WEBVTT 1 00:00:11.160 --> 00:00:13.759 Welcome back to Gray Matters, the podcast of the Seaboarding 2 00:00:13.800 --> 00:00:16.519 Gray Center for the Study of the Administrative State. I'm 3 00:00:16.600 --> 00:00:20.160 jace LINCTON, the Gray Center's Policy and Strategy Director. This 4 00:00:20.280 --> 00:00:23.800 episode is the final panel discussion from our October conference. 5 00:00:24.760 --> 00:00:27.600 You will hear Judge Naomi Row from the DC Circuit 6 00:00:27.839 --> 00:00:30.800 and Judge Stephen Minashi from the Second Circuit talk with 7 00:00:30.839 --> 00:00:33.920 Aaron Nielsen from the University of Texas at Austin about 8 00:00:33.920 --> 00:00:36.320 how lowber Bright has affected the way they approach their 9 00:00:36.399 --> 00:00:37.520 jobs as judges. 10 00:00:38.039 --> 00:00:41.200 Enjoy Before we jump in and I introduced the moderator, 11 00:00:41.479 --> 00:00:43.840 I just want to say just a brief word about 12 00:00:43.880 --> 00:00:45.159 one of our other speakers. 13 00:00:44.759 --> 00:00:47.840 On this panel. It happens that this year. 14 00:00:47.840 --> 00:00:50.960 Is the tenth anniversary of the founding of the Seaboarding 15 00:00:51.000 --> 00:00:54.000 Gray Center. It wasn't originally called the Seaboarding Gray Center. 16 00:00:54.119 --> 00:00:57.520 It was called just the Center for the Study of 17 00:00:57.560 --> 00:01:01.880 the Administrative State. Rolls off the tone it was found 18 00:01:02.640 --> 00:01:06.439 I always tell students when I'm introduced. Sometimes I'm introduced 19 00:01:06.439 --> 00:01:09.120 as running the Center for the Administrative State. I say, no, 20 00:01:09.200 --> 00:01:12.359 that's actually Yale. But it was founded ten years ago 21 00:01:12.400 --> 00:01:16.120 by Professor Naomi Row. At Scalia Law School now Judge 22 00:01:16.159 --> 00:01:19.400 Naomi Row. She led the Center for its first several 23 00:01:19.480 --> 00:01:23.200 years before being called into public service, first at AIRA 24 00:01:23.319 --> 00:01:26.359 and the bench, and when she went into government, she said, Adam, 25 00:01:26.719 --> 00:01:29.159 could you possibly run the Grace Center for a year 26 00:01:29.239 --> 00:01:32.200 until I come back a year or two. I'm now 27 00:01:32.680 --> 00:01:37.599 eight years into my one year side job, but I'm 28 00:01:37.719 --> 00:01:38.799 enormously grateful for that. 29 00:01:39.040 --> 00:01:41.280 She grades me every year I get a report card. 30 00:01:41.879 --> 00:01:44.040 But in all seriousness, I do want to say, since 31 00:01:44.319 --> 00:01:48.239 she's here and it's the tenth anniversary, everything we do now, 32 00:01:48.519 --> 00:01:52.280 even ten years later, is basically just an outgrowth of 33 00:01:52.280 --> 00:01:55.599 what she started ten years ago, whether it's the conferences, 34 00:01:56.560 --> 00:01:59.840 the research round tables. If she were to come back tomorrow, 35 00:02:00.000 --> 00:02:02.799 and you're welcome anytime, if she were to come back tomorrow, 36 00:02:03.159 --> 00:02:05.840 it would all look very familiar to her. We're very 37 00:02:05.840 --> 00:02:08.280 grateful to get to do what we do based on 38 00:02:08.520 --> 00:02:10.680 the foundation that she laid for it, and the fact 39 00:02:10.719 --> 00:02:13.120 that she gets to be that we get to invite 40 00:02:13.120 --> 00:02:16.080 her here today as a speaker is an extra treat 41 00:02:16.919 --> 00:02:20.000 I also I'll just point out with Judgemanashy, we have 42 00:02:21.000 --> 00:02:24.800 a reunion of the Scalia Law faculty Alumni Society. I 43 00:02:24.840 --> 00:02:28.120 see Judge Mnashi himself was the Scalia law professor and 44 00:02:28.159 --> 00:02:31.919 an early supporter of the Gray Center's work. I've already 45 00:02:31.919 --> 00:02:35.240 introduced Professor Nielson once before, but for those who missed 46 00:02:35.639 --> 00:02:37.919 the Panel of Federal Reserve, I'll just say very briefly, 47 00:02:38.319 --> 00:02:40.479 he is a professor of law at U T. Austin 48 00:02:40.680 --> 00:02:44.319 and a senior fellow at the Civitas Institute. He just 49 00:02:44.400 --> 00:02:49.319 returned to academia from service in the Solicitor General's Office 50 00:02:49.960 --> 00:02:52.319 in Texas. He was the Solicitor General for the state 51 00:02:52.360 --> 00:02:55.719 of Texas, and if you heard his brief but notable 52 00:02:56.000 --> 00:02:59.919 criticisms of California in the Federal Reserve panel, you'll know 53 00:03:00.439 --> 00:03:02.319 he still is very much a Texan. 