the statute allow the agency to do 305 00:15:24.799 --> 00:15:27.279 what it did right? And what's the best meaning of 306 00:15:27.320 --> 00:15:29.799 the statute? Does it give the agency this authority? And 307 00:15:29.840 --> 00:15:33.200 maybe properly understood that was always how Chevron Step one 308 00:15:33.240 --> 00:15:36.799 was supposed to work. So to me, that that idea, 309 00:15:37.039 --> 00:15:40.960 and I think an idea that's repeated throughout Loperbright, which 310 00:15:41.000 --> 00:15:43.559 is that the judiciary is independent and it has an 311 00:15:43.559 --> 00:15:48.159 independent Article three obligation and responsibility to say what the 312 00:15:48.240 --> 00:15:51.399 law is. Means that you can't defer to the executive 313 00:15:51.399 --> 00:15:56.240 branch on legal interpretation. And that seems to me entirely 314 00:15:56.240 --> 00:15:59.519 correct and consistent with the text and structure of the Constitution. 315 00:16:00.320 --> 00:16:02.000 Yeah, I mean, in a way, you know, it's a 316 00:16:02.039 --> 00:16:05.759 pretty the modest decision. It didn't say it's unconstitutional for 317 00:16:05.840 --> 00:16:11.000 Congress to make delegations to agencies. It just said, Chevron 318 00:16:11.039 --> 00:16:14.320 relandimus presumption that whenever there's an ambiguity in a statute 319 00:16:14.639 --> 00:16:17.519 that itself is a delegation, that Congress

wouldn't have wanted 320 00:16:17.919 --> 00:16:20.279 the ambiguity resolved by the agency. And that's just an 321 00:16:20.360 --> 00:16:24.480 unjustified presumption. Right, So the Congress said, and the APA 322 00:16:24.559 --> 00:16:26.720 the course decide questions of law. That is a question 323 00:16:26.759 --> 00:16:29.240 of law, and so the default rule is maybe Congress 324 00:16:29.240 --> 00:16:31.360 should decide that question. I mean, the way I had 325 00:16:31.360 --> 00:16:34.799 always thought about chev Run difference is that there's sort 326 00:16:34.799 --> 00:16:38.240 of two basic kinds of cases. There's one case where 327 00:16:38.320 --> 00:16:42.879 Congress uses a word like reasonable, like tells the agency 328 00:16:42.919 --> 00:16:45.279 put the transmitters a reasonable distance from each other. 329 00:16:45.320 --> 00:16:46.600 And then when somebody comes in. 330 00:16:46.519 --> 00:16:49.519 And says, well, the agency is acting unlawfully because they 331 00:16:49.559 --> 00:16:52.120 put them fifteen feet apart instead of twenty feet apart, 332 00:16:54.120 --> 00:16:56.240 you know, is that right? And the truth is you 333 00:16:56.240 --> 00:17:00.279 don't really need a special doctrine for that, because what 334 00:17:00.279 --> 00:17:02.960 the agency is doing, it's not interpreting the word reasonable 335 00:17:03.000 --> 00:17:05.599 to mean fifteen feet or twenty feet. It's just acting 336 00:17:05.640 --> 00:17:09.599 within a kind of range of implementation authority that Congress 337 00:17:09.599 --> 00:17:12.400 has left unspecified. So the person should fail set claim 338 00:17:12.720 --> 00:17:15.240 if this action doesn't dictate that it's fifteen rather than 339 00:17:15.240 --> 00:17:18.319 twenty feet, and so there wasn't really a need for 340 00:17:18.359 --> 00:17:20.359 it in that case. Then there's another kind of case 341 00:17:20.359 --> 00:17:24.079 where everybody agrees that Congress has spoken to the issue, 342 00:17:24.079 --> 00:17:26.799 like there's some kind of specific text on point, and 343 00:17:26.839 --> 00:17:29.480 you think that Congress had an answer in mind, but 344 00:17:29.599 --> 00:17:32.720 people are disputing have best to interpret it. And in 345 00:17:32.759 --> 00:17:35.200 that kind of case, there's no reason to think that 346 00:17:35.240 --> 00:17:37.759 Congress would have wanted the agency to decide like they 347 00:17:37.759 --> 00:17:41.079 weren't leaving something unspecified. They had in mind some kind 348 00:17:41.119 --> 00:17:43.880 of an answer and so that's the kind of case 349 00:17:43.880 --> 00:17:46.839 that courts should address. And I kind of think Lilber 350 00:17:46.920 --> 00:17:51.039 Bright says in that kind of case, there's no reason 351 00:17:51.079 --> 00:17:54.240 to think that there's a delegation to the agency. The 352 00:17:54.279 --> 00:17:57.240 presumption is that Congress would have wanted the courts to 353 00:17:57.240 -->

00:17:59.880 decide that question and to enforce whatever the answer was 354 00:17:59.880 --> 00:18:03.160 that Congress wanted. And then the other kind of case, 355 00:18:03.160 --> 00:18:06.119 where it's open textured or there's an express delegation of 356 00:18:06.160 --> 00:18:08.759 the agency to define a term or something, that's just 357 00:18:08.799 --> 00:18:14.359 what the statute means, and you can enforce it by, 358 00:18:14.519 --> 00:18:17.759 you know, making sure that the agency is acting within 359 00:18:17.759 --> 00:18:20.880 the bounds of its discretion. But it's sort of misleading 360 00:18:20.920 --> 00:18:23.160 to even think about that as a delegation of interpretive 361 00:18:23.200 --> 00:18:26.319 authority when it is something like implementation, right, So I 362 00:18:26.599 --> 00:18:27.960 think it also clarifies that. 363 00:18:28.599 --> 00:18:31.720 So you're both pro Lope or Bright, we know that's 364 00:18:31.759 --> 00:18:35.160 not true for all administrative last collars, and certainly for 365 00:18:35.200 --> 00:18:35.920 all judges. 366 00:18:36.240 --> 00:18:37.200 One of the things that. 367 00:18:37.160 --> 00:18:39.559 I used to use back when I would write articles 368 00:18:39.559 --> 00:18:43.359 about Chevron, which I don't write anymore, was there was 369 00:18:43.400 --> 00:18:46.599 an article in twenty eighteen by Judge Posner and Abby 370 00:18:46.640 --> 00:18:51.160 Gluck where they did a survey of federal appellate judges 371 00:18:51.359 --> 00:18:52.960 around the country, and they ask them a whole bunch 372 00:18:53.000 --> 00:18:53.359 of things. 373 00:18:54.400 --> 00:18:55.319 But one of the things that. 374 00:18:55.319 --> 00:18:58.079 They found was a difference between DC Circuit judges and 375 00:18:58.119 --> 00:18:59.119 others about Chevron. 376 00:18:59.160 --> 00:19:01.319 And this is a quote. All but one of the d. 377 00:19:01.319 --> 00:19:04.279 C Circuit judges we interviewed, who are of different generations 378 00:19:04.279 --> 00:19:08.119 and political parties, were admirers of Chevron difference, whereas most 379 00:19:08.160 --> 00:19:10.759 other judges from the other courts of appeals were decidedly 380 00:19:10.839 --> 00:19:15.240 anti Chevron. And the judges expressing skepticism regarding Chevron divide 381 00:19:15.279 --> 00:19:18.960 equally among liberals and conservatives. So according to them, the 382 00:19:19.000 --> 00:19:22.559 difference isn't liberal versus conservative, it is d C Circuit 383 00:19:22.640 --> 00:19:27.680 versus everybody else. So I'm just curious like reactions to this, 384 00:19:27.799 --> 00:19:30.880 as we have d C Circuit and everybody else. 385 00:19:30.920 --> 00:19:34.039 So what do we think here? Why don't we start 386 00:19:34.039 --> 00:19:34.880 with the DC Circuit. 387 00:19:35.960 --> 00:19:38.359 You know, everybody always gigs up on the d C Circuit. 388 00:19:39.039 --> 00:19:44.599 You know it's slowely, but you

know, I'll give you 389 00:19:44.599 --> 00:19:47.359 an anecdote. So after Locerbride, there were a number of 390 00:19:48.920 --> 00:19:51.680 a number of cases that where the Supreme Court granted 391 00:19:51.720 --> 00:19:56.079 cert vacated the decision and remanded for reconsideration, because you know, 392 00:19:56.119 --> 00:19:59.079 the panel had relied on Chevron. And I was talking 393 00:19:59.079 --> 00:20:01.839 to some of my colleagues and they were complaining that 394 00:20:01.920 --> 00:20:06.160 they had so many gvrs after Low for Bright because 395 00:20:06.279 --> 00:20:09.000 they rely on Chevron a great deal. And I was like, oh, 396 00:20:09.039 --> 00:20:13.240 I have zero gvrs from lower right, which I thought 397 00:20:13.319 --> 00:20:14.920 was just kind of funny, and they were they were 398 00:20:15.079 --> 00:20:16.960 not amused by that. I thought, I thought it was 399 00:20:17.119 --> 00:20:20.279 I thought it was funny. So I do think on 400 00:20:20.319 --> 00:20:24.160 the d C circuit, many of my colleagues were faithful 401 00:20:24.279 --> 00:20:27.480 adherence to the Chevron framework and frequently applied it in 402 00:20:27.599 --> 00:20:33.319 constitutional law cases and not just in statutory cases, not 403 00:20:33.480 --> 00:20:38.359 just deciding it's step one, but you know, leaving interpretive 404 00:20:38.400 --> 00:20:44.279 authority to the agency, you know, after finding ambiguity. And 405 00:20:44.279 --> 00:20:48.119 and I'll be honest, I think we are also seeing 406 00:20:48.119 --> 00:20:50.160 in some cases some quite a bit of Low for 407 00:20:50.279 --> 00:20:53.880 Bright avoidance, because there are areas in which there's so 408 00:20:53.920 --> 00:20:57.480 many areas, at least in our d C circuit case law, 409 00:20:57.559 --> 00:21:01.400 where there's deference given to agencies on safe contract interpretation 410 00:21:01.799 --> 00:21:05.559 or super duper difference for science, or some other kind 411 00:21:05.559 --> 00:21:08.759 of difference. And I think many of my colleagues believe 412 00:21:08.799 --> 00:21:12.160 that all those forms of difference persist even after lower Bright, 413 00:21:12.960 --> 00:21:15.559 a proposition that I don't agree with. 414 00:21:15.960 --> 00:21:20.319 So because you didn't think it was there from the beginning, 415 00:21:20.359 --> 00:21:20.920 or right, I. 416 00:21:20.839 --> 00:21:22.720 Mean, you know, I mean, if Loper Bright says you 417 00:21:22.839 --> 00:21:24.440 need to say what the law is, I'm not sure 418 00:21:24.440 --> 00:21:27.640 how contract interpretation is a matter that we would defer 419 00:21:27.720 --> 00:21:30.079 to an agency on right, right, I mean that's a 420 00:21:30.160 --> 00:21:33.359 legal question, or or some of these science questions. 421 00:21:33.960 --> 00:21:36.680 In fact, lober Bright says the presence of an agency 422 00:21:36.920 --> 00:21:39.880 in the case doesn't change the statue interpretation. 423 00:21:39.559 --> 00:21:42.599 Exactly exactly, And I think I think some of my colleagues, 424 00:21:42.640 --> 00:21:45.720 may you know, may push against that, or or read 425 00:21:45.759 --> 00:21:47.599 some loopholes into Loperbright. 426 00:21:47.799 --> 00:21:51.880 Perhaps, So I don't just say, answer the question from 427 00:21:51.920 --> 00:21:53.920 the perspective of other circuits. 428 00:21:54.000 --> 00:21:56.079 I guess I don't disagree with the. 429 00:21:56.079 --> 00:21:59.640 General idea that it's not obvious that hivun difference has 430 00:21:59.680 --> 00:22:03.519 to have a particular political valance. So in my court, 431 00:22:03.720 --> 00:22:09.440 probably the most frequent challenges to agency action are immigration 432 00:22:09.559 --> 00:22:13.759 and social security cases, and in those, in that context, 433 00:22:13.799 --> 00:22:18.000 deferring to the agency means denying immigration really for denying 434 00:22:18.039 --> 00:22:21.359 those scurity benefits, which you know is a kind of 435 00:22:22.279 --> 00:22:25.920 right coded thing to do, I suppose, so you might 436 00:22:25.960 --> 00:22:30.240 think that maybe, you know, conservatives would like deference and 437 00:22:30.319 --> 00:22:33.720 liberals wouldn't if you're kind of result oriented about it. 438 00:22:34.000 --> 00:22:36.799 And of course the origin of Chevron defference, of course was, 439 00:22:37.160 --> 00:22:41.319 you know, just as Scalia very worried about judges not 440 00:22:41.400 --> 00:22:45.759 letting the Rege administration follow to deregulatory policies or their policies. 441 00:22:45.799 --> 00:22:47.759 So it's not obviously there is a political valance. 442 00:22:48.599 --> 00:22:50.759 I do think that in a kind of polarized time, 443 00:22:50.839 --> 00:22:53.599 it does sort of seem like it has mapped on 444 00:22:53.640 --> 00:22:57.799 to certain inclinations, and probably overall it does have a 445 00:22:57.920 --> 00:23:00.880 kind of pro regulatory box run difference would have a 446 00:23:00.920 --> 00:23:03.920 pro regulatory bias to it, because regardless of the administration, 447 00:23:04.559 --> 00:23:08.039 agencies are always making claims for their own authority. They 448 00:23:08.119 --> 00:23:10.680 tend to make So I'm kind of skeptical that it 449 00:23:10.799 --> 00:23:13.680 really doesn't have a valance and Rea, but I agree 450 00:23:13.720 --> 00:23:14.079 that it's not. 451 00:23:14.799 --> 00:23:16.440 It's not inherent that it would need to. 452 00:23:16.880 --> 00:23:19.319 Do you think the pos nerve luck then they did 453 00:23:19.880 --> 00:23:23.000 twenty eighteen, things have changed since then, or do they 454 00:23:23.039 --> 00:23:23.880 just not get it right? 455 00:23:24.039 --> 00:23:26.599 Or I mean it's a small sample size, so like, 456 00:23:26.640 --> 00:23:27.039 I don't know. 457 00:23:27.480 --> 00:23:29.440 I mean it could be totally right, but I don't 458

