Judging After Loper Bright

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Welcome back to Gray Matters, the podcast of the Seaboarding
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Gray Center for the Study of the Administrative State. I'm
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jace LINCTON, the Gray Center's Policy and Strategy Director. This
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episode is the final panel discussion from our October conference.
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You will hear Judge Naomi Row from the DC Circuit
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and Judge Stephen Minashi from the Second Circuit talk with
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Aaron Nielsen from the University of Texas at Austin about
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how lowber Bright has affected the way they approach their
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jobs as judges.
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Enjoy Before we jump in and I introduced the moderator,
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I just want to say just a brief word about
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one of our other speakers.
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On this panel. It happens that this year.
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Is the tenth anniversary of the founding of the Seaboarding
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Gray Center. It wasn't originally called the Seaboarding Gray Center.
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It was called just the Center for the Study of
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the Administrative State. Rolls off the tone it was found
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I always tell students when I'm introduced. Sometimes I'm introduced
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as running the Center for the Administrative State. I say, no,
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that's actually Yale. But it was founded ten years ago
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by Professor Naomi Row. At Scalia Law School now Judge
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Naomi Row. She led the Center for its first several
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years before being called into public service, first at AIRA
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and the bench, and when she went into government, she said, Adam,
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could you possibly run the Grace Center for a year
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until I come back a year or two. I'm now
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eight years into my one year side job, but I'm
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enormously grateful for that.
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She grades me every year I get a report card.
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But in all seriousness, I do want to say, since
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she's here and it's the tenth anniversary, everything we do now,
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even ten years later, is basically just an outgrowth of
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what she started ten years ago, whether it's the conferences,
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the research round tables. If she were to come back tomorrow,
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and you're welcome anytime, if she were to come back tomorrow,
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it would all look very familiar to her. We're very
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grateful to get to do what we do based on
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the foundation that she laid for it, and the fact
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that she gets to be that we get to invite
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her here today as a speaker is an extra treat
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I also I'll just point out with Judgemanashy, we have
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a reunion of the Scalia Law faculty Alumni Society. I
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see Judge Mnashi himself was the Scalia law professor and
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an early supporter of the Gray Center's work. I've already
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introduced Professor Nielson once before, but for those who missed
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the Panel of Federal Reserve, I'll just say very briefly,
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he is a professor of law at U T. Austin
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and a senior fellow at the Civitas Institute. He just
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returned to academia from service in the Solicitor General's Office
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in Texas. He was the Solicitor General for the state
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of Texas, and if you heard his brief but notable
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criticisms of California in the Federal Reserve panel, you'll know
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he still is very much a Texan.
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But we are grateful that Aaron joined.
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Us not once but twice today, and now I'll turn
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it over to him.
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Thanks sir.
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All right, that's probably the first time I've actually ever
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been called the Texan.
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I will take that.
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I spent ten years as a professor at b YU,
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and suddenly, out of the blue, I became Solicitor General
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of Texas, and it took a while for me to
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feel comfortable walking into court saying I'm here on behalf
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of the state of Texas. I never got the cowboy
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boots that head Cruise used to wear to court, but
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you know, I'm honored to be here with two of
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my favorite people, Judges Rao and Minashi. I want to start.
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We all know who you are, but just quick who
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you are. Judge Mnashy is a judge on the Second Circuit.
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He was a professor at George Mason Antonin Scalley School
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of Law, and he was a high ranking official in
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the first Trump administration. Any clerk for Justice Alito. Judge
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Row was also used to be a professor at Mason.
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She also was a high ranking official in the first
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Trump administration. She was head of Leleira and she previously
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clerk for Justice Thomas. But I'm gonna say something different
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about both of you. I like to say this about
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our whenever we have guests, is like a nice thing
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about them. And twenty years ago, I was an intern
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for Judge.
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Row in the White House.
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She was my boss, and Judge Row is one of
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the best bosses I've ever had.
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We had a lot of fun together.
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So when I was going on to get to try
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to get a clerkship. She was my clerkship letter writer,
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so we had been friends forever for so week.
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Yeah well, yeah, well we'll talk about that.
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And then while I was clerking, I met Judge Mnashy.