54 00:03:03.639 --> 00:03:05.400 But we are grateful that Aaron joined. 55 00:03:05.240 --> 00:03:07.439 Us not once but twice today, and now I'll turn 56 00:03:07.479 --> 00:03:08.000 it over to him. 57 00:03:08.039 --> 00:03:08.360 Thanks sir. 58 00:03:08.639 --> 00:03:10.639 All right, that's probably the first time I've actually ever 59 00:03:10.680 --> 00:03:11.400 been called the Texan. 60 00:03:11.479 --> 00:03:12.080 I will take that. 61 00:03:12.599 --> 00:03:15.639 I spent ten years as a professor at b YU, 62 00:03:16.560 --> 00:03:19.520 and suddenly, out of the blue, I became Solicitor General 63 00:03:19.560 --> 00:03:21.680 of Texas, and it took a while for me to 64 00:03:21.680 --> 00:03:24.960 feel comfortable walking into court saying I'm here on behalf 65 00:03:24.960 --> 00:03:27.319 of the state of Texas. I never got the cowboy 66 00:03:27.319 --> 00:03:29.919 boots that head Cruise used to wear to court, but 67 00:03:30.319 --> 00:03:32.319 you know, I'm honored to be here with two of 68 00:03:32.360 --> 00:03:37.039 my favorite people, Judges Rao and Minashi. I want to start. 69 00:03:37.599 --> 00:03:39.759 We all know who you are, but just quick who 70 00:03:39.800 --> 00:03:43.520 you are. Judge Mnashy is a judge on the Second Circuit. 71 00:03:44.120 --> 00:03:48.599 He was a professor at George Mason Antonin Scalley School 72 00:03:48.599 --> 00:03:52.400 of Law, and he was a high ranking official in 73 00:03:52.439 --> 00:03:57.560 the first Trump administration. Any clerk for Justice Alito. Judge 74 00:03:57.680 --> 00:04:02.080 Row was also used to be a professor at Mason. 75 00:04:02.879 --> 00:04:04.919 She also was a high ranking official in the first 76 00:04:04.960 --> 00:04:08.439 Trump administration. She was head of Leleira and she previously 77 00:04:08.479 --> 00:04:12.319 clerk for Justice Thomas. But I'm gonna say something different 78 00:04:12.319 --> 00:04:14.759 about both of you. I like to say this about 79 00:04:14.800 --> 00:04:18.319 our whenever we have guests, is like a nice thing 80 00:04:18.360 --> 00:04:22.759 about them. And twenty years ago, I was an intern 81 00:04:23.120 --> 00:04:23.920 for Judge. 82 00:04:23.680 --> 00:04:25.399 Row in the White House. 83 00:04:25.680 --> 00:04:28.399 She was my boss, and Judge Row is one of 84 00:04:28.439 --> 00:04:30.120 the best bosses I've ever had. 85 00:04:30.600 --> 00:04:32.120 We had a lot of fun together. 86 00:04:33.000 --> 00:04:35.199 So when I was going on to get to try 87 00:04:35.240 --> 00:04:37.399 to get a clerkship. She was my clerkship letter writer, 88 00:04:38.160 --> 00:04:40.480 so we had been friends forever for so week. 89 00:04:41.480 --> 00:04:44.079 Yeah well, yeah, well we'll talk about that. 90 00:04:44.839 --> 00:04:48.319 And then while I was clerking, I met Judge Mnashy. 91 00:04:48.879 --> 00:04:51.120 I was clerking for Judge Janice Rogers Brown and he 92 00:04:51.240 --> 00:04:53.480 was clerking for Judge Doug Ginsburg, who we just saw 93 00:04:53.600 --> 00:04:57.079 earlier today. And I will say among the clerks, we 94 00:04:57.160 --> 00:05:01.160 all knew that Judge Mnashi was gonna go something famous 95 00:05:01.879 --> 00:05:05.360 because he was so scholarly, even among the clerks, and 96 00:05:05.439 --> 00:05:08.000 we're a very nerdy bunch, and even then he's like, 97 00:05:08.000 --> 00:05:13.360 oh wow, like Steve and Judge Vanashi was like so 98 00:05:13.600 --> 00:05:16.240 far into it in ways that we all learned from. 99 00:05:16.279 --> 00:05:18.439 So I'm just grateful to be here for both of you. 100 00:05:18.680 --> 00:05:20.800 And today we're going to talk about judging after a 101 00:05:20.839 --> 00:05:23.360 lower bride, in other words, in the world where no 102 00:05:23.439 --> 00:05:27.199 more Chevron deference. So we thought it'd be interesting to 103 00:05:27.240 --> 00:05:29.000 hear from a judge on the second circuit and a 104 00:05:29.079 --> 00:05:30.759 judge on the DC Circuit. 