Speaker 1: Welcome back to Gray Matters, the podcast of the Seaboarding
Speaker 1: Gray Center for the Study of the Administrative State. I'm
Speaker 1: jace LINCTON, the Gray Center's Policy and Strategy Director. This
Speaker 1: episode is the final panel discussion from our October conference.
Speaker 1: You will hear Judge Naomi Row from the DC Circuit
Speaker 1: and Judge Stephen Minashi from the Second Circuit talk with
Speaker 1: Aaron Nielsen from the University of Texas at Austin about
Speaker 1: how lowber Bright has affected the way they approach their
Speaker 1: jobs as judges.
Speaker 2: Enjoy Before we jump in and I introduced the moderator,
Speaker 2: I just want to say just a brief word about
Speaker 2: one of our other speakers.
Speaker 3: On this panel. It happens that this year.
Speaker 2: Is the tenth anniversary of the founding of the Seaboarding
Speaker 2: Gray Center. It wasn't originally called the Seaboarding Gray Center.
Speaker 2: It was called just the Center for the Study of
Speaker 2: the Administrative State. Rolls off the tone it was found
Speaker 2: I always tell students when I'm introduced. Sometimes I'm introduced
Speaker 2: as running the Center for the Administrative State. I say, no,
Speaker 2: that's actually Yale. But it was founded ten years ago
Speaker 2: by Professor Naomi Row. At Scalia Law School now Judge
Speaker 2: Naomi Row. She led the Center for its first several
Speaker 2: years before being called into public service, first at AIRA
Speaker 2: and the bench, and when she went into government, she said, Adam,
Speaker 2: could you possibly run the Grace Center for a year
Speaker 2: until I come back a year or two. I'm now
Speaker 2: eight years into my one year side job, but I'm
Speaker 2: enormously grateful for that.
Speaker 3: She grades me every year I get a report card.
Speaker 2: But in all seriousness, I do want to say, since
Speaker 2: she's here and it's the tenth anniversary, everything we do now,
Speaker 2: even ten years later, is basically just an outgrowth of
Speaker 2: what she started ten years ago, whether it's the conferences,
Speaker 2: the research round tables. If she were to come back tomorrow,
Speaker 2: and you're welcome anytime, if she were to come back tomorrow,
Speaker 2: it would all look very familiar to her. We're very
Speaker 2: grateful to get to do what we do based on
Speaker 2: the foundation that she laid for it, and the fact
Speaker 2: that she gets to be that we get to invite
Speaker 2: her here today as a speaker is an extra treat
Speaker 2: I also I'll just point out with Judgemanashy, we have
Speaker 2: a reunion of the Scalia Law faculty Alumni Society. I
Speaker 2: see Judge Mnashi himself was the Scalia law professor and
Speaker 2: an early supporter of the Gray Center's work. I've already
Speaker 2: introduced Professor Nielson once before, but for those who missed
Speaker 2: the Panel of Federal Reserve, I'll just say very briefly,
Speaker 2: he is a professor of law at U T. Austin
Speaker 2: and a senior fellow at the Civitas Institute. He just
Speaker 2: returned to academia from service in the Solicitor General's Office
Speaker 2: in Texas. He was the Solicitor General for the state
Speaker 2: of Texas, and if you heard his brief but notable
Speaker 2: criticisms of California in the Federal Reserve panel, you'll know
Speaker 2: he still is very much a Texan.
Speaker 3: But we are grateful that Aaron joined.
Speaker 2: Us not once but twice today, and now I'll turn
Speaker 2: it over to him.
Speaker 3: Thanks sir.
Speaker 4: All right, that's probably the first time I've actually ever
Speaker 4: been called the Texan.
Speaker 3: I will take that.
Speaker 4: I spent ten years as a professor at b YU,
Speaker 4: and suddenly, out of the blue, I became Solicitor General
Speaker 4: of Texas, and it took a while for me to
Speaker 4: feel comfortable walking into court saying I'm here on behalf
Speaker 4: of the state of Texas. I never got the cowboy
Speaker 4: boots that head Cruise used to wear to court, but
Speaker 4: you know, I'm honored to be here with two of
Speaker 4: my favorite people, Judges Rao and Minashi. I want to start.
Speaker 4: We all know who you are, but just quick who
Speaker 4: you are. Judge Mnashy is a judge on the Second Circuit.
Speaker 4: He was a professor at George Mason Antonin Scalley School
Speaker 4: of Law, and he was a high ranking official in
Speaker 4: the first Trump administration. Any clerk for Justice Alito. Judge
Speaker 4: Row was also used to be a professor at Mason.
Speaker 4: She also was a high ranking official in the first
Speaker 4: Trump administration. She was head of Leleira and she previously
Speaker 4: clerk for Justice Thomas. But I'm gonna say something different
Speaker 4: about both of you. I like to say this about
Speaker 4: our whenever we have guests, is like a nice thing
Speaker 4: about them. And twenty years ago, I was an intern
Speaker 4: for Judge.
Speaker 3: Row in the White House.
Speaker 4: She was my boss, and Judge Row is one of
Speaker 4: the best bosses I've ever had.
Speaker 3: We had a lot of fun together.
Speaker 4: So when I was going on to get to try
Speaker 4: to get a clerkship. She was my clerkship letter writer,
Speaker 4: so we had been friends forever for so week.
Speaker 3: Yeah well, yeah, well we'll talk about that.
Speaker 4: And then while I was clerking, I met Judge Mnashy.
Speaker 4: I was clerking for Judge Janice Rogers Brown and he
Speaker 4: was clerking for Judge Doug Ginsburg, who we just saw
Speaker 4: earlier today. And I will say among the clerks, we
Speaker 4: all knew that Judge Mnashi was gonna go something famous
Speaker 4: because he was so scholarly, even among the clerks, and
Speaker 4: we're a very nerdy bunch, and even then he's like,
Speaker 4: oh wow, like Steve and Judge Vanashi was like so
Speaker 4: far into it in ways that we all learned from.
Speaker 4: So I'm just grateful to be here for both of you.
Speaker 4: And today we're going to talk about judging after a
Speaker 4: lower bride, in other words, in the world where no
Speaker 4: more Chevron deference. So we thought it'd be interesting to
Speaker 4: hear from a judge on the second circuit and a
Speaker 4: judge on the DC Circuit.
Speaker 3: And how it's going.
Speaker 4: So I'm gonna start with just a general kind of
Speaker 4: table setting question, which is like how do you do interpretation,
Speaker 4: like just your just do we know of the audience, like,
Speaker 4: what is your approach to interpretation generally, and then we
Speaker 4: can see how that fits into.
Speaker 3: Chevron and lower Bride.
Speaker 4: So we'll start, I guess with you, Judge Vanashi, Well,
Speaker 4: thanks very much.
Speaker 3: That was very gracious, and I'm delighted to be here.
Speaker 5: It's good to be back at school of law school
Speaker 5: sort of in this hotel, but I'm delighted to be
Speaker 5: part of it. In terms of, you know, how you
Speaker 5: approach tatutory interpretation questions, I kind of thought it would
Speaker 5: be less interesting to just say we're all textualists who
Speaker 5: start with the text and focus on it. So I
Speaker 5: thought maybe i'd sort of point out some areas where
Speaker 5: there might be disagreements even among.
Speaker 3: Textualists, but I have a view.
Speaker 5: So one of them is so, of course you do
Speaker 5: start with the text of the text is what is controlling,
Speaker 5: you know, but context also matters a lot, right, So
Speaker 5: there's Sam Bray wrote an article I really like about
Speaker 5: the mischief rule about what the mischief is that the
Speaker 5: legislature was trying to get at. I think that that
Speaker 5: is a legitimate thing for somebody to think about and
Speaker 5: understanding the meaning of a text, you know, the mischief
Speaker 5: against which it was directed. Two is it is coherent
Speaker 5: talk about statutory purpose. You don't override a text with
Speaker 5: an unenacted purpose that you discover in the legisative history,
Speaker 5: but it is you do. The statute is meant to
Speaker 5: accomplish something and has to be coherent overall. I think
Speaker 5: that you do think about statutory purpose to some extent.
Speaker 5: Three is you know legislative history. As I just mentioned,
Speaker 5: there are very improper uses of it. But I tend
Speaker 5: to think if you're willing to look at the federalist
Speaker 5: papers to understand the meaning of the Constitution, there might
Speaker 5: be some cases in which the contemporaneous legislative history could
Speaker 5: illuminate how the language of the statute was understood. You know,
Speaker 5: I do think that the Justice Scalia prohibition and legislative
Speaker 5: history is generally prophylactic. I think actually it was Justice
Speaker 5: Alito who said at some point that Justice Scalia told
Speaker 5: judges to avoid legislative history of the way you tell
Speaker 5: an alcoholic to avoid alcohol.
Speaker 3: I meaning that it is pretty prophylactic because there are
Speaker 3: very bad uses of it.
Speaker 5: But I don't know if there needs to be categorically
Speaker 5: off the table.
Speaker 3: And I guess.
