Panel: The Future of Administrative Statutes

Episode Transcript
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Speaker 1 (00:03):
Great. Well, I have the unenviable task of impaneling the
five pm on Friday panel, which is always has more
viewers online than in person, and we've always wondered how
do we solve this problem? And I think from the
last panel, we now have a solution, which is the

(00:24):
panel should be about corporate law and then everyone will
stay with rapt attention and there will be fireworks and
it will be a lot of fun. But this panel
is not quite that exciting for most people. It is
about the future of administrative statutes and administrative interpretation. I
think we settled on that means, you know, low or bright,

(00:45):
major questions, doctrine, maybe a dash of non delegation. What
does the future look like? And the program is a
little misleading because I'm not This is a self moderated panel,
so I'm actually a participant. We are going to sort
of self moderate and I'm going to take the lead here,
but I'm also going to participate. So I'm Lawn, I'm

(01:06):
at the University of Minnesota. I'm going to say about
We're he just gonna go for about ten minutes. I'll
start us off on the topic and then Eric Bolander
will go next. He is a new professor at Liberty
University and he actually litigated the lower Bright case in
the d C circuit, So very excited to hear his experience,

(01:28):
and we have to say about that. Then we're going
to hear from Brian Slockham, who is a very perfect
scholar at Florida State University. He is the Stearnsweaver Miller
Professor of Law, writes about satritary interpretation, legislation. And then, last,
but certainly not least, Tera Grove, who is the Vincent
and Elkins Chair in Law at the University of Texas,

(01:49):
also a renowned teacher and scholar of federal courts and
statutory interpretation. So that's where we're going, and I'll kick
us off. I'll keep my own time, don't I'm going
to be a good role model here and I'm going
to stick under under the time. Okay. So I want
to do two things with my I promise short time. First,

(02:14):
I want to defend the proposition that Loper Bright should
have been a nine to zero opinion at least as
far as I have been able best to understand the
majority in descending opinions and what that means for the
future of deference to agency. I'll call it decision making,
since we don't quite know what to call it at
this point. Second, I will briefly defend a continued role

(02:36):
for the major questions doctrine in a post Loper Bright world.
My aim is to say something that triggers each one
of my copanelists in before their remarks. Okay, So, starting
with the lower Bright case overturning Chevron deference, my claim
is that very little, almost nothing, dare I say, separates

(02:58):
the best reading of the majority's opinion in that case
from the best reading of Justice Kagan's descent, at least
if that descent is read in light of Justice Kagan's
prior opinion in Kaiser, So, Kagan describes Chevron step one
as follows the inquiry at the interpretive step, she says,

(03:19):
is rigorous. I'm quoting now. A court must exhaust all
the traditional tools of statutory construction to divine statutory meaning.
But sometimes after all those tools are deployed, she says,
the statute remains ambiguous, and it's important to understand what
she means by ambiguous. She told us in Kaiser, and
I quote first and foremost, a court shan out AFOD
deference unless the regulation is genuinely ambiguous. The core theory

(03:42):
of deference is that sometimes the law runs out and
policy laden choice is what is left over. So the
bottom line, chevron step one should be rigorous, but sometimes
the law just runs out. Okay, let me now say
two things about all of this. First, her description of
Chevron would be unrecognizable to most practitioners in the circuit courts.

(04:02):
I'm stepping on it maybe a little bit. We'll see
what Eric says about this. But take the DC Circuit
decision in the Low or Bright case itself, which I
think is representative. The majority concluded that the statute was
not wholly unambiguous. There was still some question as to
the statute's meaning. Is that a rigorous inquiry? I'll let

(04:23):
Eric say more about this if he's so inclined. Point being,
Justice Kagan's description of step one is unrecognizable, But let's
take her at her word. If courts genuinely deployed a
rigorous step one, then I'm not sure the majority would
disagree with anything else. Justice Kagan wrote in her opinion.
She explained that sometimes the law just runs out. But