00:23:29.440 --> 00:23:31.480 know if it really is dispositive about it. 459 00:23:33.200 --> 00:23:37.440 I mean, I think, as you suggested, right, believing in 460 00:23:37.519 --> 00:23:40.640 Chevron means giving a lot of leeway to agencies, which is, 461 00:23:41.079 --> 00:23:42.720 and it depends on what the agencies are doing. If 462 00:23:42.759 --> 00:23:46.000 they're doing deregulation and you give them difference, then that's 463 00:23:46.240 --> 00:23:49.680 a deregulatory bias. But if you you know, if they're 464 00:23:49.680 --> 00:23:52.480 doing something that's pro regulatory, and you differ, then so 465 00:23:52.559 --> 00:23:54.440 I think it I don't think it's easy to say 466 00:23:54.480 --> 00:23:55.960 like one way or the other that it has a 467 00:23:56.519 --> 00:23:57.720 has a particular balance. 468 00:23:57.960 --> 00:23:58.319 All right. 469 00:23:58.359 --> 00:24:01.519 So one thing that you talked about is like science, 470 00:24:02.440 --> 00:24:04.720 and in the local Bright Assent, Jess Kaigan of course 471 00:24:04.759 --> 00:24:07.160 went to that a lot, which is you get really 472 00:24:07.200 --> 00:24:11.319 complicated science questions. And I remember clerking on the DC 473 00:24:11.480 --> 00:24:16.079 Circuit back back when Judge Jamnash and I were clerks together, 474 00:24:16.400 --> 00:24:19.240 is you would get these furk cases that were so 475 00:24:19.519 --> 00:24:20.880 complicated just try. 476 00:24:20.680 --> 00:24:21.400 To figure it out. 477 00:24:21.599 --> 00:24:23.400 I remember one where Judge Intel had to like put 478 00:24:23.440 --> 00:24:26.559 the math equation into the opinion because it's so complicated 479 00:24:26.720 --> 00:24:29.400 to be able to actually do it. And like Judge Williams, 480 00:24:29.480 --> 00:24:32.039 he loved all of those, but for the rest of us, 481 00:24:32.240 --> 00:24:34.799 like it was, it was very, very hard to even 482 00:24:34.880 --> 00:24:38.559 figure out what is happening in the case, let alone 483 00:24:38.640 --> 00:24:41.039 the legal scheme of how all this is supposed to 484 00:24:41.079 --> 00:24:41.680 fit together. 485 00:24:42.200 --> 00:24:44.240 So what do you do with something like that? 486 00:24:44.279 --> 00:24:48.680 Whereas like this is very very complicated, Is there a 487 00:24:48.680 --> 00:24:51.799 soft deference to the agency for really complicated things or 488 00:24:51.839 --> 00:24:52.640 how do you do that? 489 00:24:53.319 --> 00:24:53.559 No? 490 00:24:54.119 --> 00:24:58.680 Okay, I mean, you know, so Firk isn't so complicated 491 00:24:58.720 --> 00:25:01.559 that judges can't figure out what's happening. Right, It's our 492 00:25:01.640 --> 00:25:04.079 job and we can figure out what's what's going on 493 00:25:04.119 --> 00:25:08.000 in the case. And so even if there's a lot 494 00:25:08.000 --> 00:25:10.640 of science, we don't differ on the law, we still 495 00:25:10.640 --> 00:25:12.839 have to figure out to have the authority to do 496 00:25:12.880 --> 00:25:15.680 what it did right, what was the legal basis for 497 00:25:15.720 --> 00:25:20.599 its action? I didn't follow the law? And sometimes even 498 00:25:20.599 --> 00:25:23.039 answering that question does require getting into some of the 499 00:25:23.240 --> 00:25:25.000 you know, what did they actually do? Because you have 500 00:25:25.039 --> 00:25:27.480 to understand what actually is going on with the pipeline 501 00:25:27.559 --> 00:25:28.160 or whatever it is. 502 00:25:29.039 --> 00:25:30.759 The energy is even harder than pipelines. 503 00:25:30.960 --> 00:25:33.799 Yeah, right, it's true. Yeah, No, it's complicated. I mean 504 00:25:33.839 --> 00:25:36.519 I've had my share for cases, but I don't think 505 00:25:36.559 --> 00:25:39.119 that's a reason for difference. And agency lawyers still come 506 00:25:39.160 --> 00:25:41.000 before the d C Circuit and sort of say, well, 507 00:25:41.160 --> 00:25:46.119 this is very complicated. Well, I think we can understand 508 00:25:46.160 --> 00:25:50.359 what's happening here. It's not complete rocket science and so so, No, 509 00:25:50.480 --> 00:25:52.799 I don't think. I think the question is still like 510 00:25:52.880 --> 00:25:55.039 do they have the statutory authority? And then if they do, 511 00:25:56.319 --> 00:25:59.279 whether they've acted in a manner that's reasonable. Then maybe 512 00:25:59.319 --> 00:26:03.160 you defer on the actual scientific judgments that are within 513 00:26:03.200 --> 00:26:06.440 their authority, But the question of their authority doesn't change 514 00:26:06.480 --> 00:26:08.599 just because the case is complated. 515 00:26:09.279 --> 00:26:12.559 Yeah, even as you pose the question, they're two different questions. 516 00:26:12.599 --> 00:26:15.920 You said, well, they're putting forth all of the science 517 00:26:15.960 --> 00:26:19.599 and that seems complicated, let alone the statutory interpretation question. Yeah, 518 00:26:19.599 --> 00:26:21.799 but those are two different questions, right, So the idea 519 00:26:21.839 --> 00:26:25.559 that there's some science thing going on doesn't mean that 520 00:26:25.599 --> 00:26:28.599 the statutory interpretation question is something on which the agency 521 00:26:28.599 --> 00:26:32.440 has a kind of superior has a kind of sphere expertise. 522 00:26:32.480 --> 00:26:34.599 So those just kind of seem like two different questions. 523 00:26:34.759 --> 00:26:39.039 I kind of don't really understand this concern. Like, we 524 00:26:39.079 --> 00:26:42.359 have a system of generalist judges, and we do that 525 00:26:42.440 --> 00:26:44.680 for a good reason, which is, you know, we tend 526 00:26:44.720 --> 00:26:46.759 to think if you can't explain you know, how the 527 00:26:46.880 --> 00:26:50.400 laws your work to journalists judges, then maybe it's a problem. 528 00:26:50.440 --> 00:26:52.599 And so we don't have a system where we have 529

