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<v Speaker 1>Welcome to scot Discast, a project of the Federalist Society

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<v Speaker 1>for Law and Public Policy Studies. Our contributors join us

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<v Speaker 1>from around the country to bring you expert commentary on

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<v Speaker 1>US Supreme Court cases as they are argued and the

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<v Speaker 1>decisions are issued. The Federalist Society takes no position on

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<v Speaker 1>particular legal or public policy issues. All expressions are those

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<v Speaker 1>of the speaker. Hello, and welcome to scot Discast. I'm

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<v Speaker 1>your host, Kyle hammernis On behalf of the Faculty division

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<v Speaker 1>of the Federalist Society. Today we have a moderated discussion

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<v Speaker 1>on Relentless Incorporated versus Department of Commerce and Loperbright Enterprises

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<v Speaker 1>versus Rimando, in which the Supreme Court issued a sixty

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<v Speaker 1>three and sixty to two decision, respectively, on June twenty eighth,

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<v Speaker 1>twenty twenty four. It is my honor to introduce our

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<v Speaker 1>moderator and our guests today. Our moderator is Professor Kristin Hickman.

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<v Speaker 1>Kristen is a distinguished mcnight University Professor and Harlan Albert

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<v Speaker 1>Rogers Professor in Law at the University of Minnesota Law School.

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<v Speaker 1>Our first guest is Professor Ronald M. Levin Ronald is

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<v Speaker 1>the William R. Orthwine Distinguished Professor of Law at the

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<v Speaker 1>Washington University in Saint Louis School of Law. Our second

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<v Speaker 1>guest is John J. Veccioni. John is Senior Litigation Council

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<v Speaker 1>at the New Civil Liberties Alliance. He's the council record

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<v Speaker 1>for Relentless, and with that, I would like to turn

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<v Speaker 1>things over to Christen to give us the background of

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<v Speaker 1>the case.

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<v Speaker 2>The Lower Bright and Relentless cases which we're here to

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<v Speaker 2>talk about today involved a challenge to a National Marine

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<v Speaker 2>Fishery Service interpretation of the Magnuson Stevens Fishery Conservation and

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<v Speaker 2>Management Act. That statute establishes a system for developing fishery

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<v Speaker 2>management plans that includes requiring government observers to be carried

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<v Speaker 2>on board domestic fishing vessels. To ensure compliance with the plans,

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<v Speaker 2>the agency adopted a rule requiring the fishermen themselves to

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<v Speaker 2>pay for the observers if federal funding was.

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<v Speaker 3>Not available to cover that cost.

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<v Speaker 2>Unsurprisingly, phishing boat owners were not happy with that rule,

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<v Speaker 2>and they challenged it in court, both the DC Circuit

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<v Speaker 2>in Loberbright and the First Circuit and Relentless upheld the

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<v Speaker 2>agency's rule as a reasonable interpretation of an ambiguous statute

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<v Speaker 2>under Chevron's step two. The Supreme Court took the case

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<v Speaker 2>expressly for the purpose of considering whether to overturn or

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<v Speaker 2>clarify the deferential Chevrons standard of review. I think probably

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<v Speaker 2>everyone is familiar with the Chevrons standard, which called on

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<v Speaker 2>courts first to determine whether the meaning.

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<v Speaker 3>Of the statute issue was clear. But if that statute

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<v Speaker 3>wasn't clear.

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<v Speaker 2>If it was ambiguous, then the Chevron's step two called

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<v Speaker 2>on courts to defer to reasonable or permissible interpretations by

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<v Speaker 2>the agency of the statue.

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<v Speaker 3>Justice Jackson was.

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<v Speaker 2>Recused from Lopobright but not from Relentless, and in his

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<v Speaker 2>six ' to three decision, the Supreme Court did in

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<v Speaker 2>fact overrule Chevron by name, holding that deference that the

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<v Speaker 2>difference that Chevron requires cannot be squared with the Administrative

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<v Speaker 2>Procedure Act because Chevron defies the APA's command that the

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<v Speaker 2>Court is to decide all relevant questions of law and

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<v Speaker 2>interpret statutory provisions. The Court did not resolve the challenge

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<v Speaker 2>to the Fishery Service regulation in question.

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<v Speaker 3>Instead, the Court remanded.

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<v Speaker 2>The cases back to the circuits for reconsideration. Justice Thomas

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<v Speaker 2>wrote a separate concurring opinion in which he reiterated his

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<v Speaker 2>view that Chevron also violates violates separation of powers principles.

