WEBVTT 1 00:00:02.439 --> 00:00:06.919 Welcome to scot Discast, a project of the Federalist Society for Law and Public 2 00:00:06.960 --> 00:00:11.800 Policy Studies. Our contributors join us from around the country to bring you expert 3 00:00:11.800 --> 00:00:16.679 commentary on US Supreme Court cases as they are argued and the decisions are issued. 4 00:00:16.960 --> 00:00:21.559 The Federalist Society takes no position on particular legal or public policy issues. 5 00:00:21.800 --> 00:00:29.120 All expressions are those of the speaker. Hello, and welcome to scot Discast. 6 00:00:29.359 --> 00:00:32.759 I'm your host, Kyle hammernus On, behalf of the Faculty division of 7 00:00:32.799 --> 00:00:38.039 the Federalist Society. We are here today to discuss Relentless Incorporated versus Department of 8 00:00:38.079 --> 00:00:42.759 Commerce and Lower Bright Enterprises versus Rimondo, which were both argued before the Supreme 9 00:00:42.799 --> 00:00:47.240 Court on January seventeenth, twenty twenty four. It is my honor to introduce 10 00:00:47.240 --> 00:00:52.200 our guests today, John J. Veccioni. John a senior litigation council at 11 00:00:52.280 --> 00:00:56.799 New Civil Liberties Alliance, and he's the council record for Relentless. And with 12 00:00:56.880 --> 00:00:59.880 that, I'd like to turn things over to our guests to summarize how the 13 00:01:00.000 --> 00:01:07.879 he's got to the Supreme Court and to discuss the oral arguments. All right, 14 00:01:07.959 --> 00:01:11.359 thank you very much for that kind introduction, and I want to thank 15 00:01:11.400 --> 00:01:15.920 the Federal Society. This is always, I think useful for anyone who has 16 00:01:15.959 --> 00:01:19.760 an interest in the Supreme Court. These are always a good opportunity to ask 17 00:01:19.879 --> 00:01:26.000 questions which you wouldn't normally get. So we had two cases argued before the 18 00:01:26.000 --> 00:01:33.040 Supreme Court. Relentless versus Commerce, which was our case at New Civil Liberties, 19 00:01:33.519 --> 00:01:38.680 was argued by Romance Roman Martinez of Lathanman Watkins. And then there was 20 00:01:38.680 --> 00:01:41.959 the Lower Bride case, which was brought by my old friends at cause of 21 00:01:42.000 --> 00:01:47.599 action and that emerged from the DC circuit, merged from the first circuit, 22 00:01:48.200 --> 00:01:53.719 and it was argued by Paul Klement. And so the way it worked, 23 00:01:55.400 --> 00:02:00.159 which is a little unusual, was that we went first and we had regular 24 00:02:00.280 --> 00:02:07.639 argument. Then this Justice Jackson, who was recused because she had heard the 25 00:02:07.759 --> 00:02:13.400 oral argument of Eric Bollander cause of action in the DC circuit, and they 26 00:02:13.639 --> 00:02:19.199 normally recuse in those circumstances. So it was an eight member bench when when 27 00:02:19.240 --> 00:02:24.159 lober Bright came up, but the questions were continuous from one argument to the 28 00:02:24.199 --> 00:02:30.159 next. One interesting thing the Supreme Court did in this case was allow all 29 00:02:30.240 --> 00:02:37.919 the Amichi briefs in lower Bright to be read in relentless and so and I 30 00:02:37.960 --> 00:02:42.479 think and I think they saved a lot of trees that way. So we 31 00:02:42.560 --> 00:02:46.800 had our own amechi as well. But any anybody who filed in Loper Bright, 32 00:02:46.879 --> 00:02:50.680 it's in our case. So that's the setup of how how the two 33 00:02:50.719 --> 00:02:54.919 cases worked. And now I just want to give a slight synopsis of what 34 00:02:54.960 --> 00:03:00.520 the cases were about and what the question presented was the court. I think 35 00:03:00.599 --> 00:03:04.840 most people tuning into this will have some idea, but just to put us 36 00:03:04.879 --> 00:03:12.280 all on the same page. Loper Bright was filed in the District of Columbia 37 00:03:12.599 --> 00:03:20.240 and there their clients were fishermen primarily from New Jersey Cape May, New Jersey 38 00:03:20.280 --> 00:03:29.319 herring fishermen. And in the local Bright case, the district court had found 39 00:03:29.400 --> 00:03:35.360 that the text was clear that the agency was allowed to put at SE monitors. 