00:26:52.759 --> 00:26:58.279 very specialized, specialized courts for every topic, and so a 530 00:26:58.279 --> 00:27:00.680 lot of cases that come to us are pretty complicated. 531 00:27:00.680 --> 00:27:04.319 If there's some kind of like corporate contract involving trade 532 00:27:04.359 --> 00:27:07.640 secrets or whatever, it might be pretty complicated. It's not 533 00:27:07.880 --> 00:27:09.960 obvious to me that when we have to decide whether, 534 00:27:10.759 --> 00:27:13.519 you know, a search was reasonable, that the officers who 535 00:27:13.559 --> 00:27:18.440 have a kind of expertise about tracking down uh, you know, 536 00:27:18.559 --> 00:27:22.640 criminal networks, that that kind of expertise shouldn't require more 537 00:27:22.680 --> 00:27:25.720 difference than you know, what the Education Department knows about 538 00:27:25.759 --> 00:27:29.000 how universities operated. It's not totally obvious that there's a 539 00:27:29.000 --> 00:27:31.519 different kind of expertise player that it would require. 540 00:27:31.279 --> 00:27:32.240 A kind of difference. 541 00:27:32.759 --> 00:27:36.400 But you do take into account the facts that they 542 00:27:36.440 --> 00:27:39.319 find and maybe you know what they say about the facts. 543 00:27:39.079 --> 00:27:40.079 Given their expertise. 544 00:27:40.480 --> 00:27:42.839 I think one interesting thing about lower bright is it 545 00:27:42.880 --> 00:27:45.839 allows you to have a kind of wider view of expertise, 546 00:27:45.880 --> 00:27:49.000 Like you can take the agency's expertise for what it is, 547 00:27:49.160 --> 00:27:51.559 expertise about how the agency operates or a kind of 548 00:27:51.599 --> 00:27:54.559 scientific area, but that doesn't mean that it gets a 549 00:27:54.640 --> 00:27:57.640 kind of dispositive weight in how a statute should be interpreted. 550 00:27:58.119 --> 00:28:00.839 And it might be that there's amicist for other kinds 551 00:28:00.839 --> 00:28:03.720 of experts to say, well, actually, you know, the agencies 552 00:28:04.359 --> 00:28:07.279 kind of captured by one viewpoint, but like there's more 553 00:28:07.319 --> 00:28:10.400 expertise to take into account, right, and that allows us 554 00:28:10.400 --> 00:28:13.319 to understand expertise for what it is and not. 555 00:28:13.440 --> 00:28:16.319 Sort of confuse it with the kind of legal authority. 556 00:28:17.440 --> 00:28:20.839 And oftentimes the expertise is you know, has a heavy 557 00:28:20.960 --> 00:28:24.559 layer of political interpretation of expertise, right, and that is 558 00:28:26.079 --> 00:28:27.440 you know, that's not science. 559 00:28:27.680 --> 00:28:30.880 Well, yeah, the original Chevron sort of says, well, agencies 560 00:28:30.920 --> 00:28:36.240 have expertise, agencies also have more political accountability whatever's going on. 561 00:28:36.359 --> 00:28:38.599 That's a reason not to interfere with them. But actually 562 00:28:38.640 --> 00:28:41.440 those two things are very different, right, So it might 563 00:28:41.480 --> 00:28:44.440 be that the expertise about how the industry works or 564 00:28:44.440 --> 00:28:48.359 how the particular question should be understood, you know, informs 565 00:28:48.359 --> 00:28:51.720 how you understand the statute in one way, if what 566 00:28:51.799 --> 00:28:54.480 you think is actually this is a kind of policy making, 567 00:28:54.799 --> 00:28:57.960 then maybe the authority, you know, the democratic accountability becomes 568 00:28:58.000 --> 00:29:00.480 just positive because they're the ones who just have a 569 00:29:00.559 --> 00:29:02.559 kind of policy making space in which. 570 00:29:02.359 --> 00:29:03.799 They could decide what the policy is. 571 00:29:05.079 --> 00:29:07.200 But so it allows for more precision in the way 572 00:29:07.240 --> 00:29:08.920 we apply the law, as opposed to just kind of 573 00:29:08.920 --> 00:29:11.839 throwing up our hands and saying we'll let the agency decide. 574 00:29:11.960 --> 00:29:12.279 All right. 575 00:29:12.319 --> 00:29:15.880 So I got a note, folks, if you have questions. 576 00:29:15.519 --> 00:29:18.079 For the judges, which I hope that you will, you 577 00:29:18.079 --> 00:29:23.839 could either email it to cs CSAs at GMU ADU 578 00:29:24.039 --> 00:29:27.240 or on the back of your program there's the QR code. 579 00:29:27.680 --> 00:29:29.559 We'll get to those audience questions in a second, but 580 00:29:29.640 --> 00:29:32.480 I'm going to be one a little bit provocative on 581 00:29:32.480 --> 00:29:37.079 this one, which is when I would think about Chevron before. 582 00:29:37.480 --> 00:29:40.920 I always thought the presumption was the wrong way that 583 00:29:41.400 --> 00:29:43.880 they said that if it's ambiguous, the agency is going 584 00:29:43.960 --> 00:29:46.480 to win. But I always said, this goes back to 585 00:29:46.559 --> 00:29:50.279 Judge Sutton would say it too. Most of these statutes 586 00:29:50.279 --> 00:29:53.799 and rags are backed by criminal penalties. So why doesn't 587 00:29:53.799 --> 00:29:56.240 the rule of lenity say that the default is the 588 00:29:56.279 --> 00:30:00.039 other direction that if there's ambiguities in these things, it 589 00:30:00.119 --> 00:30:03.119 cuts in favor of the public and non favor of 590 00:30:03.160 --> 00:30:08.160 the agency. And maybe that's just a crazy idea, but 591 00:30:08.200 --> 00:30:10.279 I'm curious what your thoughts are on that. 592 00:30:12.240 --> 00:30:14.359 Must you go that one first? You just say, Aaron, 593 00:30:14.400 --> 00:30:14.920 you're crazy. 594 00:30:15.240 --> 00:30:17.039 I mean, I don't think it's true that a lot 595 00:30:17.079 --> 00:30:20.839 of things are backed by criminal penalties. Actually, so I 596 00:30:20.839 --> 00:30:25.559 think that's not true. There's probably very few regulations their 597 00:30:25.640 --> 00:30:28.440 violation is backed by criminal penalties. 598

00:30:28.960 --> 00:30:30.519 Okay, right, I think you're not correct. 599 00:30:30.759 --> 00:30:34.839 That really okay, But but but. 600 00:30:34.839 --> 00:30:37.799 Okay, maybe look, look you're you're the d C circumgene. 601 00:30:37.799 --> 00:30:38.359 You do this all day. 602 00:30:38.480 --> 00:30:41.599 I don't know, I mean not sure. 603 00:30:41.759 --> 00:30:42.599 I mean I did the thing. 604 00:30:42.960 --> 00:30:45.440 You know that lover Bride is right that there's often 605 00:30:45.440 --> 00:30:48.480 the best reading of the statute, So you know, and 606 00:30:48.519 --> 00:30:50.160 even when we talk about the rule of lenity, we 607 00:30:50.200 --> 00:30:52.680 usually apply it in the case of grievous ambiguity that's 608 00:30:52.680 --> 00:30:55.480 irreducible after we do all the tools of satutory interpretation. 609 00:30:55.680 --> 00:30:56.920 So I do kind of think. 610 00:30:58.279 --> 00:31:00.640 We shouldn't look for another out to just deffer in 611 00:31:00.680 --> 00:31:03.680 the opposite direction. I think, you know, you throw all 612 00:31:03.720 --> 00:31:05.440 the tools you have at the statute and come up 613 00:31:05.440 --> 00:31:08.559 with the meaning of it. I suppose in cases where 614 00:31:08.559 --> 00:31:12.799 there's an irreducible ambiguity that's unavoidable, maybe if there's a 615 00:31:12.799 --> 00:31:14.720 criminal penalty that will let it be would apply. But 616 00:31:14.759 --> 00:31:17.720 that's just one of our tools of satory interpretation. I 617 00:31:17.720 --> 00:31:21.079 wouldn't say that we should reintroduce shiver run difference in 618 00:31:21.119 --> 00:31:24.599 the opposite direction, because kind of the point is, you know, 619 00:31:24.599 --> 00:31:27.279 we have a duty to decide what Congress meant. 620 00:31:27.559 --> 00:31:31.759 Also, I think that your question and raises a real 621 00:31:31.799 --> 00:31:34.720 non delegation problem, right, So if Congress has provided for 622 00:31:34.880 --> 00:31:38.519 criminal penalties, they should say what the crime is. Right. 623 00:31:38.559 --> 00:31:42.240 If they provide for criminal penalties and the agency is 624 00:31:42.400 --> 00:31:46.640 just by regulation criminalizing a whole range of things, then 625 00:31:46.640 --> 00:31:50.880 that perhaps poses a non delegation problem. And I don't 626 00:31:50.880 --> 00:31:53.559 think the rule of lenity can fix the non delegation problem, right, 627 00:31:53.599 --> 00:31:56.799 Maybe like they just can't regulate a whole new category 628 00:31:56.839 --> 00:31:59.960 of things that are subject to criminal penalties. If that's 629 00:32:00.039 --> 00:32:02.279 sort of the suggestion of what these rigs are doing. 630 00:32:02.400 --> 00:32:05.119 So I think to me there would be I guess 631 00:32:05.559 --> 00:32:09.680 a bigger threshold problem with that sort of regulation. 632 00:32:10.599 --> 00:32:13.480 All right, So one of the other arguments that used 633 00:32:13.480 --> 00:32:17.240 to be made in favor of Chevron was that it 634 00:32:17.240 --> 00:32:22.440 would reduce forum shopping. If every judge is applying the 635 00:32:22.440 --> 00:32:26.519 same methodology, and with a particular to the extent that 636 00:32:26.599 --> 00:32:30.480 judges disagree on methodology with a thumb on the scale 637 00:32:30.519 --> 00:32:32.559 in favor of one side or the other, then the 638 00:32:32.559 --> 00:32:36.400 circuits are not going to disagree as much. So, Peter Strauss, 639 00:32:36.960 --> 00:32:38.799 the court only has capacity for one hundred and fifty 640 00:32:38.839 --> 00:32:41.559 cases a year, so you need something to deal with 641 00:32:41.599 --> 00:32:45.400 the large volume of cases. And now that we don't 642 00:32:45.400 --> 00:32:49.960 have Chevron, are we going to see forum shopping or 643 00:32:50.000 --> 00:32:52.279 is that something that a lot of professor would come 644 00:32:52.359 --> 00:32:52.559 up with. 645 00:32:52.720 --> 00:32:53.920 Is not the real world? 646 00:32:55.720 --> 00:32:57.920 Well, I can tell you being on the DC Circuit. 647 00:32:58.160 --> 00:33:02.799 When there is a Democrat administration, we're like out of business. 648 00:33:03.000 --> 00:33:05.240 You know, our caseload drops and everything goes to the 649 00:33:05.240 --> 00:33:09.799 Fifth Circuit. And when Donald Trump is in office, our 650 00:33:09.880 --> 00:33:14.640 case load goes way up. So maybe that's forum shopping. 651 00:33:14.759 --> 00:33:20.279 I don't know, but it's it's noticeable, okay. So, and 652 00:33:20.359 --> 00:33:23.039 I think that was happening before. And I'm not sure, 653 00:33:23.079 --> 00:33:26.240 you know, I haven't done any impirical work, but you know, 654 00:33:26.279 --> 00:33:30.319 I mean, Chevron wasn't exactly you know, it wasn't like 655 00:33:30.640 --> 00:33:33.799 every judge applying Chevron would reach the same outcome, just 656 00:33:33.839 --> 00:33:35.920 as every judge applying Loper Bright and looking for the 657 00:33:35.960 --> 00:33:37.720 best meaning is not going to reach the same outcome. 658 00:33:37.799 --> 00:33:40.680 So I'm not sure that it will make any difference 659 00:33:40.680 --> 00:33:43.720 in terms of predictability. To be honest, yeah, I. 660 00:33:43.640 --> 00:33:46.480 Have the same reaction, which is, even in a world 661 00:33:46.480 --> 00:33:50.599 with Chevron difference, if there was a Republican administration, you'd 662 00:33:50.599 --> 00:33:51.000 bring your. 663 00:33:50.920 --> 00:33:53.119 Case of the Ninth Circuit or maybe the DC Circuit. 664 00:33:53.440 --> 00:33:55.359 If it's a Democrat administration, you're going to go to 665 00:33:55.440 --> 00:33:58.079 the Fifth Circuit if you're telling me that after Low 666 00:33:58.200 --> 00:34:02.680 or Bright, even if you're challenging policy of a Republican administration, 667 00:34:02.759 --> 00:34:05.400 you're going to say to yourself, you know, the