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<v Speaker 2>Justice Gorsuch wrote a concurring opinion to discuss his views

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<v Speaker 2>regarding starry decisives and common law understanding of.

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<v Speaker 3>The judicial rule.

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<v Speaker 2>Justice Kagan wrote the dissenting opinion, joined by Justice Sotomayor,

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<v Speaker 2>and with respect to the Relentless case, Justice Jackson. So

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<v Speaker 2>there's a lot to talk about in these opinions. I

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<v Speaker 2>have my own thoughts that I can and will share

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<v Speaker 2>as we go along. But first I want to turn

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<v Speaker 2>the microphone over to Ron and then to John to

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<v Speaker 2>share their perspectives regarding these decisions. So Ron, why don't

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<v Speaker 2>you start us off?

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<v Speaker 3>Please?

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<v Speaker 4>All right? Thank you, Kristin. I'm grateful to the Federal

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<v Speaker 4>Society for inviting me to be part of this well.

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<v Speaker 4>The advent of Chevron in ninety eighty four was the

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<v Speaker 4>combination of the long line of precedents in which the

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<v Speaker 4>Court articulated a strong expectation the Court should give great

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<v Speaker 4>way to administrative interpretations or language similar to that, and

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<v Speaker 4>that expectation was just one factor in the interpretive equation,

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<v Speaker 4>but it was an important element of the administrative common law.

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<v Speaker 4>In the modern era, courts are more formalists. They don't

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<v Speaker 4>like over administrative common law. So in Chevron that principle

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<v Speaker 4>was reformulated as a presumption about what Congress would probably

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<v Speaker 4>intend for courts to do when they encounter an ambiguous statute.

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<v Speaker 4>I don't think that was a drastic departure from prior law,

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<v Speaker 4>but just a reformulation. So what is this long standing law? Well,

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<v Speaker 4>it's always been agreed that if a court finds a

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<v Speaker 4>clear message in a statute, it should follow it. Chevron

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<v Speaker 4>reaffirmed that point. But the important question has always been

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<v Speaker 4>if Congress has not taken a clear stand it self,

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<v Speaker 4>who should fill in the gap. Should it be the

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<v Speaker 4>administrating agency or should it be the reviewing court of

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<v Speaker 4>the dissent in Loberbright argued there were several good reasons

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<v Speaker 4>to assume it. In this situation, Congress would generally want

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<v Speaker 4>the agency to make that call. For one thing, an

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<v Speaker 4>agency tends to be experienced with the subject matter of

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<v Speaker 4>the appeal, which can be quite specialized or complex, and

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<v Speaker 4>generalist judges usually don't have the same level of familiarity

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<v Speaker 4>with the agency's challenges. And for another thing, an agency

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<v Speaker 4>has a congressionally assigned responsibility to implement the program to

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<v Speaker 4>achieve its goals, it needs flexibility to deal with emerging

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<v Speaker 4>challenges that Congress may not have anticipated, and it's start

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<v Speaker 4>to assume that Congress would want it to have that flexibility.

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<v Speaker 4>And further more, as Chevron brought into the debate, agencies

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<v Speaker 4>are politically accountable for their interpretations of ambiguous statutory interpretation.

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<v Speaker 4>They answer to the President. They answered to the legislative

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<v Speaker 4>branch through oversight carryings and the budget process and so forth,

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<v Speaker 4>so indirectly they answer to the people. But unelected judges

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<v Speaker 4>have no such accountability. They can be entirely out of

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<v Speaker 4>touch with public sentiment. Now, I would argue, that's exactly

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<v Speaker 4>what's happening in these days, and that may not be

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<v Speaker 4>the kind of language that wins hearts and minds in

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<v Speaker 4>a federal society event. But even if you don't agree

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<v Speaker 4>with me about current events, the structure difference is clear. Now.