40 00:03:35.680 --> 00:03:38.879 There are people go on the boat and count fish and make sure everything's 41 00:03:38.919 --> 00:03:43.400 being all the rules are being followed, that sort of thing. They could 42 00:03:43.400 --> 00:03:49.919 put these ATC monitors on the herring boats and they could charge they could force 43 00:03:50.319 --> 00:03:53.599 each of those boats, which are all small businesses, to enter into contracts 44 00:03:53.680 --> 00:03:59.560 with ATC monitors who do nothing for the boats. They only report to the 45 00:03:59.560 --> 00:04:04.039 government information the government wants. These are not even though they're making more than 46 00:04:04.120 --> 00:04:09.400 fishermen in a lot of cases, they are not doing anything for the boat. 47 00:04:09.479 --> 00:04:16.040 They're a burden to the boat. And the Magazine Stevens Act, which 48 00:04:16.120 --> 00:04:23.519 is that issue, was amended in nineteen ninety to say that observers. Each 49 00:04:23.600 --> 00:04:28.600 boat could be forced to carry observers, and these the course of determined these 50 00:04:28.600 --> 00:04:31.319 are a subset of observers kind of observer. But they didn't say who paid 51 00:04:31.319 --> 00:04:35.279 for it. But for twenty years, the federal government paid for observers. 52 00:04:35.680 --> 00:04:45.399 They appropriated money, and that appropriation paid for the observers. The agencies and 53 00:04:45.519 --> 00:04:51.040 National Fisheries and Noah and Commerce kind of all work on this. They all 54 00:04:51.279 --> 00:04:58.839 determined that they wanted more of these monitors. So they made a ce monitors 55 00:04:58.839 --> 00:05:05.319 who have slightly less training than the former observers, and they were going to 56 00:05:05.360 --> 00:05:09.920 force the herring boats to carry them and pay for it. And it's nowhere 57 00:05:09.920 --> 00:05:12.959 in the statute. In fact, there are three places in the statute that 58 00:05:13.000 --> 00:05:18.000 has cost shifting to the to the industry, and it's not in the New 59 00:05:18.040 --> 00:05:26.040 England herring fishery. So but the the DC District Court judge said, oh, 60 00:05:26.160 --> 00:05:29.480 yes, it's clear, and she's the only that's the only one. 61 00:05:29.560 --> 00:05:32.160 Because it went up to the d C Circuit and they said, no, 62 00:05:32.560 --> 00:05:39.480 this is ambiguous, and they went through all the Step one processes and they 63 00:05:39.560 --> 00:05:42.800 used all the candidates and that is ambiguous. So we're going to use Chevron, 64 00:05:42.839 --> 00:05:47.839 and under Chevron, surprise government wins. So that is the posture went 65 00:05:47.920 --> 00:05:54.879 up out of d C to the Supreme Court with the question should the Supreme 66 00:05:54.959 --> 00:06:00.680 Court overrule or modify Chevron. There was a question that does Chevron apply if 67 00:06:00.720 --> 00:06:08.040 the statute is silent? But the and the Supreme Court took that question in 68 00:06:08.079 --> 00:06:14.879 the first circuit where we were relentless. The District Court also found it ambiguous. 69 00:06:15.319 --> 00:06:18.759 Chief Judge Smith went through it in an opinion with a lot of phish 70 00:06:18.800 --> 00:06:26.000 puns, and he went through the statute. He found it ambiguous. He 71 00:06:26.040 --> 00:06:30.519 did almost the exact same analysis as the DC Circuit did. He didn't have 72 00:06:30.600 --> 00:06:33.759 he didn't have the benefit of that that hadn't happened yet. But it goes 73 00:06:33.839 --> 00:06:38.959 up to the first circuit. In the first circuit said well, under step 74 00:06:39.000 --> 00:06:43.279 one or step two, they didn't do any kind of They didn't do that. 75 00:06:43.639 --> 00:06:46.560 I don't think they did the analysis that the Supreme Court keeps saying in 76 00:06:46.959 --> 00:06:50.720 both these arguments, you're about to hear about that that you're supposed to do. 77 00:06:50.800 --> 00:06:53.759 But they said, yeah, go ahead and do that in the first 78 00:06:53.800 --> 00:07:00.439 circuit. So we petitioned for CIRT and because of how brilliant for CCHERA was, 79 00:07:01.199 --> 00:07:04.759 they took our case as well. And I'm sure the fact that Justice 80 00:07:04.839 --> 00:07:11.360 Jackson was recused and low forer Bright was not as important as how brilliant that 81 00:07:12.439 --> 00:07:16.600 petition was. But in all seriousness, they wanted the opportunity to have a 82 00:07:16.680 --> 00:07:21.879 nine member bench, so they took the case. And so it gets the 83 00:07:21.959 --> 00:07:28.879 Supreme Court two cases, should Chevron continue or should it be overruled? And 84 00:07:29.199 --> 00:07:34.439 they denied taking any question either for Loper Bright or for us on any other 85 00:07:34.519 --> 00:07:42.199 matter. We wanted relentless. I wanted