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I was clerking for Judge Janice Rogers Brown and he
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was clerking for Judge Doug Ginsburg, who we just saw
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earlier today. And I will say among the clerks, we
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all knew that Judge Mnashi was gonna go something famous
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because he was so scholarly, even among the clerks, and
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we're a very nerdy bunch, and even then he's like,
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oh wow, like Steve and Judge Vanashi was like so
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far into it in ways that we all learned from.
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So I'm just grateful to be here for both of you.
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And today we're going to talk about judging after a
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lower bride, in other words, in the world where no
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more Chevron deference. So we thought it'd be interesting to
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hear from a judge on the second circuit and a
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judge on the DC Circuit.
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And how it's going.
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So I'm gonna start with just a general kind of
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table setting question, which is like how do you do interpretation,
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like just your just do we know of the audience, like,
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what is your approach to interpretation generally, and then we
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can see how that fits into.
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Chevron and lower Bride.
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So we'll start, I guess with you, Judge Vanashi, Well,
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thanks very much.
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That was very gracious, and I'm delighted to be here.
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It's good to be back at school of law school
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sort of in this hotel, but I'm delighted to be
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part of it. In terms of, you know, how you
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approach tatutory interpretation questions, I kind of thought it would
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be less interesting to just say we're all textualists who
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start with the text and focus on it. So I
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thought maybe i'd sort of point out some areas where
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there might be disagreements even among.
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Textualists, but I have a view.
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So one of them is so, of course you do
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start with the text of the text is what is controlling,
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you know, but context also matters a lot, right, So
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there's Sam Bray wrote an article I really like about
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the mischief rule about what the mischief is that the
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legislature was trying to get at. I think that that
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is a legitimate thing for somebody to think about and
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understanding the meaning of a text, you know, the mischief
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against which it was directed. Two is it is coherent
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talk about statutory purpose. You don't override a text with
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an unenacted purpose that you discover in the legisative history,
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but it is you do. The statute is meant to
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accomplish something and has to be coherent overall. I think
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that you do think about statutory purpose to some extent.
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Three is you know legislative history. As I just mentioned,
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there are very improper uses of it. But I tend
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to think if you're willing to look at the federalist
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papers to understand the meaning of the Constitution, there might
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be some cases in which the contemporaneous legislative history could
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illuminate how the language of the statute was understood. You know,
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I do think that the Justice Scalia prohibition and legislative
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history is generally prophylactic. I think actually it was Justice
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Alito who said at some point that Justice Scalia told
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judges to avoid legislative history of the way you tell
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an alcoholic to avoid alcohol.
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I meaning that it is pretty prophylactic because there are
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very bad uses of it.
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But I don't know if there needs to be categorically
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off the table.
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And I guess.
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The fourth thing that occurs to me is sometimes this
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goes under the heading of legal versus ordinary meaning. Sometimes
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you read some textualists and you'd think, generally you just
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do the ordinary language linguistic meaning of the statute. But
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then there are some exceptions when there's a legal term
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of art or legal terms, and I tend to think
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that legal language is more pervasive. And ultimately, our goal
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is to determine the law that the text creates, and
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sometimes that means it's not exactly what the linguistic meaning
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of the text is. So so anyway, so I do
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think that we are rooted in the text, but those
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are some areas where there's some disagreements, even among self
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described textualists.
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Yeah, it's very helpful. I think we're going to have
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a theme today, which is that Steve and I are
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going to agree on a lot of things. So Aaron,
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your job will be to try to find areas where
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maybe we don't agree. But I very much take all
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the things that you said, you know, in general, I
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start with the text. I often read not just the
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provisions that are issued, but the entire public law that
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the provision is a part of. Right looking at the structure.
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Oftentimes you get meaning from looking at all the pieces together.