Speaker 5: The fourth thing that occurs to me is sometimes this
Speaker 5: goes under the heading of legal versus ordinary meaning. Sometimes
Speaker 5: you read some textualists and you'd think, generally you just
Speaker 5: do the ordinary language linguistic meaning of the statute. But
Speaker 5: then there are some exceptions when there's a legal term
Speaker 5: of art or legal terms, and I tend to think
Speaker 5: that legal language is more pervasive. And ultimately, our goal
Speaker 5: is to determine the law that the text creates, and
Speaker 5: sometimes that means it's not exactly what the linguistic meaning
Speaker 5: of the text is. So so anyway, so I do
Speaker 5: think that we are rooted in the text, but those
Speaker 5: are some areas where there's some disagreements, even among self
Speaker 5: described textualists.
Speaker 6: Yeah, it's very helpful. I think we're going to have
Speaker 6: a theme today, which is that Steve and I are
Speaker 6: going to agree on a lot of things. So Aaron,
Speaker 6: your job will be to try to find areas where
Speaker 6: maybe we don't agree. But I very much take all
Speaker 6: the things that you said, you know, in general, I
Speaker 6: start with the text. I often read not just the
Speaker 6: provisions that are issued, but the entire public law that
Speaker 6: the provision is a part of. Right looking at the structure.
Speaker 6: Oftentimes you get meaning from looking at all the pieces together.
Speaker 6: And I taught a taught statutory interpretation for I think
Speaker 6: almost eleven years at George Mason, and I used to
Speaker 6: say to my students, and I think I believe this
Speaker 6: even more now as a judge, which is that interpretation
Speaker 6: is in part science, but a lot of it is
Speaker 6: an art. And you know, in Lopra Bright, the Supreme
Speaker 6: Court says we have to find the best meaning of
Speaker 6: the statute. And I agree very much with Steve that
Speaker 6: that often requires not just being you know, kind of
Speaker 6: a high bound literalist as to, you know, looking up
Speaker 6: the words in the dictionary, but really thinking about what
Speaker 6: the words mean in context. You know, what was what
Speaker 6: is this law trying to do? You know, are there
Speaker 6: any constitutional or common law backdrops that inform the meaning
Speaker 6: of the statute. And you really need to think of
Speaker 6: all of those things together to find ultimately the best
Speaker 6: meaning of the law. So even I think for people
Speaker 6: who are committed formalists and committed textual there's a fair
Speaker 6: amount of judgment that's involved. And I think if you
Speaker 6: read Justice Gale's opinions, not necessarily his essays or speeches.
Speaker 6: You can see that. You can see the kind of
Speaker 6: judgment he applied statutory interpretation, which is often much more
Speaker 6: wide ranging than you know. Just read the text, Read
Speaker 6: the text, Read the text.
Speaker 4: All right, Well, I guess we'll get into Chevron Loperbright
Speaker 4: in a second. But on this subject you will see
Speaker 4: different judges who will say, well, all right, you've just
Speaker 4: put everything in the mix. I'm much more going to
Speaker 4: be look at the purpose with this lot supposed to accomplish.
Speaker 3: Do we want that?
Speaker 4: Do we want all judges to be having the same
Speaker 4: general not just broad theory, but like how they actually
Speaker 4: do it. Do we want all judges to do the
Speaker 4: same or do we want pluralism and how judges are
Speaker 4: trying to read things? Like what I mean, if everybody
Speaker 4: is doing the same way, we're seeing the same answers
Speaker 4: on all of the questions. So what's going on? Explained?
Speaker 5: Different answers because sometimes the questions are hard. I mean,
Speaker 5: sometimes you do have to.
Speaker 4: Do but are we all doing the same thing? Are
Speaker 4: like your colleagues doing the same thing?
Speaker 5: As a practical matter, not everybody is doing the same thing.
Speaker 5: I think not everybody agrees on the method, right, So
Speaker 5: like I do think that the move toward textualism has
Speaker 5: changed the kind of outer boundaries. Like sometimes you read
Speaker 5: opinions from the DC circuit in the nineteen seventies and
Speaker 5: they're like from a different world, Like there is a
Speaker 5: disregard of the text that I don't think is possible.
Speaker 5: Now everybody roots their answers, you know, at least in
Speaker 5: the text, but a lot of judges might resort to
Speaker 5: ambiguity much more quickly than other judges. They might say, well,
Speaker 5: the text is actually ambiguous, not because of something in
Speaker 5: the text, but because I think Congress had this purpose
Speaker 5: and the purpose doesn't seem to match the text, and
Speaker 5: that's ambiguous, then I'm going to use some other principle.
Speaker 5: And so you know that's not exactly textualism, even the fly.
Speaker 3: Under that banner. So I do think there is a
Speaker 3: diversity of a substantive approaches.
Speaker 5: So there's lot of agreement, but then you're going to
Speaker 5: have disagreements even because as Nao and I just said,
Speaker 5: like a lot of it is more hard than science,
Speaker 5: and so people like comes to different conclusions even if
Speaker 5: they agreed on the methodological principles.
Speaker 6: Yeah, I think one difference is and I agree with
Speaker 6: Steve that not everyone is maybe a true textualist. Right,
Speaker 6: So Justice Kagan famously said we're all textualists now, but
Speaker 6: I'm not sure that all the lower court judges have
Speaker 6: gotten that memo from Justice Kagan. So I think one
Speaker 6: of the differences is is you know, you mentioned that
Speaker 6: we said there are a number of sources that go
Speaker 6: into finding meaning. I think maybe one of the main
Speaker 6: differences is do you use those other sources to get
Speaker 6: at the meaning of the text of the statute, which
Speaker 6: is what I would say we should do. Right? Is
Speaker 6: this a common law term? What is the common law
Speaker 6: meaning versus looking at sources maybe outside the text, you know,
Speaker 6: public policy? Does this make sense? Is it consistent with
Speaker 6: the broader purpose of the statue or with some you know,
Speaker 6: preferred outcome. And I think that is a big difference
Speaker 6: in how people are doing this enterprise of interpretation.
Speaker 5: Yeah, the kind of the classical distinction between textualism and purposeivism.
Speaker 5: And I guess as it's been explained is the textualist
Speaker 5: gives priority to the semantic content of the text because
Speaker 5: they say, well, the text is the vehicle by which,
Speaker 5: you know, you could have the democratic process operate. Maybe
Speaker 5: people in the minority extracted some kind of concession to
Speaker 5: the text and some kind of compromise, and the vehicle
Speaker 5: by which they couldn't negotiate is the precision of the text,
Speaker 5: which might go so far but not further in the
Speaker 5: pursuit of some kind of goal based on that kind
Speaker 5: of give and take. And I think the purposivist says,
Speaker 5: you know, not unreasonably. Come on, people don't really think
Speaker 5: about the text that way. You know, they were trying
Speaker 5: to achieve some kind of policy, and so they would
Speaker 5: prioritize the policy content over it, you know, over the
Speaker 5: semantic content, because they don't really believe that anybody parses
Speaker 5: the text.
Speaker 3: I think that's the basic disagreement.
Speaker 5: And even if there aren't as many people who go
Speaker 5: around calling themselves non textualists like I think that that
Speaker 5: still is a delighting line among judges.
Speaker 4: Okay, so now we come to Chevron, on which for
Speaker 4: decades the familiar two step process or by the end
Speaker 4: like eight steps. But we had the rule, you know,
Speaker 4: is there an ambiguity. If so, is the agency's interpretation reasonable.
Speaker 4: Lower Bright comes along and says, no, no, no, we're
Speaker 4: not doing that.
Speaker 3: Anymore.
Speaker 5: So.
Speaker 4: I guess the question that I have for the two
Speaker 4: of you is, I mean, what do you think of
Speaker 4: lowber Bright itself as a judicial opinion? I know you're
Speaker 4: follow it regardless, but what do you think was it right?
Speaker 3: Was it wrong?
Speaker 4: What do you think of the Court's analysis in the
Speaker 4: case itself?
Speaker 6: I mean, I think lowper Bright was a great decision,
Speaker 6: maybe no surprise to me. Lower Bright was maybe less
Speaker 6: of a c change than some people made it out
Speaker 6: to be. I mean, I think Loper Bright sort of
Speaker 6: described what the court was. The Court hadn't applied Chevron
Speaker 6: in some whatever eight or ten years before it decided Loperbright,
Speaker 6: and frankly, in my work, I didn't. I'm not sure
Speaker 6: if I've ever cited Chevron in any of my cases.
Speaker 6: And it seems to me that Loper Bright describes the
Speaker 6: way that we should be looking at agency action, which
Speaker 6: is there's first a question of you know, there's a
Speaker 6: question like does the statute allow the agency to do
Speaker 6: what it did right? And what's the best meaning of
Speaker 6: the statute? Does it give the agency this authority? And
Speaker 6: maybe properly understood that was always how Chevron Step one
Speaker 6: was supposed to work. So to me, that that idea,
Speaker 6: and I think an idea that's repeated throughout Loperbright, which
Speaker 6: is that the judiciary is independent and it has an
Speaker 6: independent Article three obligation and responsibility to say what the
Speaker 6: law is. Means that you can't defer to the executive
Speaker 6: branch on legal interpretation. And that seems to me entirely
Speaker 6: correct and consistent with the text and structure of the Constitution.