Fifth 668 00:34:05.440 --> 00:34:07.400 Circuit has a lot of really good case law on 669 00:34:07.480 --> 00:34:09.119 adhering strictly to the text. 670 00:34:09.199 --> 00:34:11.760 So I think my challenge is better in the Fifth Circuit. 671 00:34:12.440 --> 00:34:13.000 That's great. 672 00:34:13.360 --> 00:34:16.159 That sort of means like now people are making decisions 673 00:34:16.199 --> 00:34:19.599 about the right forum based on interpretive methodology, and that's 674 00:34:19.639 --> 00:34:24.199 better than just kind of ideological inclination. And so I 675 00:34:24.199 --> 00:34:26.719 think that that would be a welcome development if it happened, 676 00:34:26.719 --> 00:34:29.559 although I think I'm kind of skeptical that that's what 677 00:34:29.639 --> 00:34:30.599 we're going to see. 678 00:34:30.840 --> 00:34:35.280 I will say as Texas solicitor General, we were we 679 00:34:35.320 --> 00:34:37.559 had one hundred cases the State of Texas file against 680 00:34:37.559 --> 00:34:41.280 the Biden administration, which meant there's a lot of appeals 681 00:34:41.360 --> 00:34:45.239 at the end of that. And as soon as the 682 00:34:45.280 --> 00:34:48.599 election happened, it's like the Department of Justice just turned off. 683 00:34:49.480 --> 00:34:51.800 So we had all these cases that we were litigating, 684 00:34:51.840 --> 00:34:54.079 and suddenly as soon as the election happened, Like I Mike, 685 00:34:54.119 --> 00:34:57.400 I hope they're still prosecuting people because all of the 686 00:34:57.440 --> 00:35:01.280 agency defense just stopped and it just froze, which in 687 00:35:01.320 --> 00:35:04.039 a way that markedly changed life of me and my 688 00:35:04.159 --> 00:35:08.639 team because it just stopped, which I thought wasn't interesting. 689 00:35:08.880 --> 00:35:11.199 Did you ever bring any cases in the d C 690 00:35:11.400 --> 00:35:14.840 circuit where a case could have been brought either you know, 691 00:35:14.960 --> 00:35:17.079 in the district court in Texas or in d d C. 692 00:35:17.679 --> 00:35:18.679 That's privileged. 693 00:35:20.000 --> 00:35:23.360 Well, I mean whether you brought the that's a matter 694 00:35:23.400 --> 00:35:24.039 of public record. 695 00:35:24.239 --> 00:35:26.960 Whether we brought the case. Yeah, there's there's a lot 696 00:35:26.960 --> 00:35:30.960 of times there are cases, but usually these cases are 697 00:35:31.159 --> 00:35:34.079 my statute. There's the d c circuits certain types of cases. 698 00:35:34.599 --> 00:35:36.599 So I don't ask to the question when if you 699 00:35:36.639 --> 00:35:40.239 have to make a choice or not, I will let 700 00:35:40.320 --> 00:35:43.639 the I will leave that for others to answer that question. 701 00:35:44.519 --> 00:35:45.880 It's a matter of public record. 702 00:35:46.920 --> 00:35:52.079 Yeah, well, all right, okay, see I'm not supposed to 703 00:35:52.079 --> 00:35:56.280 be part of this conversation. All right, okay, So do 704 00:35:56.360 --> 00:35:58.119 you expect and I think I know the answer is 705 00:35:58.119 --> 00:35:59.519 going to be a bob the curious. Do you expect 706 00:35:59.599 --> 00:36:03.519 agency rulemaking to slow down in light of reduce judicial difference? 707 00:36:03.599 --> 00:36:07.440 In other words, or agencies more aggressive and do more 708 00:36:07.519 --> 00:36:10.800 things because of Chevron and now they'll stop doing that 709 00:36:10.800 --> 00:36:13.679 after a lower Bright Or will they just keep generating 710 00:36:13.719 --> 00:36:15.760 about the same amount of work but just do it differently. 711 00:36:17.840 --> 00:36:19.679 I wouldn't think that a lot of it would change. 712 00:36:19.800 --> 00:36:22.159 I mean, I kind of get what you're saying, which 713 00:36:22.239 --> 00:36:24.719 is maybe if there is a Chevron difference, agencies are 714 00:36:24.719 --> 00:36:27.639 going to think that their rules are more vulnerable to 715 00:36:27.719 --> 00:36:32.280 challenge and do it less. But you know, sluper Bright 716 00:36:32.800 --> 00:36:35.440 is not an isolated case. I mean the sort of 717 00:36:35.519 --> 00:36:38.800 the larger vibes of it and surrounding it are less 718 00:36:38.800 --> 00:36:44.119 difference to agencies, less exploitation of loopholes, and so if 719 00:36:44.199 --> 00:36:47.639 an agency thinks, oh, after Loper Bright, I won't do 720 00:36:47.679 --> 00:36:49.760 a rulemaking I'll just issue a guidance document. There are 721 00:36:49.760 --> 00:36:52.559 all other cases and doctrines that are designed to not 722 00:36:52.639 --> 00:36:54.079 allow them to do that. 723 00:36:54.159 --> 00:36:55.159 So I would think in. 724 00:36:55.119 --> 00:36:58.519 An environment in which the court is more willing to 725 00:36:58.519 --> 00:37:03.199 scrutinize agency reasoning and less inclined simply to defer to them, 726 00:37:03.719 --> 00:37:08.159 the agency would actually prefer to have their interpretation laid 727 00:37:08.159 --> 00:37:11.360 out in detail in a kind of legally binding way. 728 00:37:11.400 --> 00:37:13.760 So I would think in that environment you might seem 729 00:37:13.800 --> 00:37:19.039 more rulemaking. If it makes a difference at all, I'm 730 00:37:19.039 --> 00:37:19.599 not sure. 731 00:37:19.800 --> 00:37:21.719 I mean I do think that agencies will have to 732 00:37:21.760 --> 00:37:25.199 be more careful. And when I ran a WIRA, agencies 733 00:37:25.199 --> 00:37:27.719 would often say I'd say, well, what's your authority for this? 734 00:37:27.800 --> 00:37:31.320 And I'd say, well, we've been doing this for decades 735 00:37:31.360 --> 00:37:33.679 and say, well, then surely you have some statutory authority. 736 00:37:34.280 --> 00:37:37.719 And then like several weeks would go by and they'd say, look, 737 00:37:37.760 --> 00:37:40.800 get provision one oh one. The secretary can make rules, 738 00:37:40.960 --> 00:37:44.039 so that's not authority to do whatever

you're doing. So 739 00:37:44.239 --> 00:37:46.320 I think they're going to have to be a little 740 00:37:46.400 --> 00:37:49.760 more particular and where's the authority and then set it 741 00:37:49.800 --> 00:37:51.760 out in the rules, and whether that will change the 742 00:37:51.840 --> 00:37:53.760 volume of rule making, I think it's hard to say. 743 00:37:54.079 --> 00:37:54.159 So. 744 00:37:54.960 --> 00:37:56.880 Yeah, so I was a lawyer one of those agencies 745 00:37:56.880 --> 00:37:59.440 that sent rules to Naomi, so I sort of know 746 00:38:00.199 --> 00:38:01.039 of that process. 747 00:38:01.519 --> 00:38:03.519 We weren't notting anyone do any role, So that was 748 00:38:03.599 --> 00:38:04.079 the main thing. 749 00:38:04.599 --> 00:38:05.599 Yeah, and that's true. 750 00:38:05.599 --> 00:38:07.199 You have to sort of be more rigorous about it, 751 00:38:07.239 --> 00:38:10.360 but the guidance documents that you send that are less 752 00:38:10.440 --> 00:38:12.960 rigorous about it. And so it sort of seems to 753 00:38:13.000 --> 00:38:15.159 me that an environment in which you have to show 754 00:38:15.199 --> 00:38:17.519 your work a lot more and be more persuasive, it 755 00:38:17.559 --> 00:38:20.960 would tend to you tend to incline toward. 756 00:38:20.800 --> 00:38:24.000 More formal or formal procedures where you could lay it out. 757 00:38:24.920 --> 00:38:27.199 So I have not run a study on this. 758 00:38:27.199 --> 00:38:30.519 This is just anecdotal, but we had a lot of cases, 759 00:38:30.519 --> 00:38:34.000 so it's not based on nothing either. What happened after 760 00:38:34.039 --> 00:38:38.840 lopel Bright was government agencies government lawyers started saying that 761 00:38:38.880 --> 00:38:42.719 everything was an express delegation of authority. So before Chevron 762 00:38:42.800 --> 00:38:47.400 it was an implicit delegation of authority. And lober Wright says, no, 763 00:38:47.639 --> 00:38:49.559 we're not doing that. Anymore, but there could still be 764 00:38:49.559 --> 00:38:52.360 express delegations of authority, and then suddenly everything became an 765 00:38:52.400 --> 00:38:54.960 express delegation of authority. At least that's the cases that 766 00:38:55.039 --> 00:38:58.960 I saw. Have you seen something similar to that or 767 00:38:59.000 --> 00:39:00.719 do you think that was just maybe a blurb or 768 00:39:00.760 --> 00:39:02.679 maybe a Fifth Circuit's. 769 00:39:02.360 --> 00:39:03.239 Kind of specific thing. 770 00:39:06.719 --> 00:39:12.519 Well, I do see a number of parties trying to 771 00:39:12.559 --> 00:39:14.760 get within what they consider kind of the local right 772 00:39:14.920 --> 00:39:18.000 exceptions right, which is like, oh, this is expertise or 773 00:39:18.079 --> 00:39:21.480 this is an express delegation. So I do see those 774 00:39:21.599 --> 00:39:24.800 kinds of arguments being made in the briefs after lober Bright, 775 00:39:25.000 --> 00:39:28.920 And I mean, I guess that makes sense. But I 776 00:39:28.920 --> 00:39:32.519 think it's important to remember too that in Low for Bright, 777 00:39:33.320 --> 00:39:38.280 the Chief Justice repeatedly says, you know that the delegations 778 00:39:38.320 --> 00:39:42.000 have to be within constitutional limits, which to me very 779 00:39:42.039 --> 00:39:45.559 much foreshadows, you know, interest in the non delegation doctrine, which, 780 00:39:45.599 --> 00:39:47.960 of course, maybe to me everything looks like it's part 781 00:39:47.960 --> 00:39:50.480 of the non delegation doctrine because it's something I believe in. 782 00:39:50.559 --> 00:39:54.320 But he says that multiple times in the opinion that 783 00:39:54.360 --> 00:39:56.920 the delegations have to be within constitutional limits. So if 784 00:39:56.920 --> 00:40:01.360 an agency is saying we have, you know, explicitly delegated 785 00:40:01.400 --> 00:40:04.639 some completely open ended authority. Well, maybe that's going to 786 00:40:04.679 --> 00:40:09.880 run into a non delegation challenge down the road. Yeah. 787 00:40:09.880 --> 00:40:12.000 I don't know if I get enough of these cases 788 00:40:12.039 --> 00:40:14.239 to say that I've noticed a pattern from the briefs 789 00:40:14.559 --> 00:40:17.280 or whatever, but it does kind of seem to me 790 00:40:18.039 --> 00:40:20.559 that you can make that argument, but it's oftentimes not 791 00:40:20.599 --> 00:40:24.440 going to be persuasive. Like there are cases where Congress 792 00:40:24.519 --> 00:40:28.760 uses open textured language like reasonable, as I was saying before, 793 00:40:29.199 --> 00:40:31.079 in which case they just have a zone in which 794 00:40:31.119 --> 00:40:33.960 the agency gets the little bit the statute. There are 795 00:40:34.039 --> 00:40:38.559 cases where, you know, the statute might say here's a 796 00:40:38.920 --> 00:40:41.519 term that we want the agency to elaborate, like what's 797 00:40:41.519 --> 00:40:44.679 an unfair labor practice or something, and that really is 798 00:40:45.199 --> 00:40:48.880 a delegation. It's possible that some of those could be implicit, 799 00:40:48.960 --> 00:40:51.760 but you really have to make the case that that's 800 00:40:51.800 --> 00:40:55.039 really what Congress wanted, because we're not going to presume 801 00:40:55.280 --> 00:40:58.960 that it is. And so I expect that will be 802 00:40:59.000 --> 00:40:59.480 worked out. 803 00:41:00.159 --> 00:41:00.480 I don't know. 804 00:41:00.480 --> 00:41:03.760 I guess there might be circuits or particular panels that 805 00:41:03.800 --> 00:41:07.119 are more willing to just reintroduce shiverrun difference by saying I. 806 00:41:07.079 --> 00:41:09.000 Just think that there's a bunch ability to authority here. 807 00:41:09.400 --> 00:41:11.360 But I kind of expect the Supreme Court would take 808 00:41:11.400 --> 00:41:13.639 a couple of those egregious cases and sort of say, no, 809 00:41:13.719 -->