105 00:05:30.639 --> 00:05:31.720 And how it's going. 106 00:05:32.560 --> 00:05:34.439 So I'm gonna start with just a general kind of 107 00:05:34.439 --> 00:05:38.560 table setting question, which is like how do you do interpretation, 108 00:05:38.959 --> 00:05:41.000 like just your just do we know of the audience, like, 109 00:05:41.279 --> 00:05:44.040 what is your approach to interpretation generally, and then we 110 00:05:44.040 --> 00:05:45.720 can see how that fits into. 111 00:05:45.639 --> 00:05:46.879 Chevron and lower Bride. 112 00:05:47.040 --> 00:05:51.959 So we'll start, I guess with you, Judge Vanashi, Well, 113 00:05:51.959 --> 00:05:52.639 thanks very much. 114 00:05:52.920 --> 00:05:55.480 That was very gracious, and I'm delighted to be here. 115 00:05:56.439 --> 00:05:59.399 It's good to be back at school of law school 116 00:05:59.560 --> 00:06:03.360 sort of in this hotel, but I'm delighted to be 117 00:06:03.439 --> 00:06:06.040 part of it. In terms of, you know, how you 118 00:06:06.079 --> 00:06:08.680 approach tatutory interpretation questions, I kind of thought it would 119 00:06:08.720 --> 00:06:12.399 be less interesting to just say we're all textualists who 120 00:06:12.439 --> 00:06:14.199 start with the text and focus on it. So I 121 00:06:14.199 --> 00:06:17.120 thought maybe i'd sort of point out some areas where 122 00:06:17.160 --> 00:06:19.040 there might be disagreements even among. 123 00:06:18.800 --> 00:06:21.399 Textualists, but I have a view. 124 00:06:21.519 --> 00:06:23.879 So one of them is so, of course you do 125 00:06:23.959 --> 00:06:26.199 start with the text of the text is what is controlling, 126 00:06:26.720 --> 00:06:29.439 you know, but context also matters a lot, right, So 127 00:06:29.480 --> 00:06:32.800 there's Sam Bray wrote an article I really like about 128 00:06:32.800 --> 00:06:35.360 the mischief rule about what the mischief is that the 129 00:06:35.439 --> 00:06:37.040 legislature was trying to get at. I think that that 130 00:06:37.120 --> 00:06:40.560 is a legitimate thing for somebody to think about and 131 00:06:40.639 --> 00:06:43.519 understanding the meaning of a text, you know, the mischief 132 00:06:43.519 --> 00:06:48.439 against which it was directed. Two is it is coherent 133 00:06:48.560 --> 00:06:51.319 talk about statutory purpose. You don't override a text with 134 00:06:51.360 --> 00:06:54.560 an unenacted purpose that you discover in the legisative history, 135 00:06:54.600 --> 00:06:56.720 but it is you do. The statute is meant to 136 00:06:56.759 --> 00:07:00.279 accomplish something and has to be coherent overall. I think 137 00:07:00.279 --> 00:07:03.079 that you do think about statutory purpose to some extent. 138 00:07:04.160 --> 00:07:07.959 Three is you know legislative history. As I just mentioned, 139 00:07:08.079 --> 00:07:11.199 there are very improper uses of it. But I tend 140 00:07:11.240 --> 00:07:12.920 to think if you're willing to look at the federalist 141 00:07:12.959 --> 00:07:15.319 papers to understand the meaning of the Constitution, there might 142 00:07:15.360 --> 00:07:21.399 be some cases in which the contemporaneous legislative history could 143 00:07:21.480 --> 00:07:26.000 illuminate how the language of the statute was understood. You know, 144 00:07:26.040 --> 00:07:29.079 I do think that the Justice Scalia prohibition and legislative 145 00:07:29.120 --> 00:07:32.600 history is generally prophylactic. I think actually it was Justice 146 00:07:32.600 --> 00:07:36.800 Alito who said at some point that Justice Scalia told 147 00:07:36.879 --> 00:07:39.759 judges to avoid legislative history of the way you tell 148 00:07:39.759 --> 00:07:41.920 an alcoholic to avoid alcohol. 149 00:07:43.000 --> 00:07:45.560 I meaning that it is pretty prophylactic because there are 150 00:07:46.120 --> 00:07:47.160 very bad uses of it. 151 00:07:47.240 --> 00:07:49.920 But I don't know if there needs to be categorically 152 00:07:49.920 --> 00:07:50.560 off the table. 153 00:07:51.040 --> 00:07:51.439 And I guess. 