the necessary and appropriate language of the 86 00:07:42.199 --> 00:07:49.120 Madison Stevenson Act to be I wanted them to say that that is not another 87 00:07:49.240 --> 00:07:53.279 license for the agencies to do whatever they want. They didn't take that. 88 00:07:53.480 --> 00:07:57.720 There are a lot of questions about that sort of thing. So that's how 89 00:07:57.720 --> 00:08:01.120 the case, that's how the case has come. Are our clients are also 90 00:08:01.240 --> 00:08:07.240 herring fishermen, but they fish on freezer boats and they fish for things like 91 00:08:07.319 --> 00:08:11.240 the two kinds of squid and butterfish, so they're not just herring fishermen, 92 00:08:13.319 --> 00:08:18.839 and this regulation hit them, I think worse than anyone because because they're freezer 93 00:08:18.879 --> 00:08:24.000 boats they take out, they stay out at sea from ten to fourteen days 94 00:08:24.079 --> 00:08:26.839 rather than three or four days, so they've got these guys on their boat 95 00:08:26.879 --> 00:08:30.759 for a longer period of time, and sometimes they're not even fishing for herring, 96 00:08:30.800 --> 00:08:33.840 but they've got their herring monitor board. So they're paying for this very 97 00:08:33.840 --> 00:08:41.519 expensive guy seven hundred and ten dollars a day out of revenues from some other 98 00:08:41.600 --> 00:08:46.679 fish that that isn't monitored. So it was extremely burdensome for the client, 99 00:08:46.879 --> 00:08:54.679 and we were hit very bad by this regulation that is nowhere in the statue 100 00:08:54.840 --> 00:08:58.000 because the last thing I want to say about how it got here was is 101 00:08:58.039 --> 00:09:01.679 that when this was amended in nineteen nine, as far as I can tell, 102 00:09:01.279 --> 00:09:09.559 nobody opposed putting observers on the boats. There is no certainly my clients 103 00:09:09.559 --> 00:09:13.440 didn't. I haven't seen any of the local bride clients. Nobody said we 104 00:09:13.440 --> 00:09:16.960 were not going to take observers. That's not what this is about. Twenty 105 00:09:18.039 --> 00:09:22.960 years later, the agency makes up this at sea monitors being paid by the 106 00:09:24.000 --> 00:09:28.960 fishermen, and it's nowhere in the statute. So the problem is you'd have 107 00:09:28.039 --> 00:09:35.440 no chance to oppose this law. So we get to the Supreme Court and 108 00:09:35.720 --> 00:09:41.039 it was a very very hot bench. I put in my notes. Thomas 109 00:09:41.080 --> 00:09:46.440 asked the first question, which is his first question, is we had a 110 00:09:46.440 --> 00:09:50.600 constitutional argument. I think that we focused on neither party disagreed with the other 111 00:09:50.759 --> 00:09:54.279 party on any matter of law, but we were focused more on the Constitution 112 00:09:56.440 --> 00:10:01.440 rather than the APA, because there's lots of reason Chevron's back and our reasons 113 00:10:01.480 --> 00:10:07.600 were Article three judges say what the law is, not agencies, and also 114 00:10:07.679 --> 00:10:13.960 do process in that you're in litigation with a party that's telling the judge what 115 00:10:13.000 --> 00:10:18.919 the law is, and and that is the unfairness of that should be manifest 116 00:10:20.159 --> 00:10:28.240 in our view. And so Thomas's first question was is any difference allowed under 117 00:10:28.360 --> 00:10:33.440 Article three? I think that's what he was getting at, and so he 118 00:10:33.799 --> 00:10:37.559 was looking ahead and a lot of these questions I'm gonna I'm gonna show are 119 00:10:37.679 --> 00:10:45.320 good just because everyone's asking what happens when we overrule Chevron? What comes next 120 00:10:45.360 --> 00:10:48.039 down the line? And I thought, as I listened to all those questions 121 00:10:48.440 --> 00:10:52.919 that even people who weren't given the game away were kind of given the game 122 00:10:52.960 --> 00:10:58.159 away. I'm heartened by the fact that they wanted to know what happens in 123 00:10:58.200 --> 00:11:03.440 the absence of Chevron and all all the justices asked those questions. I'm pretty 124 00:11:03.440 --> 00:11:07.039 sure, but certainly Thomas did. Do we have to get rid of all 125 00:11:07.240 --> 00:11:13.879 all deference? And then I'll just go through the justices because they asked the 126 00:11:13.919 --> 00:11:20.600 same type of questions of Roman and our relentless as they did for Paul and 127 00:11:20.639 --> 00:11:24.039 Low for Bright but the other. Then Kagan came out of the gate. 128 00:11:24.200 --> 00:11:28.559 And I put in my notes, Well, she came to fight because she 129 00:11:28.559 --> 00:11:37.039 she loves expertise, she loves the agencies having the ability to move this way 130 00:11:37.080 --> 00:11:41.399 and that, and she does not believe that some some legal questions are binary. 