00:41:15.760 we really mean that you have to look for the 810 00:41:15.800 --> 00:41:18.360 delegation before you, before you just to fall to the 811 00:41:18.360 --> 00:41:19.159 agency position. 812 00:41:19.519 --> 00:41:19.800 All right. 813 00:41:19.840 --> 00:41:21.480 So we have some questions from the audience which I 814 00:41:21.519 --> 00:41:23.199 would like to get to. So the first is for 815 00:41:23.320 --> 00:41:27.559 Judge Row. As courts fill out the Loper Bright doctrine, 816 00:41:27.880 --> 00:41:30.239 would it be helpful for courts if linagaanst did more 817 00:41:30.280 --> 00:41:33.679 work to help concorts understand technical and scientific terms and 818 00:41:33.719 --> 00:41:37.840 statutes as experts understand those terms. In other words, as 819 00:41:37.840 --> 00:41:40.280 the I guess I'm putting my splent on this. Has 820 00:41:40.360 --> 00:41:42.719 the briefing changed or should it change in the post 821 00:41:42.760 --> 00:41:46.199 Looper Bright world where some of that technical information is 822 00:41:46.239 --> 00:41:47.400 better conveyed to the court. 823 00:41:48.880 --> 00:41:50.880 I don't think it's any different than it was before. 824 00:41:50.920 --> 00:41:54.960 But I can say we certainly appreciate when briefs include 825 00:41:55.000 --> 00:41:59.000 that kind of technical information. I oftentimes people who appear 826 00:41:59.039 --> 00:42:01.519 before us are experts in their fields, and they don't 827 00:42:01.719 --> 00:42:04.360 realize that we are generalist judges. And even if We've 828 00:42:04.400 --> 00:42:08.079 had fifty Furt cases. This furcase might be something new, 829 00:42:08.360 --> 00:42:13.599 and I think briefs that really explain the underlying you know, 830 00:42:13.840 --> 00:42:17.639 science or technology or how something works is extremely helpful 831 00:42:17.639 --> 00:42:19.800 because I often have to spend a lot of time 832 00:42:19.840 --> 00:42:22.679 in chambers figuring out how something works. So I can 833 00:42:22.800 --> 00:42:25.519 understand how the law layers on to how the thing works. 834 00:42:25.639 --> 00:42:28.519 And so if the you know, really good briefing will 835 00:42:29.000 --> 00:42:31.280 make that job a lot easier for the judges. So 836 00:42:32.199 --> 00:42:34.840 I think pre or post slower Bride, I think. 837 00:42:34.719 --> 00:42:37.039 That's true, all right, So this is for both the 838 00:42:37.079 --> 00:42:39.559 both of you, in Low or Bright. The court said 839 00:42:39.800 --> 00:42:44.039 that previously said that previously upheld interpretations based on Chevron 840 00:42:44.280 --> 00:42:46.920 should not be subject to challenge simply because Chevron is 841 00:42:46.920 --> 00:42:49.719 now overruled. What do you think that assurance will mean 842 00:42:49.760 --> 00:42:51.119 in practice going forward? 843 00:42:53.119 --> 00:42:55.519 Well, I mean this real Quart says that if we 844 00:42:55.599 --> 00:42:59.239 have

upheld an agency action as lawful under Chevron, like 845 00:42:59.280 --> 00:43:02.639 that precedent survives, and I think that's true, then the 846 00:43:02.639 --> 00:43:06.440 status quo would be that that agency action is lawful. 847 00:43:06.920 --> 00:43:07.760 But there are lots of. 848 00:43:07.639 --> 00:43:10.880 Cases where we've previously reached some kind of result and 849 00:43:10.880 --> 00:43:13.199 then somebody later comes up with a new kind of 850 00:43:13.320 --> 00:43:15.679 argument that hasn't been considered before, and maybe is a 851 00:43:15.679 --> 00:43:17.840 way to challenge that kind of thing. 852 00:43:18.199 --> 00:43:19.679 And I don't know, I guess I sort of see 853 00:43:19.679 --> 00:43:20.840 this that way. 854 00:43:21.039 --> 00:43:25.239 So like the status quo is that those are precedents 855 00:43:25.239 --> 00:43:28.440 out of which the parties can rely. But eventually you 856 00:43:28.519 --> 00:43:32.400 might get a case that says, well, look, you upheld 857 00:43:32.400 --> 00:43:37.360 that under difference under Chevron difference, but really there's a 858 00:43:37.360 --> 00:43:39.360 better reading of the statue that comes up in a 859 00:43:39.400 --> 00:43:41.920 kind of later case, and so you might revise it. 860 00:43:41.960 --> 00:43:43.440 And that's not abnormal. 861 00:43:44.000 --> 00:43:45.960 You know, in cases where there's sort of developments at 862 00:43:45.960 --> 00:43:48.840 the screen court or factual developments or other arguments that 863 00:43:48.920 --> 00:43:52.199 and then raised before. It just doesn't seem like it's 864 00:43:52.239 --> 00:43:56.000 a it's an unmanageable problem to me. 865 00:43:56.079 --> 00:43:59.480 I understand the Supreme Court to be saying, you know, 866 00:44:00.039 --> 00:44:02.440 you're not going to go back and overturn specific precedents 867 00:44:02.480 --> 00:44:05.679 about specific rules. But for instance, if there was a 868 00:44:05.760 --> 00:44:08.159 Rule A that was upheld under Chevron, and then Rule 869 00:44:08.199 --> 00:44:10.800 B comes along in a similar area, but it's a 870 00:44:10.840 --> 00:44:13.960 new rule and someone raises a challenge to the agency's 871 00:44:14.000 --> 00:44:17.800 legal authority, I don't think that would be I don't 872 00:44:17.800 --> 00:44:19.880 think we could, you know, I don't think it's sort 873 00:44:19.920 --> 00:44:22.239 of like if you know something was upheld under Chevron, 874 00:44:22.280 --> 00:44:25.039 now we will never look at the statutory basis for 875 00:44:25.159 --> 00:44:27.800 a similar rule. I think the new rules are all 876 00:44:27.840 --> 00:44:29.360 fair game under lower Bright. 877 00:44:29.800 --> 00:44:31.480 Well that's got to be true, right, because even under 878 00:44:31.519 --> 00:44:34.840 Chevron that would happen. The agency changed its position, right, 879 00:44:34.920 --> 00:44:36.800 and then somebody would challenge it, and you decide whether 880 00:44:36.840 --> 00:44:39.599 that met the Chevron test, And so they just consider 881 00:44:39.639 --> 00:44:42.039 that under the regular But if the. 882 00:44:42.000 --> 00:44:44.320 Rule was similar enough under Chevron, you know, there'd be 883 00:44:44.320 --> 00:44:46.480 a maybe it would be a holding that there was 884 00:44:46.519 --> 00:44:49.840 an ambiguity that you know, the agency could fill in. 885 00:44:50.360 --> 00:44:54.320 Okay, Since Loper Bright said courts should use their best 886 00:44:54.400 --> 00:44:57.840 judgment in interpreting statutes, why should course continue to apply 887 00:44:57.880 --> 00:45:01.519 the major questions doctrine? Then that spicy? 888 00:45:01.559 --> 00:45:05.480 All right? So actually I find this. 889 00:45:05.480 --> 00:45:08.880 Kind of interesting the Major Questions doctrine and Loper Bright, 890 00:45:08.960 --> 00:45:12.639 because before lower Bright, the main function of the Major 891 00:45:12.719 --> 00:45:16.000 Questions doctrine was to get out of Chevron deference. Right, 892 00:45:16.039 --> 00:45:19.840 A lot of the the idea that like this is 893 00:45:19.840 --> 00:45:22.880 a major question, you know, the conclusion is, and so 894 00:45:22.960 --> 00:45:25.360 therefore Congress would have wanted to provide the answer and 895 00:45:25.360 --> 00:45:26.760 not delegated it to the agency. 896 00:45:26.800 --> 00:45:28.519 That was kind of the idea. 897 00:45:28.639 --> 00:45:30.440 And so in a lot of the cases, the main 898 00:45:30.519 --> 00:45:32.519 purpose of it, or the main function of it was 899 00:45:32.559 --> 00:45:35.280 to say, we're not going to defer to the agency, 900 00:45:35.320 --> 00:45:40.000 like you know, like Chief Justice Roberts says in the 901 00:45:40.000 --> 00:45:43.880 Obamacare that King versus Burwell, Like, wouldn't it be crazy 902 00:45:43.920 --> 00:45:45.800 to think that the Congress would have wanted the irs 903 00:45:45.800 --> 00:45:49.239 to decide how the Healthcare for FORMA should work. No, 904 00:45:49.320 --> 00:45:51.039 they wouldn't have wanted that, right, And that was kind 905 00:45:51.079 --> 00:45:54.440 of the function. So now after lower Bright, everything is 906 00:45:54.480 --> 00:45:56.800 a major question in that sense, right, we don't just 907 00:45:56.880 --> 00:45:59.719 let the agency decide, And so that sort of brings 908 00:45:59.760 --> 00:46:05.239 to the for other possible bases or functions of the 909 00:46:05.239 --> 00:46:07.800 major Questions doctrine. So, like there's this dispute as to 910 00:46:07.840 --> 00:46:10.800 whether it is the linguistic canon that just sort of 911 00:46:10.800 --> 00:46:15.199 stands for the principle that Congress doesn't hide elephants in mouseholes, 912 00:46:15.199 --> 00:46:16.880 and then if you have general language, there isn't going 913 00:46:16.960 --> 00:46:19.440 to be a big power hidden in there. And then 914 00:46:19.519 --> 00:46:22.639 the I guess that's the