(04:44):
if the law has run out, what are we interpreting?
Kagan is quite right that all that would be left
over is policymaking gap filling. That is what the majority opinion,
also says, the majority panneling the late giant of the field.
Henry Monaghan writes that sometimes the best reading of a

(05:05):
statute is that it delegates policy making discretion to the agency.
So it seems to me that the dissent is saying
courts should rigorously construe statutes, but sometimes the law runs out,
leaving policy making discretion to the agency. And it seems
to me that the majority is saying courts should rigorously
construe statutes, but sometimes the law runs out, leaving policy
making discretion to agencies. Yes, I repeat myself, how is

(05:27):
this not a nine zero decision? Okay, let me now
say something about the major Questions doctrine, which is the
other statutory interpretation. Development depends who you ask in the
last few years. So I'll be particularly brief here because

(05:47):
I have written at length about this in a paper,
and Justice Bart adopted a similar version of the argument
that I have sort of adopted in her Biden v.
Nebraska concurrence. So naturally, I think her concurrence should have
been also zero. Let me begin by suggesting that the
linguistic account, which is the account she defends, and that
I defend right, that the Major Questions doctrine is not

(06:09):
actually best understood as a substantive canon. That's actually a
linguistic canon, and a defensible one at that, consistent with textualism.
That's the claim. But let me start by saying that
the linguistic account accurately reflects the Court's Major Questions cases
despite some of the justices rhetoric. Like I admit, some
of it is sounds a bit inconsistent. Let's just look

(06:30):
at West Virginia VPA. The Court said, we are sometimes
quote reluctant to read into ambiguous statutory text an extraordinary
delegation claim to be lurking there. The word system in
that case, by the way, national energy system was at
least ambiguous, the best technological system of emissions reduction. It
could mean a system within a plant, which I think
was the most obvious meaning, or it could mean a

(06:52):
national energy system. The point I'm trying to make here
is that I don't think this is a substantive canon,
or at least it doesn't have to be interpreted as one,
it's just a tool for resolving ambiguities. There's a threshold
the statute has to be ambiguous, which is not quite
how clear statement rules as a substance of Canon's work.
Clear statement rules work even if the language is otherwise unambiguous.

(07:12):
I don't think that's how this doctrine has been deployed. Okay, Now,
if that's true, if the doctrine indeed requires this threshold
of ambiguity, and it is about resolving those ambiguities, then
I think it's consistent with textualism. If textualists resolve ambiguities
by trying to ascertain which of multiple possible meanings the
legislature likely intended, then I think this version of the
major Questions doctrine accurately accounts for the legislative process as

(07:34):
far as we know anyone. It's true that Congress often
delegates tough policy questions. That's public choice theory one oh one.
It's also true that legislators often engage in deliberate or
strategic ambiguity. I suppose that's public choice theory two to one.
But the question is whether legislators are likely to delegate
the resolution of tough questions through ambiguity through oblique language.

(07:58):
That's the question. And as far as I know, there's
only been one empirical study truly bearing on this, and
in that study, professor's Gluck and Brestman find that the
congressional legislators and drafters do not typically intend to delegate
major authorities major policymaking questions through ambiguities in language. Okay, Now,
suppose textless instead resolve ambiguities by trying to ascertain which

(08:19):
of multiple possible meanings in ordinary reader would understand well. Ordinarily,
the recipient of a delegation or of information who is
sensitive to the stakes at issue is likely to demand
more clarity the higher the stakes. Now, Professor Dorfler has
written about this, and I took most of my inspiration
from his paper called High Stakes Interpretation. I think it's correct.

(08:42):
I know Brian on this panel and some co authors
have conducted additional empirical work that tries to call this
into question. I'm not sure that they succeeded in that,
and so I'll let Brian defend it if he's inclined
to talk about whatever he wants on this panel.