131 00:11:41.799 --> 00:11:48.360 And so she she peppered Roman with those questions. She later did Paul 132 00:11:48.440 --> 00:11:52.600 as well, And I think they showed that there really is a difference between 133 00:11:52.639 --> 00:12:00.440 law and policy and and but but Kagan was unshakable on that. Then you 134 00:12:00.480 --> 00:12:05.399 will then Gordon as she's doing this. Gorsts jumped in and he played his 135 00:12:05.559 --> 00:12:11.679 hand open. He does not like Chevron. It's known since he was on 136 00:12:11.720 --> 00:12:13.960 the Circuit Courd he didn't like it. He's put it in there and yesterday 137 00:12:15.120 --> 00:12:20.360 was no exception. He explained. I think in the most poignant terms, 138 00:12:20.440 --> 00:12:24.240 and I think you'll be seeing a lot of this because it's true and because 139 00:12:24.279 --> 00:12:28.720 it's something that doesn't get said a lot, he said, I and other 140 00:12:28.799 --> 00:12:35.039 appellate judges see that Chevron is for agency capture. If an industry has captured 141 00:12:35.039 --> 00:12:41.000 the agency, they like it. But in social security disability that disabled don't 142 00:12:41.000 --> 00:12:46.320 capture agencies. Veterans don't capture the agencies when they're trying to get the ones 143 00:12:46.360 --> 00:12:52.559 trying to get benefits, and immigrants certainly can't capture agencies. And all these 144 00:12:52.600 --> 00:13:01.639 people are routinely hurt by agency deferring to agencies or a position that is not 145 00:13:01.799 --> 00:13:03.720 the best reading of the law. And Gorsuch is very clear on it. 146 00:13:03.759 --> 00:13:11.600 And I would add Fickerman or another one who don't control agencies. Judge Jackson 147 00:13:11.279 --> 00:13:16.919 very worried about judges making policy decisions. She thinks that there is a democratic 148 00:13:18.080 --> 00:13:22.919 need to have an elected branch make these decisions, and she is fearful that 149 00:13:22.759 --> 00:13:28.279 elective branches won't be making policy if you get rid of Chevron. We respond 150 00:13:28.399 --> 00:13:31.399 to that, We certainly don't believe that's the case, but that's what happened. 151 00:13:33.559 --> 00:13:39.000 Barrett and Alito. I'm going to use their questions together because they're kind 152 00:13:39.039 --> 00:13:45.120 of interesting. Barrett, is, tell me what happens. What's the difference 153 00:13:45.120 --> 00:13:50.320 between law and policy? Was her first question, sort of riffing off Jackson. 154 00:13:50.480 --> 00:13:54.320 She wants to know where the lines are, and she wants to know, 155 00:13:54.360 --> 00:13:56.679 from her other questions, what's going to happen when Chevron's gone? And 156 00:13:56.720 --> 00:14:01.320 how big a deal is this? The chief also, how big a deal 157 00:14:01.360 --> 00:14:05.840 is this? How often is it used? And both Raman and Paul just 158 00:14:05.879 --> 00:14:09.000 told the lower courts use it all the time, and they don't use it 159 00:14:09.039 --> 00:14:13.320 the way you people are saying about oh all is rigor, And I think 160 00:14:13.360 --> 00:14:16.279 that I think the fact that the first circuit had no rigor at all is 161 00:14:16.600 --> 00:14:20.759 a good fact for the side that wants to explain to the court that Chevron 162 00:14:20.799 --> 00:14:26.440 has failed below it's failed as a doctor. And so Alido went back to, 163 00:14:26.559 --> 00:14:30.120 well, why do we have Chevron? Why was it so great, 164 00:14:30.159 --> 00:14:33.440 Why was it so important? And why if we get rid of it it 165 00:14:33.480 --> 00:14:37.519 will be okay. Now. Answer that question was, now the whole court 166 00:14:37.639 --> 00:14:43.120 is textless and originalists. You're not allowed to make up policy as you were 167 00:14:43.159 --> 00:14:46.600 in the sixties and seventies. The way I always put it is is that 168 00:14:46.919 --> 00:14:50.200 you know, judging in the sixties is seventy A lot of things came out 169 00:14:50.519 --> 00:14:54.240 bell bottoms, pet rocks that didn't stand the test at time. And I 170 00:14:54.279 --> 00:15:01.720 think that that type of judging that Chevron was meant to correct is out the 171 00:15:01.720 --> 00:15:07.039 window now. And then side of my r wanted to know about Starry decisis 172 00:15:07.480 --> 00:15:11.320 both she and Kagan were very big on what happens to all these cases? 