Barren view. And then there's 915 00:46:22.639 --> 00:46:24.280 the Gorst view, which is that it is sort of 916 00:46:24.519 --> 00:46:29.239 substantive way of enforcing non delegation principles by requiring Congress 917 00:46:29.320 --> 00:46:35.039 to use a clear statement when you know, when delegating 918 00:46:35.079 --> 00:46:39.119 a major authority. I don't know if the difference between 919 00:46:39.159 --> 00:46:42.039 them in terms of what it does makes much of 920 00:46:42.079 --> 00:46:46.079 a difference if the payoff is whether it's linguistic or substantive. 921 00:46:46.199 --> 00:46:49.239 Congress just has to be express when it wants to 922 00:46:49.360 --> 00:46:53.239 authorize a major power. But since now the sort of 923 00:46:53.280 --> 00:46:56.719 what I regard as the previously primary function of the 924 00:46:56.719 --> 00:46:59.119 Major Questions doctum, which is to get out of chevrun difference, 925 00:46:59.480 --> 00:47:02.159 is no longer relevant, I guess we might see some 926 00:47:02.199 --> 00:47:07.639 development of you know, right, you can imagine the major 927 00:47:07.719 --> 00:47:09.920 Questions doctrine not playing a big role if you think 928 00:47:09.920 --> 00:47:11.360 that all it was was to get to the best 929 00:47:11.400 --> 00:47:13.480 reading of the text. But you can think of it 930 00:47:13.519 --> 00:47:16.199 as playing a more major role if you have decided 931 00:47:16.199 --> 00:47:19.480 that actually it's a way of enforcing the non delegation doctrine, 932 00:47:19.480 --> 00:47:21.400 which is the next step after getting rid they've shared 933 00:47:21.480 --> 00:47:21.639 on it. 934 00:47:24.159 --> 00:47:27.320 Yeah, I'm not sure I necessarily see a you know, 935 00:47:27.440 --> 00:47:30.280 conflict between low for Bride and the Major Questions doctrine anymore. 936 00:47:30.280 --> 00:47:34.280 Than with other, you know, linguistic or possibly substantive canons, 937 00:47:34.320 --> 00:47:35.880 depending on how you think about it. I mean, if 938 00:47:35.880 --> 00:47:37.519 we're trying to find the best meaning of the role, 939 00:47:38.000 --> 00:47:41.159 major questions doctrine can still provide the type of context 940 00:47:41.280 --> 00:47:44.800 and background norms you know that other linguistic canons do. 941 00:47:44.960 --> 00:47:47.920 And and if it's enforcing a kind of a substantive 942 00:47:47.960 --> 00:47:51.599 norm of non delegation or ensuring that we're not reading 943 00:47:51.639 --> 00:47:54.840 delegations in a way that raise constitutional problems, then I 944 00:47:54.880 --> 00:47:57.800 think that also goes perhaps to the best meaning of 945 00:47:57.800 --> 00:48:01.280 the statutes. So I'm not sure that it really, you know, 946 00:48:01.400 --> 00:48:03.679 necessarily will make a big difference. 947 00:48:03.760 --> 00:48:06.800 Yeah, one of the well, as we were saying before, 948 00:48:07.119 --> 00:48:08.239 you know, you exhaust all. 949

00:48:08.199 --> 00:48:11.039 The tools of satutary interpretation, like the linguistic and substance 950 00:48:11.079 --> 00:48:14.400 canons are part of those tools. And so if the 951 00:48:15.079 --> 00:48:17.840 major questions doctrine is well founded, then it is just 952 00:48:17.960 --> 00:48:20.159 part of what the law means. 953 00:48:20.000 --> 00:48:20.320 That's right. 954 00:48:20.400 --> 00:48:22.559 It's some intentionalists are worried about substantive canons. 955 00:48:22.559 --> 00:48:24.519 I think Naomi and I both expressed of you that 956 00:48:24.679 --> 00:48:28.760 actually background legal principles are pretty relevant and and maybe 957 00:48:28.760 --> 00:48:31.360 we don't see that we're not that type of person 958 00:48:31.360 --> 00:48:33.599 who thinks that it's a problem. But if it's a 959 00:48:33.679 --> 00:48:36.320 linguistic canon, then obviously that's just a stands for the 960 00:48:36.320 --> 00:48:39.360 principle that that's how you should understand the statute. Like 961 00:48:39.400 --> 00:48:42.840 if you have if Congress says the agency is empowered 962 00:48:42.840 --> 00:48:44.280 to do A, B and C, and then there's like 963 00:48:44.320 --> 00:48:47.239 a catch all thing that says or anything else to 964 00:48:47.280 --> 00:48:51.239 accomplish some result. If the agency reads into the catch 965 00:48:51.239 --> 00:48:55.440 all some authority that's broader than the enubrated ones, you'd 966 00:48:55.480 --> 00:48:58.360 expect it to be enuberated. You might just say, and 967 00:48:58.400 --> 00:49:00.360 I think that this is right, that the best reading 968 00:49:00.480 --> 00:49:03.760 of the text is that that catchual can't authorize something 969 00:49:03.840 --> 00:49:07.639 that's you would have expected to be enumerted. And so 970 00:49:07.679 --> 00:49:10.119 then it's just about getting at the right meaning of 971 00:49:10.159 --> 00:49:13.480 the statute. And then the major questions doctor under that 972 00:49:13.559 --> 00:49:16.199 view is just stands for the principle that's the way 973 00:49:16.239 --> 00:49:18.719 you should read texts. 974 00:49:19.119 --> 00:49:23.519 I mean, oftentimes canons, whether they're linguistic or substantive, are 975 00:49:23.559 --> 00:49:26.639 ways for judges to explain, right. They're just ways to 976 00:49:26.800 --> 00:49:30.559 explain how a judge is getting at the best meaning 977 00:49:30.639 --> 00:49:33.880 of a text. And I think if you think about it, 978 00:49:33.920 --> 00:49:37.639 that way, then you know, nothing is really off the table. 979 00:49:39.039 --> 00:49:39.679 We get to use it. 980 00:49:39.760 --> 00:49:41.800 We get to say express you unius as a way 981 00:49:41.840 --> 00:49:43.079 to explain how we're reading a text. 982 00:49:43.079 --> 00:49:45.480 But we could just explain what that means, right, And. 983 00:49:45.559 --> 00:49:47.639 So you like, how do we you know, what does 984 00:49:47.679 --> 00:49:50.840 an ordinary reader of English or a legal reader of 985 00:49:50.840 --> 00:49:53.920 English think about these terms and how they fit together? 986 00:49:54.639 --> 00:49:56.920 You know, we have a shorthands and I don't think 987 00:49:57.039 --> 00:49:59.239 that changes after a little propriate all. 988 00:49:59.239 --> 00:50:02.079 Right, So Jed Dray you have you say you can't 989 00:50:02.119 --> 00:50:04.239 recall ever citing Chevron, and maybe I have. 990 00:50:04.320 --> 00:50:07.320 I can't recall someone's probably like just doing a. 991 00:50:07.280 --> 00:50:11.000 West Saucer or something. But the question they want to 992 00:50:11.039 --> 00:50:14.480 know is have either of you ever cited local Bright 993 00:50:14.559 --> 00:50:15.280 in an opinion? 994 00:50:16.559 --> 00:50:16.760 Yeah? 995 00:50:16.800 --> 00:50:21.199 Sure I have, Yeah, Okay, yeah, for for what purpose? 996 00:50:21.280 --> 00:50:25.039 It's like like just a general statement that we just 997 00:50:25.119 --> 00:50:27.519 decided what the law is, or is there any is 998 00:50:27.519 --> 00:50:30.119 there any particular part of lope for Bright that you 999 00:50:30.119 --> 00:50:32.599 find yourself most likely to side because it comes up 1000 00:50:32.840 --> 00:50:34.000 in the work that you do. 1001 00:50:36.559 --> 00:50:38.440 I guess also, So I mean I said earlier that 1002 00:50:38.480 --> 00:50:40.920 a lot that most of the challenges to agency action 1003 00:50:41.000 --> 00:50:43.199 that come up in my court are immigration and so 1004 00:50:43.360 --> 00:50:46.960 security cases. So I did have a case this past 1005 00:50:47.079 --> 00:50:51.159 term that presented the question of whether some old precedent 1006 00:50:51.159 --> 00:50:55.360 that was adopted before the real id Act survived the 1007 00:50:55.360 --> 00:50:55.920 real id. 1008 00:50:55.960 --> 00:51:00.239 Act, and we said that it did not. 1009 00:51:01.840 --> 00:51:04.039 And then there was sort of a hierarchy of why, 1010 00:51:04.280 --> 00:51:06.800 like it conflicts with the text of the real Ideact, 1011 00:51:07.360 --> 00:51:10.480 other circuits have adopted the same conclusion. 1012 00:51:11.079 --> 00:51:12.320 And then I. 1013 00:51:12.079 --> 00:51:15.159 Also said, the BIA has the BIA, which is the 1014 00:51:15.159 --> 00:51:18.159 Board of Immigration Appeals, which is the agency, has also 1015 00:51:18.199 --> 00:51:20.400 adopted that same illusion. Now, maybe in an era of 1016 00:51:20.480 --> 00:51:24.079 Chevron difference, that might have been higher up in the hierarchy, 1017 00:51:24.079 --> 00:51:25.960 and I would have said we were bound to defer 1018 00:51:26.400 --> 00:51:28.840 to their view of it. But I guess it came third. 1019 00:51:28.880 --> 00:51:32.960 I don't remember the list of reasons, but I said, well, 1020 00:51:33.000 --> 00:51:36.519 that's important because you know, an agency that has expertise 1021 00:51:36.559 --> 00:51:39.280 in administering