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<v Speaker 4>At the same time, Chevron was always a presumption which

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<v Speaker 4>could be rebutted, so that doctrine was refined over time

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<v Speaker 4>to allow for significant judicial controls over agency action. Now,

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<v Speaker 4>lovel Wright does not try to exclude those practical considerations

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<v Speaker 4>from judicial review entirely, but suggests that reviewing courts can

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<v Speaker 4>display and so called respect to administrative interpretations under the

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<v Speaker 4>so called Skidmore test. Well. As our moderator's excellent scholarship

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<v Speaker 4>has demonstrated, Skidmore has been applied in very different ways

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<v Speaker 4>at different times by different judges, and Roberts seems to

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<v Speaker 4>envision a very weak version of Skidmore in which a

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<v Speaker 4>court has the option of showing respect to the agency's news,

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<v Speaker 4>but there's no strong expectation that he should, as Chevron

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<v Speaker 4>would have suggested. As I read the lower right opinion,

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<v Speaker 4>if the judge says, in a given case, I don't

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<v Speaker 4>respect the agency at all, and I never have, and

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<v Speaker 4>so I won't give any way to its views, that

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<v Speaker 4>would not be reversible. There. I think that's suggested a

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<v Speaker 4>change the lower bride as rad I've given the Chevron

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<v Speaker 4>provided a stable framework on which countless decisions have been

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<v Speaker 4>predicated for four decades or so. What reasons does the

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<v Speaker 4>court give for abandoning it? The Court relies on the

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<v Speaker 4>language of the Administrative Procedure Act and I've done a

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<v Speaker 4>fair amount of scholarship on that exact issue, and I

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<v Speaker 4>consider the court's rationale. If I can use a technical term,

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<v Speaker 4>speeches have not preposterous or since this is the case

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<v Speaker 4>about fishing, it's kind of a red herring. The Act

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<v Speaker 4>provides that a viewing court shall the sign relevant questions

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<v Speaker 4>of law, but it doesn't say how to decide them.

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<v Speaker 4>The Court reads into those words a prohibition on deference,

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<v Speaker 4>but that reading was not supported by the congressional sponsors

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<v Speaker 4>of the Act, no by the courts and the immediate

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<v Speaker 4>regulars enactment. They knew very well that the Act was

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<v Speaker 4>not intended to change the law of judicial difference, so

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<v Speaker 4>they went on applying difference principles just as they had

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<v Speaker 4>been doing before the Act passed. And nor was the

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<v Speaker 4>lover Bride view shared by three generations of judges in

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<v Speaker 4>the interviewing years, including leading judges and Leena Biddle, a

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<v Speaker 4>bit to the right like Henry Friendly and William Rehnquist

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<v Speaker 4>and answermin Scalia and Ray Randolph and countless others. So

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<v Speaker 4>the data over interpretation of the court and now endorses

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<v Speaker 4>never got traction until the rise of the anti government

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<v Speaker 4>movement of about a dozen years ago, and so I

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<v Speaker 4>view the APA argument the Court makes as more of

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<v Speaker 4>an excuse than a serious justification. Another argument in the

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<v Speaker 4>lower Bread opinion is that the Chauvren doctor became too

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<v Speaker 4>complicated and loaded down with refinements. But I think Roberts

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<v Speaker 4>has the argument backwards. Those distinctions were part of a

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<v Speaker 4>very commendable, continuing effort to refine the doctrine and strike

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<v Speaker 4>a balance between the judicial state of steers. But now

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<v Speaker 4>lover Bright has thrown out that body of president, which

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<v Speaker 4>is this rate of lawyers understood fairly well, and everything

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<v Speaker 4>will be up for grams. In the coming years. We're

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<v Speaker 4>going to see endless arguments about whether to apply strong shift,

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<v Speaker 4>skid more, is weak skid more of something in between.

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<v Speaker 4>It'll be very disruptive, I think. I think the real

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<v Speaker 4>explanation for what's going on here is that it's part

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<v Speaker 4>of a campaign by the Supreme Court to challenge the

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<v Speaker 4>administrative state on a number of fronts. If you put

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<v Speaker 4>together with the past terms of decisions in Jocracy and

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<v Speaker 4>Ohio guest EPA, and the recent creation of the Major

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<v Speaker 4>Questions doctrine, lober Bright also speaks reluctance and maybe refusal

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<v Speaker 4>to share interpretive power with another branch of government. It's

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<v Speaker 4>no wonder that some people are calling this decision of paragram.

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<v Speaker 4>I might not choose that language myself, but I agree

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<v Speaker 4>that it be speaks the majorities overconfidence in its own judgment.

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<v Speaker 4>I'm pretty sure John's going to tell us in a

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<v Speaker 4>few minutes that the decision restores the separation of powers.

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<v Speaker 4>But to my mind, lover Bright will tend to undermine

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<v Speaker 4>checks and balances and so birth the separation of powers.

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<v Speaker 4>And these are radical moves that I would not call conservatives.