154 00:07:51.480 --> 00:07:54.519 The fourth thing that occurs to me is sometimes this 155 00:07:54.600 --> 00:08:00.560 goes under the heading of legal versus ordinary meaning. Sometimes 156 00:08:00.560 --> 00:08:04.759 you read some textualists and you'd think, generally you just 157 00:08:04.879 --> 00:08:08.600 do the ordinary language linguistic meaning of the statute. But 158 00:08:08.639 --> 00:08:10.759 then there are some exceptions when there's a legal term 159 00:08:10.800 --> 00:08:13.680 of art or legal terms, and I tend to think 160 00:08:13.720 --> 00:08:18.160 that legal language is more pervasive. And ultimately, our goal 161 00:08:18.240 --> 00:08:20.680 is to determine the law that the text creates, and 162 00:08:20.720 --> 00:08:23.920 sometimes that means it's not exactly what the linguistic meaning 163 00:08:24.000 --> 00:08:28.160 of the text is. So so anyway, so I do 164 00:08:28.680 --> 00:08:31.079 think that we are rooted in the text, but those 165 00:08:31.079 --> 00:08:33.919 are some areas where there's some disagreements, even among self 166 00:08:33.960 --> 00:08:35.000 described textualists. 167 00:08:35.080 --> 00:08:37.000 Yeah, it's very helpful. I think we're going to have 168 00:08:37.039 --> 00:08:39.759 a theme today, which is that Steve and I are 169 00:08:39.759 --> 00:08:42.159 going to agree on a lot of things. So Aaron, 170 00:08:42.200 --> 00:08:43.759 your job will be to try to find areas where 171 00:08:43.759 --> 00:08:46.559 maybe we don't agree. But I very much take all 172 00:08:46.559 --> 00:08:50.240 the things that you said, you know, in general, I 173 00:08:50.320 --> 00:08:54.320 start with the text. I often read not just the 174 00:08:54.360 --> 00:08:57.480 provisions that are issued, but the entire public law that 175 00:08:57.519 --> 00:08:59.840 the provision is a part of. Right looking at the structure. 176 00:09:00.759 --> 00:09:04.039 Oftentimes you get meaning from looking at all the pieces together. 177 00:09:04.679 --> 00:09:08.960 And I taught a taught statutory interpretation for I think 178 00:09:09.000 --> 00:09:11.120 almost eleven years at George Mason, and I used to 179 00:09:11.120 --> 00:09:13.080 say to my students, and I think I believe this 180 00:09:13.159 --> 00:09:16.039 even more now as a judge, which is that interpretation 181 00:09:16.519 --> 00:09:18.919 is in part science, but a lot of it is 182 00:09:19.360 --> 00:09:22.919 an art. And you know, in Lopra Bright, the Supreme 183 00:09:22.960 --> 00:09:25.039 Court says we have to find the best meaning of 184 00:09:25.080 --> 00:09:28.080 the statute. And I agree very much with Steve that 185 00:09:28.080 --> 00:09:31.559 that often requires not just being you know, kind of 186 00:09:31.559 --> 00:09:34.480 a high bound literalist as to, you know, looking up 187 00:09:34.480 --> 00:09:37.279 the words in the dictionary, but really thinking about what 188 00:09:37.320 --> 00:09:40.919 the words mean in context. You know, what was what 189 00:09:41.000 --> 00:09:43.120 is this law trying to do? You know, are there 190 00:09:43.120 --> 00:09:47.360 any constitutional or common law backdrops that inform the meaning 191 00:09:47.360 --> 00:09:50.159 of the statute. And you really need to think of 192 00:09:50.240 --> 00:09:54.039 all of those things together to find ultimately the best 193 00:09:54.080 --> 00:09:57.480 meaning of the law. So even I think for people 194 00:09:57.480 --> 00:10:01.120 who are committed formalists and committed textual there's a fair 195 00:10:01.159 --> 00:10:04.000 amount of judgment that's involved. And I think if you 196 00:10:04.080 --> 00:10:08.320 read Justice Gale's opinions, not necessarily his essays or speeches. 197 00:10:08.840 --> 00:10:11.200 You can see that. You can see the kind of 198 00:10:11.320 --> 00:10:15.480 judgment he applied statutory interpretation, which is often much more 199 00:10:15.679 --> 00:10:18.639 wide ranging than you know. Just read the text, Read 200 00:10:18.679 --> 00:10:19.720 the text, Read the text. 201 00:10:19.879 --> 00:10:23.039 All right, Well, I guess we'll get into Chevron Loperbright 202 00:10:23.080 --> 00:10:26.000 in a second. But on this subject you will see 203 00:10:26.240 --> 00:10:29.200 different judges who will say, well, all right, you've just 204 00:10:29.240 --> 00:10:32.120 put everything in the mix. I'm much more going to 205 00:10:32.120 --> 00:10:36.200 be look at the purpose with this lot supposed to accomplish. 