a statute, you know, we should pay attention 1022 00:51:39.320 --> 00:51:42.360 to what they say. And so I guess I cited 1023 00:51:42.400 --> 00:51:45.159 lower Bride for that proposition. But of course it came after, 1024 00:51:45.440 --> 00:51:47.840 you know, talking about the text of the statute and 1025 00:51:47.880 --> 00:51:52.639 so on. But you know that is some support, you know, 1026 00:51:52.679 --> 00:51:55.239 for how you should understand a statute, if an agency 1027 00:51:55.239 --> 00:51:57.800 that is familiar with administering it and adjudicating it thinks 1028 00:51:57.840 --> 00:52:01.519 that it had it requires a particular result, all right. 1029 00:52:01.639 --> 00:52:05.119 So we talked a little bit about some of the 1030 00:52:05.159 --> 00:52:09.199 lower Bright carve outes where deference might still be allowed 1031 00:52:09.239 --> 00:52:11.920 even though Chevron's presumption has gone. So here's a question, 1032 00:52:12.280 --> 00:52:14.960 what are the indicators you look for as a judge 1033 00:52:15.000 --> 00:52:18.079 in determining whether Congress has left such. 1034 00:52:17.880 --> 00:52:19.440 A gap for an agency to fill? 1035 00:52:19.760 --> 00:52:22.920 Like, how do you know if it's say an express 1036 00:52:22.960 --> 00:52:25.079 delegational what do they mean to be expressed? Or how 1037 00:52:25.079 --> 00:52:26.760 do you know this is one of those things where 1038 00:52:26.800 --> 00:52:29.400 Congress says even after Loper, even after Loper write, we 1039 00:52:29.400 --> 00:52:30.360 still want you to defer. 1040 00:52:30.639 --> 00:52:35.559 How would you tell I guess I have. 1041 00:52:36.679 --> 00:52:39.239 Neither before Loper Bright nor now do I think about 1042 00:52:39.280 --> 00:52:42.079 this as a matter of deference? Like to me, there's 1043 00:52:42.159 --> 00:52:46.280 a question like is the agency operating within its statutory authority? 1044 00:52:46.840 --> 00:52:49.320 And then if it is, then you know there might 1045 00:52:49.360 --> 00:52:53.119 be other arguments that it was unreasonable or arbitrary and capricious, 1046 00:52:53.159 --> 00:52:55.239 but those are kind of separate. So the is it 1047 00:52:55.360 --> 00:53:00.119 inside the box the statutes box? And then you know 1048 00:53:00.199 --> 00:53:03.559 within that space, like if there's certain you know, judgment 1049 00:53:03.639 --> 00:53:06.280 calls that have been left to the agency, then that's 1050 00:53:06.320 --> 00:53:10.840 that's fine because it's within their statutory authority. And so 1051 00:53:10.880 --> 00:53:15.880 I don't know that that is necessarily deference. It's just 1052 00:53:15.920 --> 00:53:17.960 sort of thinking about what is the agency allowed to 1053 00:53:17.960 --> 00:53:20.599 do under law, and then I guess have they done 1054 00:53:20.639 --> 00:53:23.480 that in a reasonable way? And that maybe that reasonability 1055 00:53:23.519 --> 00:53:27.400 determination is one on which

we you know, they have 1056 00:53:27.480 --> 00:53:31.920 some leeway, but not complete leeway, you know, even unreasonable. 1057 00:53:32.039 --> 00:53:32.719 Yeah, I think that's right. 1058 00:53:32.800 --> 00:53:35.719 So, so, like I said earlier, if Congress provides some 1059 00:53:35.800 --> 00:53:39.320 kind of open textured language that says, do what's reasonable, 1060 00:53:39.400 --> 00:53:42.880 like they say, put the transmitters or reasonable distance between 1061 00:53:42.880 --> 00:53:44.840 each other, and they put them fifteen feet apart and 1062 00:53:44.880 --> 00:53:49.320 not twenty feet apart, and somebody challenges the determination. I 1063 00:53:49.320 --> 00:53:51.519 don't think a court should write an opinion that says 1064 00:53:51.599 --> 00:53:55.239 the best meaning of the word reasonable is fifteen. 1065 00:53:54.880 --> 00:53:55.960 Rather than twenty feet. 1066 00:53:56.679 --> 00:53:59.760 Right. The answer is, actually, the statute does not require 1067 00:53:59.800 --> 00:54:02.280 them to do it twenty feet raven than fifteen feet. 1068 00:54:02.519 --> 00:54:04.719 They took some action which is within the bounds of 1069 00:54:04.719 --> 00:54:08.159 the statute, and so the challenger fails to say a claim. Right. 1070 00:54:08.239 --> 00:54:11.519 So some people talk about the worry about ossification after 1071 00:54:11.679 --> 00:54:15.639 lowber Bright, because you need to reach statutory holdings or 1072 00:54:15.679 --> 00:54:19.039 interpretation holdings. But actually, if you understand that a lot 1073 00:54:19.079 --> 00:54:21.840 of these questions are not really saturtary interpretation. 1074 00:54:21.440 --> 00:54:24.800 Questions, then there's less ossification. I think. 1075 00:54:25.039 --> 00:54:27.199 The other kind of case is the one where there's 1076 00:54:27.239 --> 00:54:30.719 some kind of term that Congress says they want the 1077 00:54:30.760 --> 00:54:35.280 agency to elaborate, like unfair labor practice or method of 1078 00:54:35.280 --> 00:54:39.559 competition or something which maybe they're expressly authorized to play 1079 00:54:39.559 --> 00:54:41.800 out through regulation or through a. 1080 00:54:41.800 --> 00:54:42.719 Kind of adjudication. 1081 00:54:43.320 --> 00:54:46.559 In most cases, Congress just says that expressly and again 1082 00:54:46.639 --> 00:54:50.159 that's the agency's job is to have those kinds of adjudications, 1083 00:54:50.159 --> 00:54:53.199 and we police the bounds of it, but don't say what. 1084 00:54:53.320 --> 00:54:56.000 That those things might be on constitutional valegations. 1085 00:54:56.000 --> 00:54:58.159 Well, that's a separate question. So I guess I'm confining 1086 00:54:58.199 --> 00:55:00.480 myself to the lower Bright question. But yeah, it might 1087 00:55:00.519 --> 00:55:03.760 be that there's some other reason why that's why that's impermissible. 1088 00:55:03.800 --> 00:55:06.400 But in terms of the statue of interpretation

question, when 1089 00:55:06.440 --> 00:55:09.000 it's expressed, it's not hard to identify. 1090 00:55:09.760 --> 00:55:11.920 It seems to me it's not very often going to 1091 00:55:11.960 --> 00:55:12.920 be implicit. 1092 00:55:14.840 --> 00:55:17.519 But you know, sometimes we do look at things that 1093 00:55:17.519 --> 00:55:20.039 are implicit based on the structure of the statute overall. 1094 00:55:20.360 --> 00:55:22.400 And so that's also not really a new challenge. 1095 00:55:22.800 --> 00:55:26.039 All right, So before there was Chevron, there was skid more. 1096 00:55:27.199 --> 00:55:30.000 Do we see Lope or bright as a return to 1097 00:55:30.119 --> 00:55:33.920 a resurgence of pre Chevron standards like skid Moore or 1098 00:55:33.960 --> 00:55:37.320 is just an entirely new way of evaluating agency action? 1099 00:55:40.280 --> 00:55:43.159 This is a very DC ADMIN law. I was going 1100 00:55:43.199 --> 00:55:44.920 to say, to explain to. 1101 00:55:44.880 --> 00:55:48.519 The audience what skin Moore differences or No, not this audience. 1102 00:55:48.920 --> 00:55:50.920 We're run out of time. Let's just keep going. 1103 00:55:51.480 --> 00:55:55.400 So hope everyone here knows what skidmore is, and if not, 1104 00:55:55.760 --> 00:55:57.760 then this question is for the one person who does. 1105 00:55:57.880 --> 00:56:01.639 So. I guess I just I mean a Skidmore difference 1106 00:56:01.760 --> 00:56:04.679 just says that you should adopt the agency's position to the. 1107 00:56:04.679 --> 00:56:07.679 Extent that you find it persuasive and like fine, like 1108 00:56:07.960 --> 00:56:08.239 you know. 1109 00:56:08.800 --> 00:56:10.880 Okay, skinboard just doesn't do a lot of work. 1110 00:56:10.960 --> 00:56:14.440 Yes, I don't think, I mean to the extent that it. 1111 00:56:14.440 --> 00:56:17.239 It just tells you don't like, just completely dismiss and 1112 00:56:17.280 --> 00:56:20.440 ignore what the agency says about its authority or about 1113 00:56:20.480 --> 00:56:21.440 the underlying facts. 1114 00:56:21.440 --> 00:56:22.280 I think that that's. 1115 00:56:23.639 --> 00:56:26.239 A good instinct to have, like you should consider them 1116 00:56:26.280 --> 00:56:28.920 serious arguments from the agency. And so to the extent 1117 00:56:28.920 --> 00:56:32.000 that Skinboard stands for that proposition, that's fine, but it 1118 00:56:32.039 --> 00:56:35.639 doesn't give it authoritative weight. As I said, I think 1119 00:56:35.639 --> 00:56:38.280 one of the benefits of loop or bright is to say, 1120 00:56:38.880 --> 00:56:43.320 the agency's expertise doesn't necessarily translate into automatic legal authority, 1121 00:56:43.599 --> 00:56:46.840 and so you could draw on expertise from other sources. Right, 1122 00:56:46.880 --> 00:56:49.320 there might be a debate within a particular industry about 1123 00:56:49.360 --> 00:56:53.880 how to view a kind of technical question, and so 1124 00:56:54.000 --> 00:56:56.320 you don't necessarily have to adopt the agency's view if 1125 00:56:56.320 --> 00:56:58.559 you don't find it persuasive, And so I think that 1126 00:56:58.559 --> 00:57:01.039 that is that is good. I mean, I guess in 1127 00:57:01.079 --> 00:57:03.639 terms of your general question about skin Moore making a comeback, 1128 00:57:03.679 --> 00:57:08.280 it is possible that you know of Court of Appeals 1129 00:57:08.280 --> 00:57:10.800 that really liked Share Run Difference and wants it back. 1130 00:57:11.239 --> 00:57:13.880 Could just do Shevrun Difference under the name skin Moore. 1131 00:57:14.000 --> 00:57:16.599 Like that's not impossible, but it seems to me that 1132 00:57:16.599 --> 00:57:18.400 that you can tail when it does that, and it 1133 00:57:18.400 --> 00:57:21.320 does seem like it would be wrong and so eventually 1134 00:57:21.360 --> 00:57:22.639 it would be rebuked. 1135 00:57:23.320 --> 00:57:26.639 I mean, I think skidmore just recognizes what federal courts 1136 00:57:26.639 --> 00:57:30.639 have always done, which is treat the political branches respectfully. Right, 1137 00:57:30.760 --> 00:57:33.639 you know, you are respectful of Congress's judgments and the 1138 00:57:33.639 --> 00:57:36.920 Executive's judgments. But I think Lope or Bright rightly says 1139 00:57:36.960 --> 00:57:39.400 what has also been the case since our founding, which 1140 00:57:39.440 --> 00:57:41.800 is that judges have an independent duty to say what 1141 00:57:41.840 --> 00:57:45.480 the law is. So that doesn't preclude respectfully thinking about 1142 00:57:45.519 --> 00:57:48.320 how the political branches understand their authorities. But it is. 1143 00:57:49.039 --> 00:57:51.880 It's it's a far cry from being respectful to to 1144 00:57:52.199 --> 00:57:54.559 you know, just deferring to their view of their authority. 1145 00:57:54.800 --> 00:57:56.079 All right, this is not going to be a fair 1146 00:57:56.199 --> 00:57:58.559 question for Judge Row because you were not here earlier. 1147 00:57:59.119 --> 00:58:02.719 But here's the question. And an earlier panel argued that 1148 00:58:02.840 --> 00:58:07.559 deregulator and should be panelists probably argue that deregulation activities 1149 00:58:07.599 --> 00:58:10.480 should not be subject to the same procedures and justification 1150 00:58:10.559 --> 00:58:11.639 as new regulations. 1151 00:58:12.679 --> 00:58:13.800 Do you agree. 1152 00:58:15.800 --> 00:58:19.800 You mean political like Owira, No, I think, well, I 1153 00:58:19.800 --> 00:58:21.599 don't know what the question is, I said, But earlier 1154 00:58:21.880 --> 00:58:26.400 James Burnham essentially said that the state Farm rule does 1155 00:58:26.440 --> 00:58:29.159 not make any sense. Like heard, look is one thing, 1156 00:58:29.199 --> 00:58:31.320 but hard look when you're trying to deregulate. It should 1157 00:58:31.320 --> 00:58:32.880 not be the same as when you're trying to regulate, 1158 00:58:32.920 -->