Speaker 5: Yeah, I mean, in a way, you know, it's a
Speaker 5: pretty the modest decision. It didn't say it's unconstitutional for
Speaker 5: Congress to make delegations to agencies. It just said, Chevron
Speaker 5: relandimus presumption that whenever there's an ambiguity in a statute
Speaker 5: that itself is a delegation, that Congress wouldn't have wanted
Speaker 5: the ambiguity resolved by the agency. And that's just an
Speaker 5: unjustified presumption. Right, So the Congress said, and the APA
Speaker 5: the course decide questions of law. That is a question
Speaker 5: of law, and so the default rule is maybe Congress
Speaker 5: should decide that question. I mean, the way I had
Speaker 5: always thought about chev Run difference is that there's sort
Speaker 5: of two basic kinds of cases. There's one case where
Speaker 5: Congress uses a word like reasonable, like tells the agency
Speaker 5: put the transmitters a reasonable distance from each other.
Speaker 3: And then when somebody comes in.
Speaker 5: And says, well, the agency is acting unlawfully because they
Speaker 5: put them fifteen feet apart instead of twenty feet apart,
Speaker 5: you know, is that right? And the truth is you
Speaker 5: don't really need a special doctrine for that, because what
Speaker 5: the agency is doing, it's not interpreting the word reasonable
Speaker 5: to mean fifteen feet or twenty feet. It's just acting
Speaker 5: within a kind of range of implementation authority that Congress
Speaker 5: has left unspecified. So the person should fail set claim
Speaker 5: if this action doesn't dictate that it's fifteen rather than
Speaker 5: twenty feet, and so there wasn't really a need for
Speaker 5: it in that case. Then there's another kind of case
Speaker 5: where everybody agrees that Congress has spoken to the issue,
Speaker 5: like there's some kind of specific text on point, and
Speaker 5: you think that Congress had an answer in mind, but
Speaker 5: people are disputing have best to interpret it. And in
Speaker 5: that kind of case, there's no reason to think that
Speaker 5: Congress would have wanted the agency to decide like they
Speaker 5: weren't leaving something unspecified. They had in mind some kind
Speaker 5: of an answer and so that's the kind of case
Speaker 5: that courts should address. And I kind of think Lilber
Speaker 5: Bright says in that kind of case, there's no reason
Speaker 5: to think that there's a delegation to the agency. The
Speaker 5: presumption is that Congress would have wanted the courts to
Speaker 5: decide that question and to enforce whatever the answer was
Speaker 5: that Congress wanted. And then the other kind of case,
Speaker 5: where it's open textured or there's an express delegation of
Speaker 5: the agency to define a term or something, that's just
Speaker 5: what the statute means, and you can enforce it by,
Speaker 5: you know, making sure that the agency is acting within
Speaker 5: the bounds of its discretion. But it's sort of misleading
Speaker 5: to even think about that as a delegation of interpretive
Speaker 5: authority when it is something like implementation, right, So I
Speaker 5: think it also clarifies that.
Speaker 4: So you're both pro Lope or Bright, we know that's
Speaker 4: not true for all administrative last collars, and certainly for
Speaker 4: all judges.
Speaker 3: One of the things that.
Speaker 4: I used to use back when I would write articles
Speaker 4: about Chevron, which I don't write anymore, was there was
Speaker 4: an article in twenty eighteen by Judge Posner and Abby
Speaker 4: Gluck where they did a survey of federal appellate judges
Speaker 4: around the country, and they ask them a whole bunch
Speaker 4: of things.
Speaker 3: But one of the things that.
Speaker 4: They found was a difference between DC Circuit judges and
Speaker 4: others about Chevron.
Speaker 3: And this is a quote. All but one of the d.
Speaker 4: C Circuit judges we interviewed, who are of different generations
Speaker 4: and political parties, were admirers of Chevron difference, whereas most
Speaker 4: other judges from the other courts of appeals were decidedly
Speaker 4: anti Chevron. And the judges expressing skepticism regarding Chevron divide
Speaker 4: equally among liberals and conservatives. So according to them, the
Speaker 4: difference isn't liberal versus conservative, it is d C Circuit
Speaker 4: versus everybody else. So I'm just curious like reactions to this,
Speaker 4: as we have d C Circuit and everybody else.
Speaker 3: So what do we think here? Why don't we start
Speaker 3: with the DC Circuit.
Speaker 6: You know, everybody always gigs up on the d C Circuit.
Speaker 6: You know it's slowely, but you know, I'll give you
Speaker 6: an anecdote. So after Locerbride, there were a number of
Speaker 6: a number of cases that where the Supreme Court granted
Speaker 6: cert vacated the decision and remanded for reconsideration, because you know,
Speaker 6: the panel had relied on Chevron. And I was talking
Speaker 6: to some of my colleagues and they were complaining that
Speaker 6: they had so many gvrs after Low for Bright because
Speaker 6: they rely on Chevron a great deal. And I was like, oh,
Speaker 6: I have zero gvrs from lower right, which I thought
Speaker 6: was just kind of funny, and they were they were
Speaker 6: not amused by that. I thought, I thought it was
Speaker 6: I thought it was funny. So I do think on
Speaker 6: the d C circuit, many of my colleagues were faithful
Speaker 6: adherence to the Chevron framework and frequently applied it in
Speaker 6: constitutional law cases and not just in statutory cases, not
Speaker 6: just deciding it's step one, but you know, leaving interpretive
Speaker 6: authority to the agency, you know, after finding ambiguity. And
Speaker 6: and I'll be honest, I think we are also seeing
Speaker 6: in some cases some quite a bit of Low for
Speaker 6: Bright avoidance, because there are areas in which there's so
Speaker 6: many areas, at least in our d C circuit case law,
Speaker 6: where there's deference given to agencies on safe contract interpretation
Speaker 6: or super duper difference for science, or some other kind
Speaker 6: of difference. And I think many of my colleagues believe
Speaker 6: that all those forms of difference persist even after lower Bright,
Speaker 6: a proposition that I don't agree with.
Speaker 5: So because you didn't think it was there from the beginning,
Speaker 5: or right, I.
Speaker 6: Mean, you know, I mean, if Loper Bright says you
Speaker 6: need to say what the law is, I'm not sure
Speaker 6: how contract interpretation is a matter that we would defer
Speaker 6: to an agency on right, right, I mean that's a
Speaker 6: legal question, or or some of these science questions.
Speaker 5: In fact, lober Bright says the presence of an agency
Speaker 5: in the case doesn't change the statue interpretation.
Speaker 6: Exactly exactly, And I think I think some of my colleagues,
Speaker 6: may you know, may push against that, or or read
Speaker 6: some loopholes into Loperbright.
Speaker 5: Perhaps, So I don't just say, answer the question from
Speaker 5: the perspective of other circuits.
Speaker 3: I guess I don't disagree with the.
Speaker 5: General idea that it's not obvious that hivun difference has
Speaker 5: to have a particular political valance. So in my court,
Speaker 5: probably the most frequent challenges to agency action are immigration
Speaker 5: and social security cases, and in those, in that context,
Speaker 5: deferring to the agency means denying immigration really for denying
Speaker 5: those scurity benefits, which you know is a kind of
Speaker 5: right coded thing to do, I suppose, so you might
Speaker 5: think that maybe, you know, conservatives would like deference and
Speaker 5: liberals wouldn't if you're kind of result oriented about it.
Speaker 5: And of course the origin of Chevron defference, of course was,
Speaker 5: you know, just as Scalia very worried about judges not
Speaker 5: letting the Rege administration follow to deregulatory policies or their policies.
Speaker 3: So it's not obviously there is a political valance.
Speaker 5: I do think that in a kind of polarized time,
Speaker 5: it does sort of seem like it has mapped on
Speaker 5: to certain inclinations, and probably overall it does have a
Speaker 5: kind of pro regulatory box run difference would have a
Speaker 5: pro regulatory bias to it, because regardless of the administration,
Speaker 5: agencies are always making claims for their own authority. They
Speaker 5: tend to make So I'm kind of skeptical that it
Speaker 5: really doesn't have a valance and Rea, but I agree
Speaker 5: that it's not.
Speaker 3: It's not inherent that it would need to.
Speaker 4: Do you think the pos nerve luck then they did
Speaker 4: twenty eighteen, things have changed since then, or do they
Speaker 4: just not get it right?
Speaker 3: Or I mean it's a small sample size, so like,
Speaker 3: I don't know.
Speaker 5: I mean it could be totally right, but I don't
Speaker 5: know if it really is dispositive about it.
Speaker 6: I mean, I think, as you suggested, right, believing in
Speaker 6: Chevron means giving a lot of leeway to agencies, which is,
Speaker 6: and it depends on what the agencies are doing. If
Speaker 6: they're doing deregulation and you give them difference, then that's
Speaker 6: a deregulatory bias. But if you you know, if they're
Speaker 6: doing something that's pro regulatory, and you differ, then so
Speaker 6: I think it I don't think it's easy to say
Speaker 6: like one way or the other that it has a
Speaker 6: has a particular balance.