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And I taught a taught statutory interpretation for I think
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almost eleven years at George Mason, and I used to
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say to my students, and I think I believe this
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even more now as a judge, which is that interpretation
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is in part science, but a lot of it is
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an art. And you know, in Lopra Bright, the Supreme
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Court says we have to find the best meaning of
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the statute. And I agree very much with Steve that
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that often requires not just being you know, kind of
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a high bound literalist as to, you know, looking up
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the words in the dictionary, but really thinking about what
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the words mean in context. You know, what was what
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is this law trying to do? You know, are there
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any constitutional or common law backdrops that inform the meaning
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of the statute. And you really need to think of
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all of those things together to find ultimately the best
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meaning of the law. So even I think for people
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who are committed formalists and committed textual there's a fair
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amount of judgment that's involved. And I think if you
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read Justice Gale's opinions, not necessarily his essays or speeches.
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You can see that. You can see the kind of
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judgment he applied statutory interpretation, which is often much more
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wide ranging than you know. Just read the text, Read
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the text, Read the text.
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All right, Well, I guess we'll get into Chevron Loperbright
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in a second. But on this subject you will see
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different judges who will say, well, all right, you've just
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put everything in the mix. I'm much more going to
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be look at the purpose with this lot supposed to accomplish.
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Do we want that?
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Do we want all judges to be having the same
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general not just broad theory, but like how they actually
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do it. Do we want all judges to do the
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same or do we want pluralism and how judges are
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trying to read things? Like what I mean, if everybody
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is doing the same way, we're seeing the same answers
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on all of the questions. So what's going on? Explained?
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Different answers because sometimes the questions are hard. I mean,
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sometimes you do have to.
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Do but are we all doing the same thing? Are
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like your colleagues doing the same thing?
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As a practical matter, not everybody is doing the same thing.
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I think not everybody agrees on the method, right, So
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like I do think that the move toward textualism has
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changed the kind of outer boundaries. Like sometimes you read
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opinions from the DC circuit in the nineteen seventies and
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they're like from a different world, Like there is a
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disregard of the text that I don't think is possible.
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Now everybody roots their answers, you know, at least in
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the text, but a lot of judges might resort to
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ambiguity much more quickly than other judges. They might say, well,
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the text is actually ambiguous, not because of something in
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the text, but because I think Congress had this purpose
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and the purpose doesn't seem to match the text, and
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that's ambiguous, then I'm going to use some other principle.
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And so you know that's not exactly textualism, even the fly.
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Under that banner. So I do think there is a
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diversity of a substantive approaches.
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So there's lot of agreement, but then you're going to
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have disagreements even because as Nao and I just said,
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like a lot of it is more hard than science,
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and so people like comes to different conclusions even if
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they agreed on the methodological principles.
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Yeah, I think one difference is and I agree with
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Steve that not everyone is maybe a true textualist. Right,
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So Justice Kagan famously said we're all textualists now, but
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I'm not sure that all the lower court judges have
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gotten that memo from Justice Kagan. So I think one
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of the differences is is you know, you mentioned that
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we said there are a number of sources that go
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into finding meaning. I think maybe one of the main
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differences is do you use those other sources to get
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at the meaning of the text of the statute, which
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is what I would say we should do. Right? Is
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this a common law term? What is the common law
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meaning versus looking at sources maybe outside the text, you know,
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public policy? Does this make sense? Is it consistent with
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the broader purpose of the statue or with some you know,
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preferred outcome. And I think that is a big difference
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in how people are doing this enterprise of interpretation.
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Yeah, the kind of the classical distinction between textualism and purposeivism.
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And I guess as it's been explained is the textualist
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gives priority to the semantic content of the text because
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they say, well, the text is the vehicle by which,
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you know, you could have the democratic process operate. Maybe
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people in the minority extracted some kind of concession to
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the text and some kind of compromise, and the vehicle
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by which they couldn't negotiate is the precision of the text,
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which might go so far but not further in the
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pursuit of some kind of goal based on that kind
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of give and take. And I think the purposivist says,
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you know, not unreasonably. Come on, people don't really think
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about the text that way. You know, they were trying
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to achieve some kind of policy, and so they would
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prioritize the policy content over it, you know, over the
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semantic content, because they don't really believe that anybody parses
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the text.
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I think that's the basic disagreement.
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And even if there aren't as many people who go
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around calling themselves non textualists like I think that that
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still is a delighting line among judges.