00:58:36.320 because you're taking away the burden rather than putting it on. That's, 1159 00:58:36.360 --> 00:58:39.159 of course not like the law under state farm. So 1160 00:58:40.159 --> 00:58:44.039 what do you think about that? You were here, Steve 1161 00:58:44.119 --> 00:58:46.320 so you can ask answer the question. 1162 00:58:46.760 --> 00:58:48.480 Yeah, well, I mean you can just explained the idea. 1163 00:58:48.639 --> 00:58:50.840 So I don't know if I need to be here. 1164 00:58:50.960 --> 00:58:54.559 I mean, I just explain their AWESO. Now you can 1165 00:58:54.679 --> 00:58:57.719 answer the au There are I mean, there are agency 1166 00:58:57.800 --> 00:59:03.039 regulations where it's not totally obvious that one that having 1167 00:59:03.079 --> 00:59:05.920 it imposes a burden and getting rid of it relieves 1168 00:59:05.960 --> 00:59:06.400 a burden. 1169 00:59:07.079 --> 00:59:08.760 I mean, I guess if you had that kind of case, 1170 00:59:08.800 --> 00:59:09.199 it should be. 1171 00:59:09.199 --> 00:59:11.519 Pretty easy to do a repeal because you can just explain, 1172 00:59:11.559 --> 00:59:13.480 we don't think that this is justified anymore. 1173 00:59:15.199 --> 00:59:15.400 You know. 1174 00:59:15.480 --> 00:59:18.719 I think James was sort of saying that in a 1175 00:59:18.719 --> 00:59:22.440 bunch of circumstances, the agent under the APA, the agency 1176 00:59:22.480 --> 00:59:26.960 would have good cause for removing the regulation. You know, 1177 00:59:27.000 --> 00:59:28.679 I guess I'm going to preserve judgment on that to 1178 00:59:28.679 --> 00:59:30.480 the extent that that might be a sort of question 1179 00:59:30.559 --> 00:59:33.960 that might be litigated. But I do kind of think 1180 00:59:33.960 --> 00:59:37.639 in the case you described, where the agency is believing 1181 00:59:37.679 --> 00:59:41.800 the burden because it doesn't think imposing the burden is 1182 00:59:41.920 --> 00:59:45.639 justified by its regulatory objectives any longer. It should be 1183 00:59:45.639 --> 00:59:48.639 pretty easy to write a proposed rule that just says that, 1184 00:59:49.800 --> 00:59:51.639 and then that would be an adequate explanation. 1185 00:59:53.440 --> 00:59:55.760 I guess I would say that seems like a nice 1186 00:59:56.039 --> 01:00:00.039 rule for private ordering. It obviously isn't the state of 1187 01:00:00.079 --> 01:00:04.360 the law. But I mean, it's just very much not 1188 01:00:04.440 --> 01:00:06.639 the state of the law. I mean, to undo a 1189 01:00:06.639 --> 01:00:09.320 big rule, you have to do another big rule explaining 1190 01:00:09.360 --> 01:00:11.960 why you're undoing the other big rule. And maybe we 1191 01:00:12.000 --> 01:00:14.840 should have a different procedure, but but we don't. 1192 01:00:14.960 --> 01:00:17.159 So when you are running AIRA, did you ever like 1193 01:00:17.320 --> 01:00:21.239 just like a state farm, what was that privilege? 1194 01:00:21.239 --> 01:00:23.559 There are lots of things that I shook my fids down, 1195 01:00:23.639 --> 01:00:25.559 and I was when I was head of AHIRA. But 1196 01:00:26.840 --> 01:00:28.760 it does seem you know, I mean, I remember talking 1197 01:00:28.800 --> 01:00:30.519 to the President about this. It's like, well, to undo 1198 01:00:30.559 --> 01:00:33.679 this rule, we have to do another rule. And sometimes 1199 01:00:33.719 --> 01:00:35.920 that doesn't seem like it makes a lot of sense. 1200 01:00:36.199 --> 01:00:38.679 But then courts would strike down, you know, kind of 1201 01:00:38.719 --> 01:00:41.559 cursory rules that said we just don't think this old 1202 01:00:41.639 --> 01:00:42.360 rule makes sense. 1203 01:00:42.719 --> 01:00:44.920 So all right, so we're coming towards the end, so 1204 01:00:44.920 --> 01:00:47.599 we probably have time for maybe one more big question, 1205 01:00:48.039 --> 01:00:50.320 which so I'm going to not make it through all 1206 01:00:50.320 --> 01:00:52.679 of these, But here's the question I'm just curious. 1207 01:00:52.679 --> 01:00:53.719 I think will be a kind of a good way 1208 01:00:53.719 --> 01:00:54.320 to wrap it up. 1209 01:00:54.840 --> 01:00:57.559 Ten years from now, is Low or Bright going to 1210 01:00:57.559 --> 01:01:01.039 be seen as a landmark decision that people are still 1211 01:01:01.079 --> 01:01:03.239 talking about and it's like one of the things you 1212 01:01:03.280 --> 01:01:05.880 could have a whole ballroom full of people thinking about. 1213 01:01:06.360 --> 01:01:08.159 Or is it just going to be just one of 1214 01:01:08.159 --> 01:01:10.480 those things we've just moved on? So what I think 1215 01:01:10.559 --> 01:01:13.639 is what we right going to be a true hallmark 1216 01:01:14.039 --> 01:01:15.000 landmark decision. 1217 01:01:16.519 --> 01:01:18.599 Who wants to take it first? No, I don't think so. 1218 01:01:19.039 --> 01:01:20.639 I mean I think, you know, when you think about 1219 01:01:20.679 --> 01:01:25.639 the our experience with Chevron difference, it's sort of a blip, right, 1220 01:01:25.719 --> 01:01:28.480 It like comes about in the eighties, it takes some 1221 01:01:28.599 --> 01:01:31.239 years to take hold, and then toward the end of 1222 01:01:31.280 --> 01:01:34.400 its life it's being subject to all sorts of qualifications 1223 01:01:34.440 --> 01:01:37.039 about when you could apply it and circumstances and so on, 1224 01:01:37.480 --> 01:01:39.280 and then the Screme Court starts citing it for a 1225 01:01:39.360 --> 01:01:42.320 number of years before it. 1226 01:01:42.239 --> 01:01:43.559 Formally overrules it. 1227 01:01:44.119 --> 01:01:46.760 And so it sort of seems to me like that 1228 01:01:46.840 --> 01:01:50.159 kind of the period in which courts are doing Chevron 1229 01:01:50.239 --> 01:01:52.519 difference will be seen as a kind of a curiosity, 1230 01:01:53.280 --> 01:01:55.519 not that Low or Bright itself is a kind of 1231 01:01:55.679 -->

01:01:59.320 landmark decision because it got rid of something that you know, 1232 01:01:59.679 --> 01:02:00.920 was not around for very long. 1233 01:02:01.360 --> 01:02:04.880 I mean, Chevron was the most cited or so it's why, 1234 01:02:05.159 --> 01:02:07.039 you know, all due respect to all the law professors 1235 01:02:07.079 --> 01:02:12.000 who spent their whole careers expounding upon the scope of. 1236 01:02:13.639 --> 01:02:17.000 But I I never wrote about Chevron. 1237 01:02:17.519 --> 01:02:21.000 No, I just kind of don't think that that there's 1238 01:02:21.039 --> 01:02:22.960 gonna be a lot you know, that we're going to 1239 01:02:22.960 --> 01:02:26.559 be justified and obsessing over it because you know, the 1240 01:02:26.599 --> 01:02:28.400 case law is not going to be durable. It's going 1241 01:02:28.440 --> 01:02:35.880 to kind of move on from the Chevron cases. And uh, 1242 01:02:35.920 --> 01:02:40.239 you know, Loper Bright kind of you know, doesn't do 1243 01:02:40.320 --> 01:02:42.800 a radically new thing. It kind of restores the status 1244 01:02:42.880 --> 01:02:45.280 bo anti And so I'm not sure we're really talking 1245 01:02:45.280 --> 01:02:47.320 about all the implications of lower right so much. It's 1246 01:02:47.320 --> 01:02:50.159 just sort of saying, here's how we do sted store interpretation, 1247 01:02:50.360 --> 01:02:51.559 all right, and Jed dred last. 1248 01:02:51.480 --> 01:02:52.119 Right is yours. 1249 01:02:52.360 --> 01:02:56.199 Okay, Well, I again agree with what Steve said, Local 1250 01:02:56.320 --> 01:02:59.039 right very much is a return to the normal way 1251 01:02:59.079 --> 01:03:01.920 of doing things. But I I'd also just highlight something 1252 01:03:01.960 --> 01:03:03.920 that we didn't really talk about much, which is that 1253 01:03:04.039 --> 01:03:06.800 all these discussions about Chevron and Loper Bright are all 1254 01:03:06.840 --> 01:03:11.400 about Article two and Article three. Right, how do the executive, 1255 01:03:11.400 --> 01:03:13.280 how does the executive and the courts, how do they 1256 01:03:13.360 --> 01:03:18.079 interact in this agency space? And maybe what we will 1257 01:03:18.079 --> 01:03:21.199 be talking about in ten years is Article one and 1258 01:03:21.360 --> 01:03:25.679 Congress's power right to legislate more specifically or to you know, 1259 01:03:26.400 --> 01:03:29.400 kind of give more clear direction to agency, or maybe 1260 01:03:29.400 --> 01:03:31.960 there'll be a revival of the non delegation principle. And 1261 01:03:32.639 --> 01:03:35.400 I do think this whole debate just shows how much 1262 01:03:35.440 --> 01:03:38.199 we've shifted away from Article one into Article two and three. 1263 01:03:38.760 --> 01:03:48.840 So okay, all right, thank you so much, and to 1264 01:03:48.920 --> 01:03:51.480 the audience. You can still send us emails with questions 1265 01:03:51.599 --> 01:03:56.079 or comments about the show at CSAs, at GMU dot ADU. 1266 01:03:56.679 --> 01:03:58.360 We read all of them and work to make this 1267 01:03:58.599 --> 01:04:00.599 the best show it can be. If you like what 1268 01:04:00.639 --> 01:04:02.960 you heard today, please consider sharing the episode with a 1269 01:04:03.039 --> 01:04:05.519 friend and leaving us a five star review wherever you're 1270 01:04:05.519 --> 01:04:08.719 listening so we can keep bringing you more conversations like 1271 01:04:08.800 --> 01:04:10.960 this one, and if you'd like to stay on top 1272 01:04:11.000 --> 01:04:13.639 of our latest research, papers and events, sign up for 1273 01:04:13.679 --> 01:04:16.280 our email list by clicking the link in our show notes. 1274 01:04:16.800 --> 01:04:20.920 Thanks