173 00:15:11.399 --> 00:15:15.120 What happens to all the cases that have relied on Chevron? Is it all 174 00:15:15.120 --> 00:15:16.519 a jump ball? Do we all have to do it again? And the 175 00:15:16.600 --> 00:15:22.120 Chief was concerned about that too. The answer is no, there's statutory interpretations, 176 00:15:22.200 --> 00:15:28.360 and the Court is very strong that however a statute was defined by the 177 00:15:28.399 --> 00:15:31.360 Court, it's going to stick except under brand X. And I'll end with 178 00:15:31.519 --> 00:15:37.399 this aspect of it because I think I know there'll be questions and I can 179 00:15:37.440 --> 00:15:43.080 get to what all the other justices did through questions, but brand X came 180 00:15:43.159 --> 00:15:46.759 up. And if those of you may know that brand X is a ruling 181 00:15:46.799 --> 00:15:50.440 which allows the agency to make one ruling on what the law is, what 182 00:15:50.519 --> 00:15:54.440 the law requires, and then a court to say rule on it and say 183 00:15:54.440 --> 00:15:58.480 if it's right or wrong, and then the agency then can make another ruling 184 00:15:58.559 --> 00:16:02.960 and the court has to follow their ruling. They can actually change a court 185 00:16:03.000 --> 00:16:07.919 decision. And I was very close and it looked to me, you can't 186 00:16:07.919 --> 00:16:11.159 hear the justice, but it looked to me like sod of my arm turns 187 00:16:11.600 --> 00:16:15.720 to Thomas and they're having a I think it seems to me from the time 188 00:16:15.799 --> 00:16:19.639 of the questions that she was saying, here, I am defending your opinion 189 00:16:19.639 --> 00:16:23.039 because Thomas wrote it, and I think he was in, don't defend me. 190 00:16:23.080 --> 00:16:26.039 And Gorset gets in and they all start laughing. I mean it was 191 00:16:26.279 --> 00:16:32.000 it was a nice moment. But brand X got no love, not even 192 00:16:32.039 --> 00:16:40.840 from the Solicitor General. So Siter General pre Legar was her normal tremendous advocate. 193 00:16:41.200 --> 00:16:47.320 She was hitting these things hard, but even on I don't think she 194 00:16:48.039 --> 00:16:51.720 gave a full court press for brand X. There was no love for that 195 00:16:51.879 --> 00:16:56.600 case. From anybody. So where does it stand. It stands where we 196 00:16:56.720 --> 00:17:00.519 think that it was a very favorable day. You don't know exactly what's going 197 00:17:00.600 --> 00:17:04.480 to happen. There are concerns, but I think it's going to be a 198 00:17:04.480 --> 00:17:11.079 big case, come they or June. Thank you for the summary of the 199 00:17:11.079 --> 00:17:14.759 case in the oral arguments, John. The first question I have is whether 200 00:17:14.799 --> 00:17:19.680 a decision in favor of the fisherman potentially jeopardizes other federal regulatory programs that mandate 201 00:17:19.680 --> 00:17:23.839 the presence of on site regulators with provisions provided for them, such as federal 202 00:17:23.880 --> 00:17:30.640 meat inspection agents or air marshals. So that's this case is not about getting 203 00:17:30.720 --> 00:17:34.960 rid of observers. It's a matter of who pays for it. So nobody, 204 00:17:36.319 --> 00:17:44.200 neither the local right folks or we have ever opposed having monitors observers because 205 00:17:44.200 --> 00:17:47.559 it's a government job. The government paid for it, except even in the 206 00:17:47.559 --> 00:17:52.400 magazine Stevenson Act. It has a fee based program. In the Northern Pacific 207 00:17:52.440 --> 00:17:56.000 eye some of you may watch the most Dangerous Catch, right, it's the 208 00:17:56.000 --> 00:18:03.000 most productive and profitable of fishery in the world up there. And Congress made 209 00:18:03.039 --> 00:18:07.880 the decision that those observers would be paid by a fee based mechanism. They 210 00:18:07.880 --> 00:18:11.400 put in a foreign fishermen because they're going to be gone, and Kegan pointed 211 00:18:11.440 --> 00:18:15.119 this out. She says, they're going to leave, so those observers are 212 00:18:15.119 --> 00:18:18.279 put on those boats, and they have to contract those observers or have fees 213 00:18:18.279 --> 00:18:21.559 shifting. None of those observers are going to go. They're all going to 214 00:18:21.559 --> 00:18:23.039 be on the ships. They're all going to be looking at fish. There's 215 00:18:23.079 --> 00:18:27.440 another there's a thing called a lap where all the fishermen split the catch in 216 00:18:27.480 --> 00:18:33.319 a certain area. Those are also a fee based mechanism, and as Paul 217 00:18:33.359 --> 00:18:37.359 Clement pointed out, all of those have caps on how much they can charge 218 00:18:37.359 --> 00:18:41.759 the fishermen because Congress was really looking at it. But all of them can 219 00:18:41.799 --> 00:18:47.880 go in same with air marshals if the statute says they're paid by the industry. 