206 00:10:36.279 --> 00:10:37.000 Do we want that? 207 00:10:37.080 --> 00:10:39.279 Do we want all judges to be having the same 208 00:10:39.759 --> 00:10:44.559 general not just broad theory, but like how they actually 209 00:10:44.600 --> 00:10:46.120 do it. Do we want all judges to do the 210 00:10:46.120 --> 00:10:48.840 same or do we want pluralism and how judges are 211 00:10:48.879 --> 00:10:52.039 trying to read things? Like what I mean, if everybody 212 00:10:52.080 --> 00:10:54.279 is doing the same way, we're seeing the same answers 213 00:10:54.639 --> 00:10:58.200 on all of the questions. So what's going on? Explained? 214 00:11:00.039 --> 00:11:02.559 Different answers because sometimes the questions are hard. I mean, 215 00:11:02.639 --> 00:11:03.919 sometimes you do have to. 216 00:11:03.879 --> 00:11:05.639 Do but are we all doing the same thing? Are 217 00:11:05.759 --> 00:11:07.679 like your colleagues doing the same thing? 218 00:11:07.679 --> 00:11:10.159 As a practical matter, not everybody is doing the same thing. 219 00:11:10.200 --> 00:11:14.799 I think not everybody agrees on the method, right, So 220 00:11:15.039 --> 00:11:18.960 like I do think that the move toward textualism has 221 00:11:19.879 --> 00:11:22.279 changed the kind of outer boundaries. Like sometimes you read 222 00:11:22.279 --> 00:11:25.000 opinions from the DC circuit in the nineteen seventies and 223 00:11:25.039 --> 00:11:27.600 they're like from a different world, Like there is a 224 00:11:27.679 --> 00:11:29.840 disregard of the text that I don't think is possible. 225 00:11:29.879 --> 00:11:34.639 Now everybody roots their answers, you know, at least in 226 00:11:34.679 --> 00:11:37.480 the text, but a lot of judges might resort to 227 00:11:37.519 --> 00:11:41.039 ambiguity much more quickly than other judges. They might say, well, 228 00:11:41.080 --> 00:11:43.879 the text is actually ambiguous, not because of something in 229 00:11:43.879 --> 00:11:46.720 the text, but because I think Congress had this purpose 230 00:11:46.759 --> 00:11:48.840 and the purpose doesn't seem to match the text, and 231 00:11:48.879 --> 00:11:51.080 that's ambiguous, then I'm going to use some other principle. 232 00:11:51.360 --> 00:11:54.960 And so you know that's not exactly textualism, even the fly. 233 00:11:54.879 --> 00:11:57.360 Under that banner. So I do think there is a 234 00:11:57.440 --> 00:11:59.639 diversity of a substantive approaches. 235 00:11:59.679 --> 00:12:01.600 So there's lot of agreement, but then you're going to 236 00:12:01.639 --> 00:12:04.399 have disagreements even because as Nao and I just said, 237 00:12:04.720 --> 00:12:07.000 like a lot of it is more hard than science, 238 00:12:07.000 --> 00:12:09.519 and so people like comes to different conclusions even if 239 00:12:09.519 --> 00:12:12.399 they agreed on the methodological principles. 240 00:12:12.919 --> 00:12:16.039 Yeah, I think one difference is and I agree with 241 00:12:16.080 --> 00:12:19.960 Steve that not everyone is maybe a true textualist. Right, 242 00:12:20.000 --> 00:12:22.960 So Justice Kagan famously said we're all textualists now, but 243 00:12:23.720 --> 00:12:26.360 I'm not sure that all the lower court judges have 244 00:12:26.399 --> 00:12:30.440 gotten that memo from Justice Kagan. So I think one 245 00:12:30.440 --> 00:12:32.480 of the differences is is you know, you mentioned that 246 00:12:32.519 --> 00:12:34.399 we said there are a number of sources that go 247 00:12:34.480 --> 00:12:38.200 into finding meaning. I think maybe one of the main 248 00:12:38.279 --> 00:12:42.720 differences is do you use those other sources to get 249 00:12:42.759 --> 00:12:45.200 at the meaning of the text of the statute, which 250 00:12:45.240 --> 00:12:46.720 is what I would say we should do. Right? Is 251 00:12:46.759 --> 00:12:48.799 this a common law term? What is the common law 252 00:12:48.840 --> 00:12:53.559 meaning versus looking at sources maybe outside the text, you know, 253 00:12:53.720 --> 00:12:56.840 public policy? Does this make sense? Is it consistent with 254 00:12:56.879 --> 00:13:00.320 the broader purpose of the statue or with some you know, 255 00:13:00.440 --> 00:13:04.600 preferred outcome. And I think that is a big difference 256 00:13:04.679 --> 00:13:08.799 in how people are doing this enterprise of interpretation. 