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Okay, so now we come to Chevron, on which for
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decades the familiar two step process or by the end
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like eight steps. But we had the rule, you know,
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is there an ambiguity. If so, is the agency's interpretation reasonable.
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Lower Bright comes along and says, no, no, no, we're
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not doing that.
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Anymore.
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So.
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I guess the question that I have for the two
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of you is, I mean, what do you think of
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lowber Bright itself as a judicial opinion? I know you're
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follow it regardless, but what do you think was it right?
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Was it wrong?
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What do you think of the Court's analysis in the
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case itself?
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I mean, I think lowper Bright was a great decision,
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maybe no surprise to me. Lower Bright was maybe less
295
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of a c change than some people made it out
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to be. I mean, I think Loper Bright sort of
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described what the court was. The Court hadn't applied Chevron
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in some whatever eight or ten years before it decided Loperbright,
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and frankly, in my work, I didn't. I'm not sure
300
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if I've ever cited Chevron in any of my cases.
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And it seems to me that Loper Bright describes the
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way that we should be looking at agency action, which
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is there's first a question of you know, there's a
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question like does the statute allow the agency to do
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00:15:24.799 --> 00:15:27.279
what it did right? And what's the best meaning of
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the statute? Does it give the agency this authority? And
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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,
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and I think an idea that's repeated throughout Loperbright, which
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is that the judiciary is independent and it has an
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independent Article three obligation and responsibility to say what the
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law is. Means that you can't defer to the executive
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branch on legal interpretation. And that seems to me entirely
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correct and consistent with the text and structure of the Constitution.
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Yeah, I mean, in a way, you know, it's a
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pretty the modest decision. It didn't say it's unconstitutional for
317
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Congress to make delegations to agencies. It just said, Chevron
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relandimus presumption that whenever there's an ambiguity in a statute
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that itself is a delegation, that Congress wouldn't have wanted
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the ambiguity resolved by the agency. And that's just an
321
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unjustified presumption. Right, So the Congress said, and the APA
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the course decide questions of law. That is a question
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of law, and so the default rule is maybe Congress
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should decide that question. I mean, the way I had
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always thought about chev Run difference is that there's sort
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of two basic kinds of cases. There's one case where
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Congress uses a word like reasonable, like tells the agency
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00:16:42.919 --> 00:16:45.279
put the transmitters a reasonable distance from each other.
329
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And then when somebody comes in.
330
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And says, well, the agency is acting unlawfully because they
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put them fifteen feet apart instead of twenty feet apart,
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you know, is that right? And the truth is you
333
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don't really need a special doctrine for that, because what
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the agency is doing, it's not interpreting the word reasonable
335
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to mean fifteen feet or twenty feet. It's just acting
336
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within a kind of range of implementation authority that Congress
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has left unspecified. So the person should fail set claim
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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
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it in that case. Then there's another kind of case
341
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where everybody agrees that Congress has spoken to the issue,
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like there's some kind of specific text on point, and
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you think that Congress had an answer in mind, but
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people are disputing have best to interpret it. And in
345
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that kind of case, there's no reason to think that
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Congress would have wanted the agency to decide like they
347
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weren't leaving something unspecified. They had in mind some kind
348
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of an answer and so that's the kind of case
349
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that courts should address. And I kind of think Lilber
350
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Bright says in that kind of case, there's no reason
351
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to think that there's a delegation to the agency. The
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presumption is that Congress would have wanted the courts to
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decide that question and to enforce whatever the answer was
354
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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
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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,
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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
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not true for all administrative last collars, and certainly for
365
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all judges.
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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
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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
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of things.
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But one of the things that.
374
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They found was a difference between DC Circuit judges and
375
00:18:58.119 --> 00:18:59.119
others about Chevron.
376
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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
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01:03:58.599 --> 01:04:00.599
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1268
01:04:00.639 --> 01:04:02.960
you heard today, please consider sharing the episode with a
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01:04:03.039 --> 01:04:05.519
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1270
01:04:05.519 --> 01:04:08.719
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1271
01:04:08.800 --> 01:04:10.960
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01:04:11.000 --> 01:04:13.639
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1274
01:04:16.800 --> 01:04:20.920
Thanks