Speaker 3: All right.
Speaker 4: So one thing that you talked about is like science,
Speaker 4: and in the local Bright Assent, Jess Kaigan of course
Speaker 4: went to that a lot, which is you get really
Speaker 4: complicated science questions. And I remember clerking on the DC
Speaker 4: Circuit back back when Judge Jamnash and I were clerks together,
Speaker 4: is you would get these furk cases that were so
Speaker 4: complicated just try.
Speaker 3: To figure it out.
Speaker 4: I remember one where Judge Intel had to like put
Speaker 4: the math equation into the opinion because it's so complicated
Speaker 4: to be able to actually do it. And like Judge Williams,
Speaker 4: he loved all of those, but for the rest of us,
Speaker 4: like it was, it was very, very hard to even
Speaker 4: figure out what is happening in the case, let alone
Speaker 4: the legal scheme of how all this is supposed to
Speaker 4: fit together.
Speaker 3: So what do you do with something like that?
Speaker 4: Whereas like this is very very complicated, Is there a
Speaker 4: soft deference to the agency for really complicated things or
Speaker 4: how do you do that?
Speaker 2: No?
Speaker 6: Okay, I mean, you know, so Firk isn't so complicated
Speaker 6: that judges can't figure out what's happening. Right, It's our
Speaker 6: job and we can figure out what's what's going on
Speaker 6: in the case. And so even if there's a lot
Speaker 6: of science, we don't differ on the law, we still
Speaker 6: have to figure out to have the authority to do
Speaker 6: what it did right, what was the legal basis for
Speaker 6: its action? I didn't follow the law? And sometimes even
Speaker 6: answering that question does require getting into some of the
Speaker 6: you know, what did they actually do? Because you have
Speaker 6: to understand what actually is going on with the pipeline
Speaker 6: or whatever it is.
Speaker 4: The energy is even harder than pipelines.
Speaker 6: Yeah, right, it's true. Yeah, No, it's complicated. I mean
Speaker 6: I've had my share for cases, but I don't think
Speaker 6: that's a reason for difference. And agency lawyers still come
Speaker 6: before the d C Circuit and sort of say, well,
Speaker 6: this is very complicated. Well, I think we can understand
Speaker 6: what's happening here. It's not complete rocket science and so so, No,
Speaker 6: I don't think. I think the question is still like
Speaker 6: do they have the statutory authority? And then if they do,
Speaker 6: whether they've acted in a manner that's reasonable. Then maybe
Speaker 6: you defer on the actual scientific judgments that are within
Speaker 6: their authority, But the question of their authority doesn't change
Speaker 6: just because the case is complated.
Speaker 3: Yeah, even as you pose the question, they're two different questions.
Speaker 5: You said, well, they're putting forth all of the science
Speaker 5: and that seems complicated, let alone the statutory interpretation question. Yeah,
Speaker 5: but those are two different questions, right, So the idea
Speaker 5: that there's some science thing going on doesn't mean that
Speaker 5: the statutory interpretation question is something on which the agency
Speaker 5: has a kind of superior has a kind of sphere expertise.
Speaker 5: So those just kind of seem like two different questions.
Speaker 5: I kind of don't really understand this concern. Like, we
Speaker 5: have a system of generalist judges, and we do that
Speaker 5: for a good reason, which is, you know, we tend
Speaker 5: to think if you can't explain you know, how the
Speaker 5: laws your work to journalists judges, then maybe it's a problem.
Speaker 5: And so we don't have a system where we have
Speaker 5: very specialized, specialized courts for every topic, and so a
Speaker 5: lot of cases that come to us are pretty complicated.
Speaker 5: If there's some kind of like corporate contract involving trade
Speaker 5: secrets or whatever, it might be pretty complicated. It's not
Speaker 5: obvious to me that when we have to decide whether,
Speaker 5: you know, a search was reasonable, that the officers who
Speaker 5: have a kind of expertise about tracking down uh, you know,
Speaker 5: criminal networks, that that kind of expertise shouldn't require more
Speaker 5: difference than you know, what the Education Department knows about
Speaker 5: how universities operated. It's not totally obvious that there's a
Speaker 5: different kind of expertise player that it would require.
Speaker 3: A kind of difference.
Speaker 5: But you do take into account the facts that they
Speaker 5: find and maybe you know what they say about the facts.
Speaker 3: Given their expertise.
Speaker 5: I think one interesting thing about lower bright is it
Speaker 5: allows you to have a kind of wider view of expertise,
Speaker 5: Like you can take the agency's expertise for what it is,
Speaker 5: expertise about how the agency operates or a kind of
Speaker 5: scientific area, but that doesn't mean that it gets a
Speaker 5: kind of dispositive weight in how a statute should be interpreted.
Speaker 5: And it might be that there's amicist for other kinds
Speaker 5: of experts to say, well, actually, you know, the agencies
Speaker 5: kind of captured by one viewpoint, but like there's more
Speaker 5: expertise to take into account, right, and that allows us
Speaker 5: to understand expertise for what it is and not.
Speaker 3: Sort of confuse it with the kind of legal authority.
Speaker 6: And oftentimes the expertise is you know, has a heavy
Speaker 6: layer of political interpretation of expertise, right, and that is
Speaker 6: you know, that's not science.
Speaker 5: Well, yeah, the original Chevron sort of says, well, agencies
Speaker 5: have expertise, agencies also have more political accountability whatever's going on.
Speaker 5: That's a reason not to interfere with them. But actually
Speaker 5: those two things are very different, right, So it might
Speaker 5: be that the expertise about how the industry works or
Speaker 5: how the particular question should be understood, you know, informs
Speaker 5: how you understand the statute in one way, if what
Speaker 5: you think is actually this is a kind of policy making,
Speaker 5: then maybe the authority, you know, the democratic accountability becomes
Speaker 5: just positive because they're the ones who just have a
Speaker 5: kind of policy making space in which.
Speaker 3: They could decide what the policy is.
Speaker 5: But so it allows for more precision in the way
Speaker 5: we apply the law, as opposed to just kind of
Speaker 5: throwing up our hands and saying we'll let the agency decide.
Speaker 2: All right.
Speaker 3: So I got a note, folks, if you have questions.
Speaker 4: For the judges, which I hope that you will, you
Speaker 4: could either email it to cs CSAs at GMU ADU
Speaker 4: or on the back of your program there's the QR code.
Speaker 4: We'll get to those audience questions in a second, but
Speaker 4: I'm going to be one a little bit provocative on
Speaker 4: this one, which is when I would think about Chevron before.
Speaker 4: I always thought the presumption was the wrong way that
Speaker 4: they said that if it's ambiguous, the agency is going
Speaker 4: to win. But I always said, this goes back to
Speaker 4: Judge Sutton would say it too. Most of these statutes
Speaker 4: and rags are backed by criminal penalties. So why doesn't
Speaker 4: the rule of lenity say that the default is the
Speaker 4: other direction that if there's ambiguities in these things, it
Speaker 4: cuts in favor of the public and non favor of
Speaker 4: the agency. And maybe that's just a crazy idea, but
Speaker 4: I'm curious what your thoughts are on that.
Speaker 3: Must you go that one first? You just say, Aaron,
Speaker 3: you're crazy.
Speaker 6: I mean, I don't think it's true that a lot
Speaker 6: of things are backed by criminal penalties. Actually, so I
Speaker 6: think that's not true. There's probably very few regulations their
Speaker 6: violation is backed by criminal penalties.
Speaker 3: Okay, right, I think you're not correct.
Speaker 4: That really okay, But but but.
Speaker 3: Okay, maybe look, look you're you're the d C circumgene.
Speaker 3: You do this all day.
Speaker 4: I don't know, I mean not sure.
Speaker 3: I mean I did the thing.
Speaker 5: You know that lover Bride is right that there's often
Speaker 5: the best reading of the statute, So you know, and
Speaker 5: even when we talk about the rule of lenity, we
Speaker 5: usually apply it in the case of grievous ambiguity that's
Speaker 5: irreducible after we do all the tools of satutory interpretation.
Speaker 3: So I do kind of think.
Speaker 5: We shouldn't look for another out to just deffer in
Speaker 5: the opposite direction. I think, you know, you throw all
Speaker 5: the tools you have at the statute and come up
Speaker 5: with the meaning of it. I suppose in cases where
Speaker 5: there's an irreducible ambiguity that's unavoidable, maybe if there's a
Speaker 5: criminal penalty that will let it be would apply. But
Speaker 5: that's just one of our tools of satory interpretation. I
Speaker 5: wouldn't say that we should reintroduce shiver run difference in
Speaker 5: the opposite direction, because kind of the point is, you know,
Speaker 5: we have a duty to decide what Congress meant.
Speaker 6: Also, I think that your question and raises a real
Speaker 6: non delegation problem, right, So if Congress has provided for
Speaker 6: criminal penalties, they should say what the crime is. Right.