257 00:13:09.159 --> 00:13:12.919 Yeah, the kind of the classical distinction between textualism and purposeivism. 258 00:13:13.000 --> 00:13:15.679 And I guess as it's been explained is the textualist 259 00:13:15.759 --> 00:13:18.919 gives priority to the semantic content of the text because 260 00:13:18.960 --> 00:13:21.600 they say, well, the text is the vehicle by which, 261 00:13:22.039 --> 00:13:24.960 you know, you could have the democratic process operate. Maybe 262 00:13:25.759 --> 00:13:28.559 people in the minority extracted some kind of concession to 263 00:13:28.600 --> 00:13:31.120 the text and some kind of compromise, and the vehicle 264 00:13:31.120 --> 00:13:35.000 by which they couldn't negotiate is the precision of the text, 265 00:13:35.039 --> 00:13:37.240 which might go so far but not further in the 266 00:13:37.320 --> 00:13:39.679 pursuit of some kind of goal based on that kind 267 00:13:39.679 --> 00:13:43.960 of give and take. And I think the purposivist says, 268 00:13:44.759 --> 00:13:47.679 you know, not unreasonably. Come on, people don't really think 269 00:13:47.720 --> 00:13:50.000 about the text that way. You know, they were trying 270 00:13:50.000 --> 00:13:52.039 to achieve some kind of policy, and so they would 271 00:13:52.080 --> 00:13:55.559 prioritize the policy content over it, you know, over the 272 00:13:55.600 --> 00:13:58.759 semantic content, because they don't really believe that anybody parses 273 00:13:58.759 --> 00:14:00.200 the text. 274 00:14:00.360 --> 00:14:01.799 I think that's the basic disagreement. 275 00:14:01.840 --> 00:14:05.120 And even if there aren't as many people who go 276 00:14:05.200 --> 00:14:08.279 around calling themselves non textualists like I think that that 277 00:14:08.440 --> 00:14:10.919 still is a delighting line among judges. 278 00:14:11.159 --> 00:14:14.240 Okay, so now we come to Chevron, on which for 279 00:14:14.600 --> 00:14:18.080 decades the familiar two step process or by the end 280 00:14:18.159 --> 00:14:21.000 like eight steps. But we had the rule, you know, 281 00:14:21.120 --> 00:14:26.399 is there an ambiguity. If so, is the agency's interpretation reasonable. 282 00:14:27.159 --> 00:14:29.039 Lower Bright comes along and says, no, no, no, we're 283 00:14:29.039 --> 00:14:29.559 not doing that. 284 00:14:29.600 --> 00:14:30.080 Anymore. 285 00:14:30.639 --> 00:14:30.720 So. 286 00:14:30.759 --> 00:14:32.559 I guess the question that I have for the two 287 00:14:32.559 --> 00:14:34.360 of you is, I mean, what do you think of 288 00:14:34.440 --> 00:14:37.240 lowber Bright itself as a judicial opinion? I know you're 289 00:14:37.480 --> 00:14:40.080 follow it regardless, but what do you think was it right? 290 00:14:40.240 --> 00:14:40.799 Was it wrong? 291 00:14:41.279 --> 00:14:43.240 What do you think of the Court's analysis in the 292 00:14:43.279 --> 00:14:43.960 case itself? 293 00:14:45.039 --> 00:14:47.759 I mean, I think lowper Bright was a great decision, 294 00:14:48.960 --> 00:14:53.159 maybe no surprise to me. Lower Bright was maybe less 295 00:14:53.159 --> 00:14:55.879 of a c change than some people made it out 296 00:14:55.879 --> 00:14:57.639 to be. I mean, I think Loper Bright sort of 297 00:14:57.879 --> 00:15:01.639 described what the court was. The Court hadn't applied Chevron 298 00:15:01.720 --> 00:15:04.759 in some whatever eight or ten years before it decided Loperbright, 299 00:15:04.879 --> 00:15:08.840 and frankly, in my work, I didn't. I'm not sure 300 00:15:08.840 --> 00:15:11.480 if I've ever cited Chevron in any of my cases. 