220 00:18:48.519 --> 00:18:52.119 That doesn't have a Chevron problem. The problem is when the agencies are 221 00:18:52.119 --> 00:18:57.039 trying to get away from congressional power, because in these cases they're getting away 222 00:18:57.079 --> 00:19:03.400 from the appropriation's power, getting away from the lawmaking powder. They are trying 223 00:19:03.400 --> 00:19:07.640 to escape congressional control, and that's not what we want. So all of 224 00:19:07.680 --> 00:19:15.160 the regimes that have inspectors paid for by the government will still exist. And 225 00:19:15.759 --> 00:19:19.440 these the observers, like in the Magaiza Stephen Act in Alaska and Alaska Waters, 226 00:19:19.720 --> 00:19:23.240 they'll still have it as well. Congress said, So this doesn't put 227 00:19:23.240 --> 00:19:30.640 any of those regulations in danger. The next question I have is multi part. 228 00:19:32.200 --> 00:19:34.519 What would be the benefit of getting rid of Chevron? Would new cases 229 00:19:34.519 --> 00:19:41.440 be available to push back against agency decisions? And what are major industry areas 230 00:19:41.440 --> 00:19:48.160 where you expect new litigation to follow if Chevron is overturned. So much of 231 00:19:48.160 --> 00:19:53.000 what's good about getting rid of Chevron will never see And here's what it is. 232 00:19:53.519 --> 00:20:00.640 The agencies, the bureaucrats themselves will not do so something like this. 233 00:20:00.759 --> 00:20:03.720 They won't go, Hey, how do we get around all the powers of 234 00:20:03.720 --> 00:20:07.440 Congress and what the words say, and how do we write a law that 235 00:20:07.480 --> 00:20:11.920 we want that we can't get through Congress and then just show a court that 236 00:20:11.920 --> 00:20:15.519 it's a reasonable interpretation of those words. You're going to see a lot less 237 00:20:18.279 --> 00:20:23.279 freelancing by the agencies, by the bureaucrats because they know that they will have 238 00:20:23.359 --> 00:20:27.880 to make this argument to the court. The statute requires or allows this, 239 00:20:29.720 --> 00:20:37.279 not the statute doesn't say I can't do this. Right. So those incentives 240 00:20:37.359 --> 00:20:44.240 are going to mean that a lot of bad and oppressive administrative agency regulations are 241 00:20:44.279 --> 00:20:47.160 not going to be tried, and we won't see that. We won't know, 242 00:20:48.000 --> 00:20:51.079 but I think it's a good thing that will happen. In litigation. 243 00:20:51.279 --> 00:20:55.799 Once again, the question is will not be the government will not be saying 244 00:20:55.799 --> 00:20:59.119 to you when you're in a suit with them, oh, we found ambiguity, 245 00:20:59.240 --> 00:21:03.160 and now our view has to be the law. Because we've found some 246 00:21:03.279 --> 00:21:07.039 ambiguity and we've convinced the court there's ambiguity. The question for judge should not 247 00:21:07.119 --> 00:21:11.799 be is this ambiguous? It should be what does this law say? And 248 00:21:11.839 --> 00:21:17.240 so they'll go back to that. So I have stressed very strongly in my 249 00:21:17.359 --> 00:21:23.119 writings and my statements on this that Chevron makes every actor in our tripart system 250 00:21:23.519 --> 00:21:27.720 act badly. It makes Congress not write clear laws because they figure, oh, 251 00:21:27.759 --> 00:21:32.039 there's an ambiguous If my guy's in the White House, then I can 252 00:21:32.079 --> 00:21:34.799 get a law I could never get passed just by putting ambiguity and making an 253 00:21:34.839 --> 00:21:37.400 agency do it. Or if it's something I don't like, I can say, 254 00:21:37.440 --> 00:21:42.480 hey, I didn't write that. So it gets rid of congressional responsibility. 