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<v Speaker 5>So I'll leave it with that, John, go ahead, please,

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<v Speaker 5>So I'll add to the professor's list as to judge Silverman,

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<v Speaker 5>who is more than I know, unlike.

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<v Speaker 6>Stalia, showed no sign of changing his views on Chevron

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<v Speaker 6>before he passed away last year.

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<v Speaker 3>So there was a lot. There was a lot of that.

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<v Speaker 6>And now I should I have to change my federalist

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<v Speaker 6>society bio because I'm also a counsel of record in

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<v Speaker 6>Relentless and counsel of record for the most of the

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<v Speaker 6>individual plane of su Murphy. So it's been a big

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<v Speaker 6>term and I was in I happened to guess right,

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<v Speaker 6>and I was in the courthouse on Friday morning to

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<v Speaker 6>watch it come down, and I think I did not

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<v Speaker 6>get the impression either there or upon reading the case

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<v Speaker 6>that skidmore respect is as in as perilous condition. As

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<v Speaker 6>the professor has remarked. I'm going to have to read

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<v Speaker 6>it again because that's interesting to me. But here's my views,

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<v Speaker 6>and I'll just say when I was at Cause of Action,

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<v Speaker 6>we started the local Bright case, and Cause of Action

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<v Speaker 6>decided not to do third party cases anymore. So when

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<v Speaker 6>I went to NCLA, I did relentless. So I was

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<v Speaker 6>involved in both of these from pretty much the inception,

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<v Speaker 6>and we filed up in Rhode.

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<v Speaker 3>Island with relentless. They were in DC for Low for Bright.

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<v Speaker 6>One of the things that's interesting about this, and I

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<v Speaker 6>think shows the weakness of Chevron, is if you want

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<v Speaker 6>to talk about how different courts looked at it, the

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<v Speaker 6>District Court in oprah Bright found the statute was clear

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<v Speaker 6>and the government won because this was perfectly allowed under

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<v Speaker 6>the statue without reference to Chevron.

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<v Speaker 3>The first circuit, in.

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<v Speaker 6>What I think is a classic Chevron I think, I

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<v Speaker 6>excuse me. The d C circuit, I think wrote a

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<v Speaker 6>very strong opinion on how you're supposed to do Chevron and.

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<v Speaker 3>Found only with Chevron desperance, it's not clear. There's ambiguity.

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<v Speaker 6>So the government wins. Of course, there was a strong

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<v Speaker 6>descent which probably got this taken by the Supreme Court.

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<v Speaker 6>Then in the first Circuit, Judge Smith, chief Judge of

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<v Speaker 6>Rhode Island, he did almost the exact same thing as

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<v Speaker 6>the d C Circuit did. But then it went up

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<v Speaker 6>to the First Circuit, and the first Circuit wrote what

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<v Speaker 6>I call a Mushi opinion.

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<v Speaker 3>They didn't say.

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<v Speaker 6>Whether clearly whether it was because it's clear or because

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<v Speaker 6>of ambiguity, but they invoked Chevron.

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<v Speaker 3>And they invoked the steps. So I think they invoked Chevron.

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<v Speaker 6>And I obviously am thrilled with the result, and I

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<v Speaker 6>am thrilled with the reasoning as well, because what this

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<v Speaker 6>does is there is no.

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<v Speaker 3>Expertise in the agency. You talk about a power graph.

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<v Speaker 6>Congress refused in nineteen ninety in this case, the magazine

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<v Speaker 6>Stevensonak was amended by Congress to add to make clear

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<v Speaker 6>that observers could come on fishing boats to make sure

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<v Speaker 6>you're catching the right amount of fish and the right

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<v Speaker 6>kinds and the size. All the vari's laws that the

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<v Speaker 6>magazine Stephens Snack gives the Secretary of Commerce, and it

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<v Speaker 6>is a very powerful law.

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<v Speaker 3>It says the Secretary may or, the Secretary.

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<v Speaker 6>Musk like scores of times, so he has lots of power.

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<v Speaker 6>But what he didn't like, what the agencies didn't like,

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<v Speaker 6>is Congress did not use its funding power and the

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<v Speaker 6>power of the purse in the way the agency wanted.