Speaker 6: If they provide for criminal penalties and the agency is
Speaker 6: just by regulation criminalizing a whole range of things, then
Speaker 6: that perhaps poses a non delegation problem. And I don't
Speaker 6: think the rule of lenity can fix the non delegation problem, right,
Speaker 6: Maybe like they just can't regulate a whole new category
Speaker 6: of things that are subject to criminal penalties. If that's
Speaker 6: sort of the suggestion of what these rigs are doing.
Speaker 6: So I think to me there would be I guess
Speaker 6: a bigger threshold problem with that sort of regulation.
Speaker 4: All right, So one of the other arguments that used
Speaker 4: to be made in favor of Chevron was that it
Speaker 4: would reduce forum shopping. If every judge is applying the
Speaker 4: same methodology, and with a particular to the extent that
Speaker 4: judges disagree on methodology with a thumb on the scale
Speaker 4: in favor of one side or the other, then the
Speaker 4: circuits are not going to disagree as much. So, Peter Strauss,
Speaker 4: the court only has capacity for one hundred and fifty
Speaker 4: cases a year, so you need something to deal with
Speaker 4: the large volume of cases. And now that we don't
Speaker 4: have Chevron, are we going to see forum shopping or
Speaker 4: is that something that a lot of professor would come
Speaker 4: up with.
Speaker 3: Is not the real world?
Speaker 6: Well, I can tell you being on the DC Circuit.
Speaker 6: When there is a Democrat administration, we're like out of business.
Speaker 6: You know, our caseload drops and everything goes to the
Speaker 6: Fifth Circuit. And when Donald Trump is in office, our
Speaker 6: case load goes way up. So maybe that's forum shopping.
Speaker 6: I don't know, but it's it's noticeable, okay. So, and
Speaker 6: I think that was happening before. And I'm not sure,
Speaker 6: you know, I haven't done any impirical work, but you know,
Speaker 6: I mean, Chevron wasn't exactly you know, it wasn't like
Speaker 6: every judge applying Chevron would reach the same outcome, just
Speaker 6: as every judge applying Loper Bright and looking for the
Speaker 6: best meaning is not going to reach the same outcome.
Speaker 6: So I'm not sure that it will make any difference
Speaker 6: in terms of predictability. To be honest, yeah, I.
Speaker 5: Have the same reaction, which is, even in a world
Speaker 5: with Chevron difference, if there was a Republican administration, you'd
Speaker 5: bring your.
Speaker 3: Case of the Ninth Circuit or maybe the DC Circuit.
Speaker 5: If it's a Democrat administration, you're going to go to
Speaker 5: the Fifth Circuit if you're telling me that after Low
Speaker 5: or Bright, even if you're challenging policy of a Republican administration,
Speaker 5: you're going to say to yourself, you know, the Fifth
Speaker 5: Circuit has a lot of really good case law on
Speaker 5: adhering strictly to the text.
Speaker 3: So I think my challenge is better in the Fifth Circuit.
Speaker 3: That's great.
Speaker 5: That sort of means like now people are making decisions
Speaker 5: about the right forum based on interpretive methodology, and that's
Speaker 5: better than just kind of ideological inclination. And so I
Speaker 5: think that that would be a welcome development if it happened,
Speaker 5: although I think I'm kind of skeptical that that's what
Speaker 5: we're going to see.
Speaker 4: I will say as Texas solicitor General, we were we
Speaker 4: had one hundred cases the State of Texas file against
Speaker 4: the Biden administration, which meant there's a lot of appeals
Speaker 4: at the end of that. And as soon as the
Speaker 4: election happened, it's like the Department of Justice just turned off.
Speaker 4: So we had all these cases that we were litigating,
Speaker 4: and suddenly as soon as the election happened, Like I Mike,
Speaker 4: I hope they're still prosecuting people because all of the
Speaker 4: agency defense just stopped and it just froze, which in
Speaker 4: a way that markedly changed life of me and my
Speaker 4: team because it just stopped, which I thought wasn't interesting.
Speaker 6: Did you ever bring any cases in the d C
Speaker 6: circuit where a case could have been brought either you know,
Speaker 6: in the district court in Texas or in d d C.
Speaker 3: That's privileged.
Speaker 6: Well, I mean whether you brought the that's a matter
Speaker 6: of public record.
Speaker 4: Whether we brought the case. Yeah, there's there's a lot
Speaker 4: of times there are cases, but usually these cases are
Speaker 4: my statute. There's the d c circuits certain types of cases.
Speaker 4: So I don't ask to the question when if you
Speaker 4: have to make a choice or not, I will let
Speaker 4: the I will leave that for others to answer that question.
Speaker 6: It's a matter of public record.
Speaker 4: Yeah, well, all right, okay, see I'm not supposed to
Speaker 4: be part of this conversation. All right, okay, So do
Speaker 4: you expect and I think I know the answer is
Speaker 4: going to be a bob the curious. Do you expect
Speaker 4: agency rulemaking to slow down in light of reduce judicial difference?
Speaker 4: In other words, or agencies more aggressive and do more
Speaker 4: things because of Chevron and now they'll stop doing that
Speaker 4: after a lower Bright Or will they just keep generating
Speaker 4: about the same amount of work but just do it differently.
Speaker 3: I wouldn't think that a lot of it would change.
Speaker 5: I mean, I kind of get what you're saying, which
Speaker 5: is maybe if there is a Chevron difference, agencies are
Speaker 5: going to think that their rules are more vulnerable to
Speaker 5: challenge and do it less. But you know, sluper Bright
Speaker 5: is not an isolated case. I mean the sort of
Speaker 5: the larger vibes of it and surrounding it are less
Speaker 5: difference to agencies, less exploitation of loopholes, and so if
Speaker 5: an agency thinks, oh, after Loper Bright, I won't do
Speaker 5: a rulemaking I'll just issue a guidance document. There are
Speaker 5: all other cases and doctrines that are designed to not
Speaker 5: allow them to do that.
Speaker 3: So I would think in.
Speaker 5: An environment in which the court is more willing to
Speaker 5: scrutinize agency reasoning and less inclined simply to defer to them,
Speaker 5: the agency would actually prefer to have their interpretation laid
Speaker 5: out in detail in a kind of legally binding way.
Speaker 5: So I would think in that environment you might seem
Speaker 5: more rulemaking. If it makes a difference at all, I'm
Speaker 5: not sure.
Speaker 6: I mean I do think that agencies will have to
Speaker 6: be more careful. And when I ran a WIRA, agencies
Speaker 6: would often say I'd say, well, what's your authority for this?
Speaker 6: And I'd say, well, we've been doing this for decades
Speaker 6: and say, well, then surely you have some statutory authority.
Speaker 6: And then like several weeks would go by and they'd say, look,
Speaker 6: get provision one oh one. The secretary can make rules,
Speaker 6: so that's not authority to do whatever you're doing. So
Speaker 6: I think they're going to have to be a little
Speaker 6: more particular and where's the authority and then set it
Speaker 6: out in the rules, and whether that will change the
Speaker 6: volume of rule making, I think it's hard to say.
Speaker 2: So.
Speaker 5: Yeah, so I was a lawyer one of those agencies
Speaker 5: that sent rules to Naomi, so I sort of know
Speaker 5: of that process.
Speaker 6: We weren't notting anyone do any role, So that was
Speaker 6: the main thing.
Speaker 3: Yeah, and that's true.
Speaker 5: You have to sort of be more rigorous about it,
Speaker 5: but the guidance documents that you send that are less
Speaker 5: rigorous about it. And so it sort of seems to
Speaker 5: me that an environment in which you have to show
Speaker 5: your work a lot more and be more persuasive, it
Speaker 5: would tend to you tend to incline toward.
Speaker 3: More formal or formal procedures where you could lay it out.
Speaker 3: So I have not run a study on this.
Speaker 4: This is just anecdotal, but we had a lot of cases,
Speaker 4: so it's not based on nothing either. What happened after
Speaker 4: lopel Bright was government agencies government lawyers started saying that
Speaker 4: everything was an express delegation of authority. So before Chevron
Speaker 4: it was an implicit delegation of authority. And lober Wright says, no,
Speaker 4: we're not doing that. Anymore, but there could still be
Speaker 4: express delegations of authority, and then suddenly everything became an
Speaker 4: express delegation of authority. At least that's the cases that
Speaker 4: I saw. Have you seen something similar to that or
Speaker 4: do you think that was just maybe a blurb or
Speaker 4: maybe a Fifth Circuit's.
Speaker 3: Kind of specific thing.
Speaker 6: Well, I do see a number of parties trying to
Speaker 6: get within what they consider kind of the local right
Speaker 6: exceptions right, which is like, oh, this is expertise or
Speaker 6: this is an express delegation. So I do see those
Speaker 6: kinds of arguments being made in the briefs after lober Bright,
Speaker 6: And I mean, I guess that makes sense. But I
Speaker 6: think it's important to remember too that in Low for Bright,
Speaker 6: the Chief Justice repeatedly says, you know that the delegations
Speaker 6: have to be within constitutional limits, which to me very
Speaker 6: much foreshadows, you know, interest in the non delegation doctrine, which,
Speaker 6: of course, maybe to me everything looks like it's part
Speaker 6: of the non delegation doctrine because it's something I believe in.