301 00:15:12.360 --> 00:15:15.360 And it seems to me that Loper Bright describes the 302 00:15:15.399 --> 00:15:17.919 way that we should be looking at agency action, which 303 00:15:17.960 --> 00:15:21.720 is there's first a question of you know, there's a 304 00:15:21.759 --> 00:15:24.559 question like does the statute allow the agency to do 305 00:15:24.799 --> 00:15:27.279 what it did right? And what's the best meaning of 306 00:15:27.320 --> 00:15:29.799 the statute? Does it give the agency this authority? And 307 00:15:29.840 --> 00:15:33.200 maybe properly understood that was always how Chevron Step one 308 00:15:33.240 --> 00:15:36.799 was supposed to work. So to me, that that idea, 309 00:15:37.039 --> 00:15:40.960 and I think an idea that's repeated throughout Loperbright, which 310 00:15:41.000 --> 00:15:43.559 is that the judiciary is independent and it has an 311 00:15:43.559 --> 00:15:48.159 independent Article three obligation and responsibility to say what the 312 00:15:48.240 --> 00:15:51.399 law is. Means that you can't defer to the executive 313 00:15:51.399 --> 00:15:56.240 branch on legal interpretation. And that seems to me entirely 314 00:15:56.240 --> 00:15:59.519 correct and consistent with the text and structure of the Constitution. 315 00:16:00.320 --> 00:16:02.000 Yeah, I mean, in a way, you know, it's a 316 00:16:02.039 --> 00:16:05.759 pretty the modest decision. It didn't say it's unconstitutional for 317 00:16:05.840 --> 00:16:11.000 Congress to make delegations to agencies. It just said, Chevron 318 00:16:11.039 --> 00:16:14.320 relandimus presumption that whenever there's an ambiguity in a statute 319 00:16:14.639 --> 00:16:17.519 that itself is a delegation, that Congress wouldn't have wanted 320 00:16:17.919 --> 00:16:20.279 the ambiguity resolved by the agency. And that's just an 321 00:16:20.360 --> 00:16:24.480 unjustified presumption. Right, So the Congress said, and the APA 322 00:16:24.559 --> 00:16:26.720 the course decide questions of law. That is a question 323 00:16:26.759 --> 00:16:29.240 of law, and so the default rule is maybe Congress 324 00:16:29.240 --> 00:16:31.360 should decide that question. I mean, the way I had 325 00:16:31.360 --> 00:16:34.799 always thought about chev Run difference is that there's sort 326 00:16:34.799 --> 00:16:38.240 of two basic kinds of cases. There's one case where 327 00:16:38.320 --> 00:16:42.879 Congress uses a word like reasonable, like tells the agency 328 00:16:42.919 --> 00:16:45.279 put the transmitters a reasonable distance from each other. 329 00:16:45.320 --> 00:16:46.600 And then when somebody comes in. 330 00:16:46.519 --> 00:16:49.519 And says, well, the agency is acting unlawfully because they 331 00:16:49.559 --> 00:16:52.120 put them fifteen feet apart instead of twenty feet apart, 332 00:16:54.120 --> 00:16:56.240 you know, is that right? And the truth is you 333 00:16:56.240 --> 00:17:00.279 don't really need a special doctrine for that, because what 334 00:17:00.279 --> 00:17:02.960 the agency is doing, it's not interpreting the word reasonable 335 00:17:03.000 --> 00:17:05.599 to mean fifteen feet or twenty feet. It's just acting 336 00:17:05.640 --> 00:17:09.599 within a kind of range of implementation authority that Congress 337 00:17:09.599 --> 00:17:12.400 has left unspecified. So the person should fail set claim 338 00:17:12.720 --> 00:17:15.240 if this action doesn't dictate that it's fifteen rather than 339 00:17:15.240 --> 00:17:18.319 twenty feet, and so there wasn't really a need for 340 00:17:18.359 --> 00:17:20.359 it in that case. Then there's another kind of case 341 00:17:20.359 --> 00:17:24.079 where everybody agrees that Congress has spoken to the issue, 342 00:17:24.079 --> 00:17:26.799 like there's some kind of specific text on point, and 343 00:17:26.839 --> 00:17:29.480 you think that Congress had an answer in mind, but 344 00:17:29.599 --> 00:17:32.720 people are disputing have best to interpret it. And in 345 00:17:32.759 --> 00:17:35.200 that kind of case, there's no reason to think that 346 00:17:35.240 --> 00:17:37.759 Congress would have wanted the agency to decide like they 347 00:17:37.759 --> 00:17:41.079 weren't leaving something unspecified. They had in mind some kind 348 00:17:41.119 --> 00:17:43.880 of an answer and so that's the kind of case 349 00:17:43.880 --> 00:17:46.839 that courts should address. And I kind of think Lilber 350 00:17:46.920 --> 00:17:51.039 Bright says in that kind of case, there's no reason 351 00:17:51.079 --> 00:17:54.240 to think that