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<v Speaker 6>They wanted more money for observers. Congress would not give

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<v Speaker 6>them more money for observers. So what you had was

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<v Speaker 6>an agency at odds with the chief funding organization of

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<v Speaker 6>the United States, without which you should not be able

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<v Speaker 6>to spend a penny, getting in a fight with Congress

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<v Speaker 6>and saying, you know what we're going to do. We're

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<v Speaker 6>going to charge the regulated for these observers. My clients

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<v Speaker 6>and the lower bright, the clients of Cause of Action,

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<v Speaker 6>had no chance to oppose this in before Congress, before

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<v Speaker 6>their elected representatives, because when that amendment went in the

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<v Speaker 6>nineteen nineties that the observers had to go on the boat,

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<v Speaker 6>all the fishermen shrugged and said, yeah, I guess they

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<v Speaker 6>have to. There was no opposition to it, none, not

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<v Speaker 6>from any of the fishing organizations, not from any of

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<v Speaker 6>the Congressmen who are very sensitive to these fishing issues,

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<v Speaker 6>because no one thought it would cause this funding problem

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<v Speaker 6>because it's not in the statue.

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<v Speaker 3>So then what happened.

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<v Speaker 6>You come forward twenty years, the agency decides, you know

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<v Speaker 6>what we have, Chevron, We're going to say that we

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<v Speaker 6>need more observers.

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<v Speaker 3>So we're going to create these observers.

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<v Speaker 6>We're going to make the industry contract with these observers.

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<v Speaker 3>And pay them and pay them more.

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<v Speaker 6>There are sections of the Maxis Stevenson Act that allow

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<v Speaker 6>observers to be paid by industry in various means. One

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<v Speaker 6>is up in the Northern Pacific, which if you watch

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<v Speaker 6>the most dangerous catch, that's where they are. It's highly capitalized,

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<v Speaker 6>the most profitable fishery in the world, and they allowed

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<v Speaker 6>this something like this to happen, but they said, but

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<v Speaker 6>it's capped. You can't no more than three percent. And

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<v Speaker 6>the same with another section, which are laps where the

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<v Speaker 6>fishermen split all the fish in an.

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<v Speaker 3>Area, that too was capped by the Congress three percent.

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<v Speaker 6>And then the foreign fisheries because they don't pay any

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<v Speaker 6>taxes and they're using our resources. They also have an

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<v Speaker 6>at a place where they have to pay, but.

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<v Speaker 3>Each of these and I think that's cap too. So

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<v Speaker 3>when Congress was looking at it, they capped it.

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<v Speaker 6>They said what a reasonable rate was where they allowed

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<v Speaker 6>it and they didn't allow it here. But because of Chevron,

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<v Speaker 6>the agencies thought, well, we'll slip it in and there's

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<v Speaker 6>nothing the fishermen can do because they're then going to

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<v Speaker 6>have to be moving through Congress because we will give

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<v Speaker 6>them a fade of complete So I think the power

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<v Speaker 6>grab was on the administrative side, and I think it's

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<v Speaker 6>easily demonstrated because who pays is not something that Congress

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<v Speaker 6>can't figure out. Who pays is an er congressional question

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<v Speaker 6>that the administrative agencies in this case had seized. That

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<v Speaker 6>was our argument, and I think it prevailed. The other

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<v Speaker 6>thing that's going on here that I don't think Local

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<v Speaker 6>Bride gets rid of, which is interesting from a textualist

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<v Speaker 6>and an originalist position, is they want to give the

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<v Speaker 6>court seems to be very upset both at oral argument

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<v Speaker 6>in the here of if you could, if the agency

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<v Speaker 6>has a reasonable construction of a statute and what regulation

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<v Speaker 6>can do they as long as it's reasonable, they can

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<v Speaker 6>change the law.

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<v Speaker 3>One hundred and eighty degrees.

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<v Speaker 6>Every administration there seems to be very upset about this.

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<v Speaker 6>I mean, Brand X isn't explicitly overruled, but Brand X

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<v Speaker 6>is getting to them.

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<v Speaker 3>I'm pretty sure.

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<v Speaker 6>So what I think that the opinion does is when

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<v Speaker 6>we're looking for the meaning of the regula of the

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<v Speaker 6>statute and what regulations allows. If you're the administration that

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<v Speaker 6>got that law passed and you start implementing regulations at

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<v Speaker 6>that time, though, the interpretations at that time I think

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<v Speaker 6>are going to be given some kind of weight, if

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<v Speaker 6>not difference. They're going to look at it and say, well,

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<v Speaker 6>they got it passed. They kind of knew what it means.