Speaker 6: But he says that multiple times in the opinion that
Speaker 6: the delegations have to be within constitutional limits. So if
Speaker 6: an agency is saying we have, you know, explicitly delegated
Speaker 6: some completely open ended authority. Well, maybe that's going to
Speaker 6: run into a non delegation challenge down the road. Yeah.
Speaker 5: I don't know if I get enough of these cases
Speaker 5: to say that I've noticed a pattern from the briefs
Speaker 5: or whatever, but it does kind of seem to me
Speaker 5: that you can make that argument, but it's oftentimes not
Speaker 5: going to be persuasive. Like there are cases where Congress
Speaker 5: uses open textured language like reasonable, as I was saying before,
Speaker 5: in which case they just have a zone in which
Speaker 5: the agency gets the little bit the statute. There are
Speaker 5: cases where, you know, the statute might say here's a
Speaker 5: term that we want the agency to elaborate, like what's
Speaker 5: an unfair labor practice or something, and that really is
Speaker 5: a delegation. It's possible that some of those could be implicit,
Speaker 5: but you really have to make the case that that's
Speaker 5: really what Congress wanted, because we're not going to presume
Speaker 5: that it is. And so I expect that will be
Speaker 5: worked out.
Speaker 3: I don't know.
Speaker 5: I guess there might be circuits or particular panels that
Speaker 5: are more willing to just reintroduce shiverrun difference by saying I.
Speaker 3: Just think that there's a bunch ability to authority here.
Speaker 5: But I kind of expect the Supreme Court would take
Speaker 5: a couple of those egregious cases and sort of say, no,
Speaker 5: we really mean that you have to look for the
Speaker 5: delegation before you, before you just to fall to the
Speaker 5: agency position.
Speaker 3: All right.
Speaker 4: So we have some questions from the audience which I
Speaker 4: would like to get to. So the first is for
Speaker 4: Judge Row. As courts fill out the Loper Bright doctrine,
Speaker 4: would it be helpful for courts if linagaanst did more
Speaker 4: work to help concorts understand technical and scientific terms and
Speaker 4: statutes as experts understand those terms. In other words, as
Speaker 4: the I guess I'm putting my splent on this. Has
Speaker 4: the briefing changed or should it change in the post
Speaker 4: Looper Bright world where some of that technical information is
Speaker 4: better conveyed to the court.
Speaker 6: I don't think it's any different than it was before.
Speaker 6: But I can say we certainly appreciate when briefs include
Speaker 6: that kind of technical information. I oftentimes people who appear
Speaker 6: before us are experts in their fields, and they don't
Speaker 6: realize that we are generalist judges. And even if We've
Speaker 6: had fifty Furt cases. This furcase might be something new,
Speaker 6: and I think briefs that really explain the underlying you know,
Speaker 6: science or technology or how something works is extremely helpful
Speaker 6: because I often have to spend a lot of time
Speaker 6: in chambers figuring out how something works. So I can
Speaker 6: understand how the law layers on to how the thing works.
Speaker 6: And so if the you know, really good briefing will
Speaker 6: make that job a lot easier for the judges. So
Speaker 6: I think pre or post slower Bride, I think.
Speaker 4: That's true, all right, So this is for both the
Speaker 4: both of you, in Low or Bright. The court said
Speaker 4: that previously said that previously upheld interpretations based on Chevron
Speaker 4: should not be subject to challenge simply because Chevron is
Speaker 4: now overruled. What do you think that assurance will mean
Speaker 4: in practice going forward?
Speaker 3: Well, I mean this real Quart says that if we
Speaker 3: have upheld an agency action as lawful under Chevron, like
Speaker 3: that precedent survives, and I think that's true, then the
Speaker 3: status quo would be that that agency action is lawful.
Speaker 3: But there are lots of.
Speaker 5: Cases where we've previously reached some kind of result and
Speaker 5: then somebody later comes up with a new kind of
Speaker 5: argument that hasn't been considered before, and maybe is a
Speaker 5: way to challenge that kind of thing.
Speaker 3: And I don't know, I guess I sort of see
Speaker 3: this that way.
Speaker 5: So like the status quo is that those are precedents
Speaker 5: out of which the parties can rely. But eventually you
Speaker 5: might get a case that says, well, look, you upheld
Speaker 5: that under difference under Chevron difference, but really there's a
Speaker 5: better reading of the statue that comes up in a
Speaker 5: kind of later case, and so you might revise it.
Speaker 3: And that's not abnormal.
Speaker 5: You know, in cases where there's sort of developments at
Speaker 5: the screen court or factual developments or other arguments that
Speaker 5: and then raised before. It just doesn't seem like it's
Speaker 5: a it's an unmanageable problem to me.
Speaker 6: I understand the Supreme Court to be saying, you know,
Speaker 6: you're not going to go back and overturn specific precedents
Speaker 6: about specific rules. But for instance, if there was a
Speaker 6: Rule A that was upheld under Chevron, and then Rule
Speaker 6: B comes along in a similar area, but it's a
Speaker 6: new rule and someone raises a challenge to the agency's
Speaker 6: legal authority, I don't think that would be I don't
Speaker 6: think we could, you know, I don't think it's sort
Speaker 6: of like if you know something was upheld under Chevron,
Speaker 6: now we will never look at the statutory basis for
Speaker 6: a similar rule. I think the new rules are all
Speaker 6: fair game under lower Bright.
Speaker 5: Well that's got to be true, right, because even under
Speaker 5: Chevron that would happen. The agency changed its position, right,
Speaker 5: and then somebody would challenge it, and you decide whether
Speaker 5: that met the Chevron test, And so they just consider
Speaker 5: that under the regular But if the.
Speaker 6: Rule was similar enough under Chevron, you know, there'd be
Speaker 6: a maybe it would be a holding that there was
Speaker 6: an ambiguity that you know, the agency could fill in.
Speaker 4: Okay, Since Loper Bright said courts should use their best
Speaker 4: judgment in interpreting statutes, why should course continue to apply
Speaker 4: the major questions doctrine? Then that spicy?
Speaker 3: All right? So actually I find this.
Speaker 5: Kind of interesting the Major Questions doctrine and Loper Bright,
Speaker 5: because before lower Bright, the main function of the Major
Speaker 5: Questions doctrine was to get out of Chevron deference. Right,
Speaker 5: A lot of the the idea that like this is
Speaker 5: a major question, you know, the conclusion is, and so
Speaker 5: therefore Congress would have wanted to provide the answer and
Speaker 5: not delegated it to the agency.
Speaker 3: That was kind of the idea.
Speaker 5: And so in a lot of the cases, the main
Speaker 5: purpose of it, or the main function of it was
Speaker 5: to say, we're not going to defer to the agency,
Speaker 5: like you know, like Chief Justice Roberts says in the
Speaker 5: Obamacare that King versus Burwell, Like, wouldn't it be crazy
Speaker 5: to think that the Congress would have wanted the irs
Speaker 5: to decide how the Healthcare for FORMA should work. No,
Speaker 5: they wouldn't have wanted that, right, And that was kind
Speaker 5: of the function. So now after lower Bright, everything is
Speaker 5: a major question in that sense, right, we don't just
Speaker 5: let the agency decide, And so that sort of brings
Speaker 5: to the for other possible bases or functions of the
Speaker 5: major Questions doctrine. So, like there's this dispute as to
Speaker 5: whether it is the linguistic canon that just sort of
Speaker 5: stands for the principle that Congress doesn't hide elephants in mouseholes,
Speaker 5: and then if you have general language, there isn't going
Speaker 5: to be a big power hidden in there. And then
Speaker 5: the I guess that's the Barren view. And then there's
Speaker 5: the Gorst view, which is that it is sort of
Speaker 5: substantive way of enforcing non delegation principles by requiring Congress
Speaker 5: to use a clear statement when you know, when delegating
Speaker 5: a major authority. I don't know if the difference between
Speaker 5: them in terms of what it does makes much of
Speaker 5: a difference if the payoff is whether it's linguistic or substantive.
Speaker 5: Congress just has to be express when it wants to
Speaker 5: authorize a major power. But since now the sort of
Speaker 5: what I regard as the previously primary function of the
Speaker 5: Major Questions doctum, which is to get out of chevrun difference,
Speaker 5: is no longer relevant, I guess we might see some
Speaker 5: development of you know, right, you can imagine the major
Speaker 5: Questions doctrine not playing a big role if you think
Speaker 5: that all it was was to get to the best
Speaker 5: reading of the text. But you can think of it
Speaker 5: as playing a more major role if you have decided
Speaker 5: that actually it's a way of enforcing the non delegation doctrine,
Speaker 5: which is the next step after getting rid they've shared
Speaker 5: on it.
Speaker 6: Yeah, I'm not sure I necessarily see a you know,
Speaker 6: conflict between low for Bride and the Major Questions doctrine anymore.
Speaker 6: Than with other, you know, linguistic or possibly substantive canons,
Speaker 6: depending on how you think about it. I mean, if
Speaker 6: we're trying to find the best meaning of the role,
Speaker 6: major questions doctrine can still provide the type of context
Speaker 6: and background norms you know that other linguistic canons do.