there's a delegation to the agency. The 352 00:17:54.279 --> 00:17:57.240 presumption is that Congress would have wanted the courts to 353 00:17:57.240 --> 00:17:59.880 decide that question and to enforce whatever the answer was 354 00:17:59.880 --> 00:18:03.160 that Congress wanted. And then the other kind of case, 355 00:18:03.160 --> 00:18:06.119 where it's open textured or there's an express delegation of 356 00:18:06.160 --> 00:18:08.759 the agency to define a term or something, that's just 357 00:18:08.799 --> 00:18:14.359 what the statute means, and you can enforce it by, 358 00:18:14.519 --> 00:18:17.759 you know, making sure that the agency is acting within 359 00:18:17.759 --> 00:18:20.880 the bounds of its discretion. But it's sort of misleading 360 00:18:20.920 --> 00:18:23.160 to even think about that as a delegation of interpretive 361 00:18:23.200 --> 00:18:26.319 authority when it is something like implementation, right, So I 362 00:18:26.599 --> 00:18:27.960 think it also clarifies that. 363 00:18:28.599 --> 00:18:31.720 So you're both pro Lope or Bright, we know that's 364 00:18:31.759 --> 00:18:35.160 not true for all administrative last collars, and certainly for 365 00:18:35.200 --> 00:18:35.920 all judges. 366 00:18:36.240 --> 00:18:37.200 One of the things that. 367 00:18:37.160 --> 00:18:39.559 I used to use back when I would write articles 368 00:18:39.559 --> 00:18:43.359 about Chevron, which I don't write anymore, was there was 369 00:18:43.400 --> 00:18:46.599 an article in twenty eighteen by Judge Posner and Abby 370 00:18:46.640 --> 00:18:51.160 Gluck where they did a survey of federal appellate judges 371 00:18:51.359 --> 00:18:52.960 around the country, and they ask them a whole bunch 372 00:18:53.000 --> 00:18:53.359 of things. 373 00:18:54.400 --> 00:18:55.319 But one of the things that. 374 00:18:55.319 --> 00:18:58.079 They found was a difference between DC Circuit judges and 375 00:18:58.119 --> 00:18:59.119 others about Chevron. 376 00:18:59.160 --> 00:19:01.319 And this is a quote. All but one of the d. 377 00:19:01.319 --> 00:19:04.279 C Circuit judges we interviewed, who are of different generations 378 00:19:04.279 --> 00:19:08.119 and political parties, were admirers of Chevron difference, whereas most 379 00:19:08.160 --> 00:19:10.759 other judges from the other courts of appeals were decidedly 380 00:19:10.839 --> 00:19:15.240 anti Chevron. And the judges expressing skepticism regarding Chevron divide 381 00:19:15.279 --> 00:19:18.960 equally among liberals and conservatives. So according to them, the 382 00:19:19.000 --> 00:19:22.559 difference isn't liberal versus conservative, it is d C Circuit 383 00:19:22.640 --> 00:19:27.680 versus everybody else. So I'm just curious like reactions to this, 384 00:19:27.799 --> 00:19:30.880 as we have d C Circuit and everybody else. 385 00:19:30.920 --> 00:19:34.039 So what do we think here? Why don't we start 386 00:19:34.039 --> 00:19:34.880 with the DC Circuit. 387 00:19:35.960 --> 00:19:38.359 You know, everybody always gigs up on the d C Circuit. 388 00:19:39.039 --> 00:19:44.599 You know it's slowely, but you know, I'll give you 389 00:19:44.599 --> 00:19:47.359 an anecdote. So after Locerbride, there were a number of 390 00:19:48.920 --> 00:19:51.680 a number of cases that where the Supreme Court granted 391 00:19:51.720 --> 00:19:56.079 cert vacated the decision and remanded for reconsideration, because you know, 392 00:19:56.119 --> 00:19:59.079 the panel had relied on Chevron. And I was talking 393 00:19:59.079 --> 00:20:01.839 to some of my colleagues and they were complaining that 394 00:20:01.920 --> 00:20:06.160 they had so many gvrs after Low for Bright because 395 00:20:06.279 --> 00:20:09.000 they rely on Chevron a great deal. And I was like, oh, 396 00:20:09.039 --> 00:20:13.240 I have zero gvrs from lower right, which I thought 397 00:20:13.319 --> 00:20:14.920 was just kind of funny, and they were they were 398 00:20:15.079 --> 00:20:16.960 not amused by that. I thought, I thought it was 399 00:20:17.119 --> 00:20:20.279 I thought it was funny. So I do think on 400 00:20:20.319 --> 00:20:24.160 the d C circuit, many of my colleagues were faithful 401 00:20:24.279 --> 00:20:27.480