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<v Speaker 6>We better have a good reason not to. So I

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<v Speaker 6>did not see any step away from the original interpretations

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<v Speaker 6>of statutes when they're first done. They do not like

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<v Speaker 6>this back and forth without any Congressional input and making

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<v Speaker 6>one hundred and eighty returns.

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<v Speaker 3>I think so.

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<v Speaker 6>The other aspect of this that cass Sunstein has pointed out.

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<v Speaker 3>I don't want to grab.

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<v Speaker 6>His glory because I had not thought of this when

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<v Speaker 6>I first read it, But he notes that Roberts goes

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<v Speaker 6>out of his way to say that Congress can allow

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<v Speaker 6>certain kinds of deference or respect certain on certain issues

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<v Speaker 6>of expertise. It's not clear what he means by that,

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<v Speaker 6>but I'm sure that those with Professor Levin's views are

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<v Speaker 6>going to try and run a truck through it. And

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<v Speaker 6>because it is interesting, because if they'll go back to

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<v Speaker 6>the statute and find where maybe it's there, if not

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<v Speaker 6>in the APA, we at NCLA had argued to beat

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<v Speaker 6>the band that this was unconstitutional and urged them to

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<v Speaker 6>reach the constitutional question. They did not reach the constitutional question.

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<v Speaker 6>They did this statutorily, which I think again is a

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<v Speaker 6>humility and not a power graph. They have not told

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<v Speaker 6>Congress you may not do this constitutionally, which I wish

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<v Speaker 6>they had, but they've said if you, why don't you

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<v Speaker 6>start looking at what you want these agencies to do

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<v Speaker 6>and then you put in a statute what you want

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<v Speaker 6>these agencies to do, and.

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<v Speaker 3>If you do that will take another look.

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<v Speaker 6>So I think is as Professor Eskridge sometimes talks about

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<v Speaker 6>in his legislative an now's it's something of a chat

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<v Speaker 6>between the branches on on this issue.

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<v Speaker 3>So we're very happy, you know, we go back down.

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<v Speaker 6>We'll go back down to have this looked at without

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<v Speaker 6>Chevron and it's going to be interesting.

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<v Speaker 3>It's going to be interesting what the courts do.

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<v Speaker 6>Because, as I said, the DC District Court thought the

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<v Speaker 6>law was clear, and Judge Smith thought, you know, without Chevron,

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<v Speaker 6>I think he thought, I don't want to put words

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<v Speaker 6>in his mouth. But my impression is without Chevron, you

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<v Speaker 6>don't get this. So we may be back up. I

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<v Speaker 6>do think that the anti government movement started in this

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<v Speaker 6>in this aspect in seventeen eighty nine and not a

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<v Speaker 6>few years ago. So I do think it is returned

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<v Speaker 6>to those type of principles, and I do welcome it,

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<v Speaker 6>but I don't But part of our differences may just

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<v Speaker 6>be that I don't think that they're going to be

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<v Speaker 6>They're not going to be hostile to what I'll call

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<v Speaker 6>real expertise. When the Nuclear Regulatory Committee Commission says this

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<v Speaker 6>many rockins are bad for people, I don't see the

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<v Speaker 6>courts not giving that high skidboard respect. And similarly, if

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<v Speaker 6>one is highly concerned about the fate of the Washington

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<v Speaker 6>Western Grace squirrel, I think that once again, whatever science

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<v Speaker 6>went into figuring out whether that is a distinct species

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<v Speaker 6>or not. As Justice Kagan was concerned about that type

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<v Speaker 6>of science, once again, there's going to have to be

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<v Speaker 6>something on the other side. This idea that courts with

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<v Speaker 6>all these liberal arts majors who took government and English

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<v Speaker 6>and stuff are going to be saying, no, that's not

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<v Speaker 6>how DNA works. Is I'm highly skeptical of. I think

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<v Speaker 6>it's going to be more in this vein where the

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<v Speaker 6>administrative agency wants to do something that Congress itself at

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<v Speaker 6>not done in the statue.

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<v Speaker 1>Thank you for listening to this episode of SCO Discast.

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<v Speaker 1>SCO Discast is a project of the Federalist Society, a

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<v Speaker 1>not for profit educational organization of conservative and libertarian law students,

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<v Speaker 1>law professors, and lawyers, founded upon the principles that the

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<v Speaker 1>state exists to preserve freedom, that the separation of governmental

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<v Speaker 1>power is essential to our constitution, and that it is

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<v Speaker 1>emphatically the province and duty of the judiciary to say

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<v Speaker 1>what the law is, not what it should be. Don't

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