Speaker 6: And and if it's enforcing a kind of a substantive
Speaker 6: norm of non delegation or ensuring that we're not reading
Speaker 6: delegations in a way that raise constitutional problems, then I
Speaker 6: think that also goes perhaps to the best meaning of
Speaker 6: the statutes. So I'm not sure that it really, you know,
Speaker 6: necessarily will make a big difference.
Speaker 3: Yeah, one of the well, as we were saying before,
Speaker 3: you know, you exhaust all.
Speaker 5: The tools of satutary interpretation, like the linguistic and substance
Speaker 5: canons are part of those tools. And so if the
Speaker 5: major questions doctrine is well founded, then it is just
Speaker 5: part of what the law means.
Speaker 2: That's right.
Speaker 3: It's some intentionalists are worried about substantive canons.
Speaker 5: I think Naomi and I both expressed of you that
Speaker 5: actually background legal principles are pretty relevant and and maybe
Speaker 5: we don't see that we're not that type of person
Speaker 5: who thinks that it's a problem. But if it's a
Speaker 5: linguistic canon, then obviously that's just a stands for the
Speaker 5: principle that that's how you should understand the statute. Like
Speaker 5: if you have if Congress says the agency is empowered
Speaker 5: to do A, B and C, and then there's like
Speaker 5: a catch all thing that says or anything else to
Speaker 5: accomplish some result. If the agency reads into the catch
Speaker 5: all some authority that's broader than the enubrated ones, you'd
Speaker 5: expect it to be enuberated. You might just say, and
Speaker 5: I think that this is right, that the best reading
Speaker 5: of the text is that that catchual can't authorize something
Speaker 5: that's you would have expected to be enumerted. And so
Speaker 5: then it's just about getting at the right meaning of
Speaker 5: the statute. And then the major questions doctor under that
Speaker 5: view is just stands for the principle that's the way
Speaker 5: you should read texts.
Speaker 6: I mean, oftentimes canons, whether they're linguistic or substantive, are
Speaker 6: ways for judges to explain, right. They're just ways to
Speaker 6: explain how a judge is getting at the best meaning
Speaker 6: of a text. And I think if you think about it,
Speaker 6: that way, then you know, nothing is really off the table.
Speaker 3: We get to use it.
Speaker 5: We get to say express you unius as a way
Speaker 5: to explain how we're reading a text.
Speaker 3: But we could just explain what that means, right, And.
Speaker 6: So you like, how do we you know, what does
Speaker 6: an ordinary reader of English or a legal reader of
Speaker 6: English think about these terms and how they fit together?
Speaker 6: You know, we have a shorthands and I don't think
Speaker 6: that changes after a little propriate all.
Speaker 4: Right, So Jed Dray you have you say you can't
Speaker 4: recall ever citing Chevron, and maybe I have.
Speaker 6: I can't recall someone's probably like just doing a.
Speaker 4: West Saucer or something. But the question they want to
Speaker 4: know is have either of you ever cited local Bright
Speaker 4: in an opinion?
Speaker 6: Yeah?
Speaker 3: Sure I have, Yeah, Okay, yeah, for for what purpose?
Speaker 4: It's like like just a general statement that we just
Speaker 4: decided what the law is, or is there any is
Speaker 4: there any particular part of lope for Bright that you
Speaker 4: find yourself most likely to side because it comes up
Speaker 4: in the work that you do.
Speaker 5: I guess also, So I mean I said earlier that
Speaker 5: a lot that most of the challenges to agency action
Speaker 5: that come up in my court are immigration and so
Speaker 5: security cases. So I did have a case this past
Speaker 5: term that presented the question of whether some old precedent
Speaker 5: that was adopted before the real id Act survived the
Speaker 5: real id.
Speaker 3: Act, and we said that it did not.
Speaker 5: And then there was sort of a hierarchy of why,
Speaker 5: like it conflicts with the text of the real Ideact,
Speaker 5: other circuits have adopted the same conclusion.
Speaker 3: And then I.
Speaker 5: Also said, the BIA has the BIA, which is the
Speaker 5: Board of Immigration Appeals, which is the agency, has also
Speaker 5: adopted that same illusion. Now, maybe in an era of
Speaker 5: Chevron difference, that might have been higher up in the hierarchy,
Speaker 5: and I would have said we were bound to defer
Speaker 5: to their view of it. But I guess it came third.
Speaker 5: I don't remember the list of reasons, but I said, well,
Speaker 5: that's important because you know, an agency that has expertise
Speaker 5: in administering a statute, you know, we should pay attention
Speaker 5: to what they say. And so I guess I cited
Speaker 5: lower Bride for that proposition. But of course it came after,
Speaker 5: you know, talking about the text of the statute and
Speaker 5: so on. But you know that is some support, you know,
Speaker 5: for how you should understand a statute, if an agency
Speaker 5: that is familiar with administering it and adjudicating it thinks
Speaker 5: that it had it requires a particular result, all right.
Speaker 4: So we talked a little bit about some of the
Speaker 4: lower Bright carve outes where deference might still be allowed
Speaker 4: even though Chevron's presumption has gone. So here's a question,
Speaker 4: what are the indicators you look for as a judge
Speaker 4: in determining whether Congress has left such.
Speaker 3: A gap for an agency to fill?
Speaker 4: Like, how do you know if it's say an express
Speaker 4: delegational what do they mean to be expressed? Or how
Speaker 4: do you know this is one of those things where
Speaker 4: Congress says even after Loper, even after Loper write, we
Speaker 4: still want you to defer.
Speaker 3: How would you tell I guess I have.
Speaker 6: Neither before Loper Bright nor now do I think about
Speaker 6: this as a matter of deference? Like to me, there's
Speaker 6: a question like is the agency operating within its statutory authority?
Speaker 6: And then if it is, then you know there might
Speaker 6: be other arguments that it was unreasonable or arbitrary and capricious,
Speaker 6: but those are kind of separate. So the is it
Speaker 6: inside the box the statutes box? And then you know
Speaker 6: within that space, like if there's certain you know, judgment
Speaker 6: calls that have been left to the agency, then that's
Speaker 6: that's fine because it's within their statutory authority. And so
Speaker 6: I don't know that that is necessarily deference. It's just
Speaker 6: sort of thinking about what is the agency allowed to
Speaker 6: do under law, and then I guess have they done
Speaker 6: that in a reasonable way? And that maybe that reasonability
Speaker 6: determination is one on which we you know, they have
Speaker 6: some leeway, but not complete leeway, you know, even unreasonable.
Speaker 3: Yeah, I think that's right.
Speaker 5: So, so, like I said earlier, if Congress provides some
Speaker 5: kind of open textured language that says, do what's reasonable,
Speaker 5: like they say, put the transmitters or reasonable distance between
Speaker 5: each other, and they put them fifteen feet apart and
Speaker 5: not twenty feet apart, and somebody challenges the determination. I
Speaker 5: don't think a court should write an opinion that says
Speaker 5: the best meaning of the word reasonable is fifteen.
Speaker 3: Rather than twenty feet.
Speaker 5: Right. The answer is, actually, the statute does not require
Speaker 5: them to do it twenty feet raven than fifteen feet.
Speaker 5: They took some action which is within the bounds of
Speaker 5: the statute, and so the challenger fails to say a claim. Right.
Speaker 5: So some people talk about the worry about ossification after
Speaker 5: lowber Bright, because you need to reach statutory holdings or
Speaker 5: interpretation holdings. But actually, if you understand that a lot
Speaker 5: of these questions are not really saturtary interpretation.
Speaker 3: Questions, then there's less ossification. I think.
Speaker 5: The other kind of case is the one where there's
Speaker 5: some kind of term that Congress says they want the
Speaker 5: agency to elaborate, like unfair labor practice or method of
Speaker 5: competition or something which maybe they're expressly authorized to play
Speaker 5: out through regulation or through a.
Speaker 3: Kind of adjudication.
Speaker 5: In most cases, Congress just says that expressly and again
Speaker 5: that's the agency's job is to have those kinds of adjudications,
Speaker 5: and we police the bounds of it, but don't say what.
Speaker 6: That those things might be on constitutional valegations.
Speaker 5: Well, that's a separate question. So I guess I'm confining
Speaker 5: myself to the lower Bright question. But yeah, it might
Speaker 5: be that there's some other reason why that's why that's impermissible.
Speaker 5: But in terms of the statue of interpretation question, when
Speaker 5: it's expressed, it's not hard to identify.
Speaker 3: It seems to me it's not very often going to
Speaker 3: be implicit.
Speaker 5: But you know, sometimes we do look at things that
Speaker 5: are implicit based on the structure of the statute overall.
Speaker 5: And so that's also not really a new challenge.
Speaker 4: All right, So before there was Chevron, there was skid more.
Speaker 4: Do we see Lope or bright as a return to
Speaker 4: a resurgence of pre Chevron standards like skid Moore or
Speaker 4: is just an entirely new way of evaluating agency action?
Speaker 4: This is a very DC ADMIN law. I was going
Speaker 4: to say, to explain to.
Speaker 6: The audience what skin Moore differences or No, not this audience.
Speaker 3: We're run out of time. Let's just keep going.