255 00:21:42.640 --> 00:21:48.039 It makes the agency and an executive think they can do everything that they've 256 00:21:48.039 --> 00:21:53.799 got congressional and executive power, and that they can't be stopped by the citizens 257 00:21:53.799 --> 00:21:57.640 who are affected. And it makes judges lazy, so they don't do everything 258 00:21:57.680 --> 00:22:00.640 I have to do to determine what the law says. So what I think 259 00:22:00.680 --> 00:22:07.359 you'll get is better actions by every part of our tripart government if we get 260 00:22:07.400 --> 00:22:12.640 rid of Chevron. The next question concerns Chevron, and sorry deciss Does Chevron 261 00:22:14.039 --> 00:22:18.079 itself receive story decisis respect? Why or why not? That's a great question. 262 00:22:21.000 --> 00:22:29.240 I believe that Chevron does not deserve story decisives effect, certainly not strong. 263 00:22:29.319 --> 00:22:34.599 Story decisis strong. Story decisis is its strongest in the statutory context. 264 00:22:36.400 --> 00:22:40.640 If the Supreme Court has told you what a statute means, very unlikely to 265 00:22:40.960 --> 00:22:45.559 turn it in case I love and the reason I really think that all the 266 00:22:45.720 --> 00:22:51.400 Chevron based statutory interpretations are not going to be overturned is an international baseball which 267 00:22:51.440 --> 00:22:55.240 is case from the twenties where the Supreme Court, even in the twenties with 268 00:22:55.319 --> 00:23:02.640 Babe Ruth running around, they determined that base ball was a local activity and 269 00:23:02.720 --> 00:23:07.799 it wasn't subject to the antitrust laws, and nobody thinks that's right. Baseball 270 00:23:07.880 --> 00:23:11.799 is a big business. They're all over the plot. Nobody thinks it right. 271 00:23:11.079 --> 00:23:15.599 But it went back fifty years later to the Supreme Court and Justice Stevens, 272 00:23:15.599 --> 00:23:21.400 who wrote Chevron wrote this whole pan to baseball and how it's emerged under 273 00:23:21.440 --> 00:23:23.519 this thing, and they didn't overturn it. Then it's never been overturned. 274 00:23:23.839 --> 00:23:30.240 They love statutory story decisives. This isn't that constitutional law. When they've made 275 00:23:30.240 --> 00:23:33.920 a real bad constitutional error, this court feels that they can overturn it. 276 00:23:33.960 --> 00:23:41.160 And there's strong decisive people like Justice Kagan, and there's weaker like Justice Thomas, 277 00:23:41.400 --> 00:23:45.599 but they all think it has some effect. Here. This is neither 278 00:23:45.720 --> 00:23:51.160 a constitutional ruling, nor is it a statutory ruling. It's how the court 279 00:23:51.279 --> 00:23:55.839 interprets things, how they actually go about doing the law, and that is 280 00:23:55.920 --> 00:24:02.200 totally in their wheelhouse. And so I think that they've changed how they look 281 00:24:02.240 --> 00:24:07.240 at things anti trust law. Paul Clement brought up the fact that you don't 282 00:24:07.240 --> 00:24:12.720 have implied causes of action anymore. They've done all this stuff without even mentioning 283 00:24:12.759 --> 00:24:18.960 story decisis. And I think Chevron's in that bucket. The next question I 284 00:24:18.000 --> 00:24:22.559 have is why won't people who lost previously under Chevron come back to the court 285 00:24:22.640 --> 00:24:29.799 if they are still experiencing harms. So they lost, there was a regulation 286 00:24:29.920 --> 00:24:32.480 put in, it got appeled under Chevron. Why won't they get it? 287 00:24:32.519 --> 00:24:34.839 Well, I have a number of reasons for that. First, I believe 288 00:24:34.920 --> 00:24:41.880 those will be starry decisives. The ruling of the court on that regulation, 289 00:24:41.039 --> 00:24:45.240 whether it applies to that, whether the statute allows that, is going to 290 00:24:45.240 --> 00:24:49.359 be a story decisives. So there's going to be an impediment there. The 291 00:24:49.400 --> 00:24:52.359 other one is, look, we brought a case, a cause of action 292 00:24:52.559 --> 00:24:57.839 called the Gafel case about this exact same issue in the mackerel fishery and under 293 00:24:57.880 --> 00:25:03.880 the Maxison Stevenson Act, if you don't challenge a regulation thirty days after it's 294 00:25:03.880 --> 00:25:08.359 promulgated, the statual limitations ran out. First Circuit told us statue limitations ran 295 00:25:08.440 --> 00:25:12.839 out. Well, no fisherman was bothered by this law because the agencies kept 296 00:25:12.839 --> 00:25:15.559 delaying it. They put it, they issued it, and then they said, 297 00:25:15.559 --> 00:25:18.160 oh, it's not going to apply. It's not going to go by 298 00:25:18.440 --> 00:25:22.599 until the statual limitations was gone many many years. So a lot of it. 299 00:25:22.640 --> 00:25:27.799 There'll be a lot of statual limitations, and there will be new regulations 300 00:25:27.920 --> 00:25:33.480 that'll come out, and those will then be adjudicated without Chevron. So I 301 00:25:33.519 --> 00:25:37.400 think that there might be a couple of cases where they try to overturn something, 302 00:25:37.640 --> 00:25:44.200 but I think they'll be swiftly disabused of that. If the Court chooses 303 00:25:44.240 --> 00:25:48.640 to limit Chevron instead of fully overturning it, what would the limiting principle be? 304 00:25:49.440 --> 00:25:56.119 WHOA Let me think about that. So you know, from the last 305 00:25:56.200 --> 00:26:04.240 question, General's preligar was was arguing chaos to the court as you're saying, 306 00:26:04.319 --> 00:26:07.440 it's going to be chaos, and I don't think it will be. But 307 00:26:08.000 --> 00:26:12.119 now you've brought into question is if they don't get rid of Chevron. There 308 00:26:12.160 --> 00:26:18.519 was a lot of talk yesterday of kaiserizing Chevron, and the Kaiser case kept 309 00:26:18.799 --> 00:26:23.319 our difference, which is the difference the Court owes an agency about what its 310 00:26:23.319 --> 00:26:33.079 own regulations mean, and they Kaiser has one thing that comes to mind, 311 00:26:34.240 --> 00:26:38.720 and our difference is one thing that comes to mind that Chevron doesn't have, 312 00:26:40.200 --> 00:26:44.839 and which sort of dovetails into Keg and certainly side of my rs view, 313 00:26:45.279 --> 00:26:51.319 and that's this you have to show agency expertise was involved. They extraducized it, 314 00:26:51.359 --> 00:26:56.240 and you got agency expertise. They could limit Chevron to only times when 315 00:26:56.240 --> 00:26:59.960 the agency has expertise. In this case, you know, the agency has 316 00:27:00.160 --> 00:27:03.000 no expertise. Who pays is a congressional question. That's what they do. 317 00:27:03.240 --> 00:27:07.160 That's what they argue about up there all. You know. Dirkson used to 318 00:27:07.200 --> 00:27:10.839 say, don't tax you, don't tax me, tax that fellow behind the 319 00:27:10.880 --> 00:27:14.119 tree. That the fact is, that's what they're arguing all the time. 320 00:27:14.200 --> 00:27:18.000 Who pays? That's not something an agency has special knowledge of. They could 321 00:27:18.039 --> 00:27:23.160 do that. I think that would be not useful because then we'd be going, 322 00:27:23.200 --> 00:27:27.079 oh, is this expertise? That not expertise. I also think that 323 00:27:27.119 --> 00:27:32.400 the silence issue sort of dropped out. No one really asked about it. 324 00:27:32.519 --> 00:27:38.119 Both both advocates said that's the question they took. No one wanted to do 325 00:27:38.200 --> 00:27:45.440 that. So I'm hoping against kaiserzation, but I think many of the things 326 00:27:45.480 --> 00:27:48.240 they'd have to do. They have to do this line drawing, and the 327 00:27:48.359 --> 00:27:52.720 question of what's law and what's policy was big. It would be a return 328 00:27:52.799 --> 00:27:57.640 to that. For our last question today, John, will the court overturn 329 00:27:57.720 --> 00:28:04.960 Chever on six to three. We'd love six three. But what they're going 330 00:28:06.039 --> 00:28:11.240 to say about Chevron right now, I do think that they're poised to get 331 00:28:11.319 --> 00:28:18.200 rid of the doctrine or vastly you know, change it. But both Barrett 332 00:28:18.240 --> 00:28:23.960 and the Chief keep their cards extremely close to the vest, so you're not 333 00:28:25.000 --> 00:28:29.480 even sure they're playing poker. So I don't I you know, I can't 334 00:28:29.519 --> 00:28:34.039 predict those two. I think I'm very sure Justice Kagan likes Chevron the way 335 00:28:34.039 --> 00:28:37.480 it is. Justice Soto my R likes it the way it is. Justice 336 00:28:37.519 --> 00:28:44.319 Gorsicic is like Chevron. Delenda sked. And then I can't tell you exactly 337 00:28:44.400 --> 00:28:48.599 where the rest of them exactly are because Alito asked a lot of questions about 338 00:28:48.720 --> 00:28:53.240 why we had Chevron, showing that there were benefits to it. He didn't. 339 00:28:53.279 --> 00:29:00.400 He didn't He wasn't as hostile as Gorsic to the why Chevron us here. 340 00:29:02.000 --> 00:29:04.799 Thank you for listening to this episode of SCO Discast. 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