Speaker 4: So hope everyone here knows what skidmore is, and if not,
Speaker 4: then this question is for the one person who does.
Speaker 5: So. I guess I just I mean a Skidmore difference
Speaker 5: just says that you should adopt the agency's position to the.
Speaker 3: Extent that you find it persuasive and like fine, like
Speaker 3: you know.
Speaker 6: Okay, skinboard just doesn't do a lot of work.
Speaker 5: Yes, I don't think, I mean to the extent that it.
Speaker 5: It just tells you don't like, just completely dismiss and
Speaker 5: ignore what the agency says about its authority or about
Speaker 5: the underlying facts.
Speaker 3: I think that that's.
Speaker 5: A good instinct to have, like you should consider them
Speaker 5: serious arguments from the agency. And so to the extent
Speaker 5: that Skinboard stands for that proposition, that's fine, but it
Speaker 5: doesn't give it authoritative weight. As I said, I think
Speaker 5: one of the benefits of loop or bright is to say,
Speaker 5: the agency's expertise doesn't necessarily translate into automatic legal authority,
Speaker 5: and so you could draw on expertise from other sources. Right,
Speaker 5: there might be a debate within a particular industry about
Speaker 5: how to view a kind of technical question, and so
Speaker 5: you don't necessarily have to adopt the agency's view if
Speaker 5: you don't find it persuasive, And so I think that
Speaker 5: that is that is good. I mean, I guess in
Speaker 5: terms of your general question about skin Moore making a comeback,
Speaker 5: it is possible that you know of Court of Appeals
Speaker 5: that really liked Share Run Difference and wants it back.
Speaker 5: Could just do Shevrun Difference under the name skin Moore.
Speaker 5: Like that's not impossible, but it seems to me that
Speaker 5: that you can tail when it does that, and it
Speaker 5: does seem like it would be wrong and so eventually
Speaker 5: it would be rebuked.
Speaker 6: I mean, I think skidmore just recognizes what federal courts
Speaker 6: have always done, which is treat the political branches respectfully. Right,
Speaker 6: you know, you are respectful of Congress's judgments and the
Speaker 6: Executive's judgments. But I think Lope or Bright rightly says
Speaker 6: what has also been the case since our founding, which
Speaker 6: is that judges have an independent duty to say what
Speaker 6: the law is. So that doesn't preclude respectfully thinking about
Speaker 6: how the political branches understand their authorities. But it is.
Speaker 6: It's it's a far cry from being respectful to to
Speaker 6: you know, just deferring to their view of their authority.
Speaker 4: All right, this is not going to be a fair
Speaker 4: question for Judge Row because you were not here earlier.
Speaker 4: But here's the question. And an earlier panel argued that
Speaker 4: deregulator and should be panelists probably argue that deregulation activities
Speaker 4: should not be subject to the same procedures and justification
Speaker 4: as new regulations.
Speaker 3: Do you agree.
Speaker 4: You mean political like Owira, No, I think, well, I
Speaker 4: don't know what the question is, I said, But earlier
Speaker 4: James Burnham essentially said that the state Farm rule does
Speaker 4: not make any sense. Like heard, look is one thing,
Speaker 4: but hard look when you're trying to deregulate. It should
Speaker 4: not be the same as when you're trying to regulate,
Speaker 4: because you're taking away the burden rather than putting it on. That's,
Speaker 4: of course not like the law under state farm. So
Speaker 4: what do you think about that? You were here, Steve
Speaker 4: so you can ask answer the question.
Speaker 5: Yeah, well, I mean you can just explained the idea.
Speaker 5: So I don't know if I need to be here.
Speaker 5: I mean, I just explain their AWESO. Now you can
Speaker 5: answer the au There are I mean, there are agency
Speaker 5: regulations where it's not totally obvious that one that having
Speaker 5: it imposes a burden and getting rid of it relieves
Speaker 5: a burden.
Speaker 3: I mean, I guess if you had that kind of case,
Speaker 3: it should be.
Speaker 5: Pretty easy to do a repeal because you can just explain,
Speaker 5: we don't think that this is justified anymore.
Speaker 3: You know.
Speaker 5: I think James was sort of saying that in a
Speaker 5: bunch of circumstances, the agent under the APA, the agency
Speaker 5: would have good cause for removing the regulation. You know,
Speaker 5: I guess I'm going to preserve judgment on that to
Speaker 5: the extent that that might be a sort of question
Speaker 5: that might be litigated. But I do kind of think
Speaker 5: in the case you described, where the agency is believing
Speaker 5: the burden because it doesn't think imposing the burden is
Speaker 5: justified by its regulatory objectives any longer. It should be
Speaker 5: pretty easy to write a proposed rule that just says that,
Speaker 5: and then that would be an adequate explanation.
Speaker 6: I guess I would say that seems like a nice
Speaker 6: rule for private ordering. It obviously isn't the state of
Speaker 6: the law. But I mean, it's just very much not
Speaker 6: the state of the law. I mean, to undo a
Speaker 6: big rule, you have to do another big rule explaining
Speaker 6: why you're undoing the other big rule. And maybe we
Speaker 6: should have a different procedure, but but we don't.
Speaker 4: So when you are running AIRA, did you ever like
Speaker 4: just like a state farm, what was that privilege?
Speaker 6: There are lots of things that I shook my fids down,
Speaker 6: and I was when I was head of AHIRA. But
Speaker 6: it does seem you know, I mean, I remember talking
Speaker 6: to the President about this. It's like, well, to undo
Speaker 6: this rule, we have to do another rule. And sometimes
Speaker 6: that doesn't seem like it makes a lot of sense.
Speaker 6: But then courts would strike down, you know, kind of
Speaker 6: cursory rules that said we just don't think this old
Speaker 6: rule makes sense.
Speaker 4: So all right, so we're coming towards the end, so
Speaker 4: we probably have time for maybe one more big question,
Speaker 4: which so I'm going to not make it through all
Speaker 4: of these, But here's the question I'm just curious.
Speaker 3: I think will be a kind of a good way
Speaker 3: to wrap it up.
Speaker 4: Ten years from now, is Low or Bright going to
Speaker 4: be seen as a landmark decision that people are still
Speaker 4: talking about and it's like one of the things you
Speaker 4: could have a whole ballroom full of people thinking about.
Speaker 4: Or is it just going to be just one of
Speaker 4: those things we've just moved on? So what I think
Speaker 4: is what we right going to be a true hallmark
Speaker 4: landmark decision.
Speaker 3: Who wants to take it first? No, I don't think so.
Speaker 5: I mean I think, you know, when you think about
Speaker 5: the our experience with Chevron difference, it's sort of a blip, right,
Speaker 5: It like comes about in the eighties, it takes some
Speaker 5: years to take hold, and then toward the end of
Speaker 5: its life it's being subject to all sorts of qualifications
Speaker 5: about when you could apply it and circumstances and so on,
Speaker 5: and then the Screme Court starts citing it for a
Speaker 5: number of years before it.
Speaker 3: Formally overrules it.
Speaker 5: And so it sort of seems to me like that
Speaker 5: kind of the period in which courts are doing Chevron
Speaker 5: difference will be seen as a kind of a curiosity,
Speaker 5: not that Low or Bright itself is a kind of
Speaker 5: landmark decision because it got rid of something that you know,
Speaker 5: was not around for very long.
Speaker 4: I mean, Chevron was the most cited or so it's why,
Speaker 4: you know, all due respect to all the law professors
Speaker 4: who spent their whole careers expounding upon the scope of.
Speaker 6: But I I never wrote about Chevron.
Speaker 5: No, I just kind of don't think that that there's
Speaker 5: gonna be a lot you know, that we're going to
Speaker 5: be justified and obsessing over it because you know, the
Speaker 5: case law is not going to be durable. It's going
Speaker 5: to kind of move on from the Chevron cases. And uh,
Speaker 5: you know, Loper Bright kind of you know, doesn't do
Speaker 5: a radically new thing. It kind of restores the status
Speaker 5: bo anti And so I'm not sure we're really talking
Speaker 5: about all the implications of lower right so much. It's
Speaker 5: just sort of saying, here's how we do sted store interpretation,
Speaker 5: all right, and Jed dred last.
Speaker 3: Right is yours.
Speaker 6: Okay, Well, I again agree with what Steve said, Local
Speaker 6: right very much is a return to the normal way
Speaker 6: of doing things. But I I'd also just highlight something
Speaker 6: that we didn't really talk about much, which is that
Speaker 6: all these discussions about Chevron and Loper Bright are all
Speaker 6: about Article two and Article three. Right, how do the executive,
Speaker 6: how does the executive and the courts, how do they
Speaker 6: interact in this agency space? And maybe what we will
Speaker 6: be talking about in ten years is Article one and
Speaker 6: Congress's power right to legislate more specifically or to you know,
Speaker 6: kind of give more clear direction to agency, or maybe
Speaker 6: there'll be a revival of the non delegation principle. And
Speaker 6: I do think this whole debate just shows how much
Speaker 6: we've shifted away from Article one into Article two and three.
Speaker 1: So okay, all right, thank you so much, and to
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