Speaker 2 (08:57):
Okay.

Speaker 1 (08:58):
Now, to be sure, all all that also raises the
question of what is the high stakes outcome in validating
the agency action or the agency action itself. Fair enough?
Fair enough, But I submit that the question the judge
has to answer is the meaning of the statute, and
so the likely consequences of the delegations are what must
be considered. Okay. Last point that I want to make

(09:18):
is that there is historical support for the common sense intuition,
that is, the major questions doctrine. In early debates over
the Necessary and Proper Clause, there was a question whether
incorporating an actual bank was too great and important a
power to be left implication. Everybody in the debate agreed
that some authorities, like the power to tax or to
declare war, were too important to be left to implication.

(09:39):
Madison summarized the point in admitting or rejecting a constructive
authority not only the degree of incidentality to express authorities
to be regarded, but the degree of its importance also,
since on this will depend the probability or improbability of
its being left to construction. The intuition also exists today
in agency law. Here's the third restate. A reasonable agent

(10:02):
should consider whether the principle intended to authorize the commission
of collateral acts fraught with major legal implications for the principle,
some things, in other words, just matter too much to
be left to guesswork. It's the exact same intuition that
we find in the Major Questions doctrine. And I'll stop
my defense there at sub eight minutes, just so everyone's away.

Speaker 3 (10:21):
Thank you, Thank you so much, Elan, and thank you
so much for the Federal Society for inviting me. Like
Elon said, I was involved with the Lower Bride case,
and I want to give you because I think it
the duvetails one of Elon's points.

Speaker 1 (10:32):
I will give you a little bit of the facts
of the cases that's not talked about a lot.

Speaker 3 (10:35):
I'm going to defend the courts holding, but I want
to speak more about the future implications of what the
court did here and what I think is going to
happen next with the implementation of lower Bright in the
lower courts. And I particularly want to push back on
the sentiment that's become popular lately that lower Bright didn't
change much in what's going on. So I want to
push back on that a little bit. You say, well,
of course, you want Loberbright to mean something you're involved. Yes,

(10:58):
fair enough, but I think I have a good argument
behind it. First, I want to talk about loper Bright.
It's a group of fishermen in the herring fishery, and
I have a hering ty clip on today to accentuate
that it's a group of small businessmen. And the statute
says that they could put monitors on their boats to

(11:19):
watch them fish. That the statute says that I concede
that it gives the Noah the authority, the discretionary authority
to require monitors in the boat. The statute says nothing
about the fishermen being required to pay the salary of
the monitors, at least in this fishery, but in other
fisheries three other specific fisheries. Congress gave Noah in the
same statutory enactment, by the way that created this authority

(11:40):
to mandate observer coverage or mandate the human observer in
their boat, and three other fisheries, a rich one.

Speaker 1 (11:46):
Of the richest fisheries, the pecific fishery.

Speaker 3 (11:48):
We're all here looking at it limited access privileged programs,
which gives fishermen special benefits to participate. And the foreign fishery,
obviously dealing with non American fishing boats, it does give
the authority to shift the monitor and costs of those industries.
Not only does it give the authority, it caps the
percentage of what people have to pay, even in the
rich fishery, right the Pacific fishery. And so I felt

(12:10):
like this was a fairly straightforward statutory interpretation case. We
have an implied authority that Noah is claiming under this
authority to carry monitors, and also a necessary appropriate clause.
And then we have a specific delegation of this authority
three other places in the exact same statute. And if
Congress thought it had given this broad implied authority, well

(12:32):
then why did it delegate Alswer Right? And you can
think of all the statutory tools like expressly go unius
or the specific governments the general that we might want
to use here. But at the district court level and
the appellate court level, the agency said, well, you need
to defer to us the experts. This is not a
question of scientific expertise of whether or not a certain
catch quota should be implemented on fishermen. This is a

(12:54):
question of whether they have statutory or they have statutory
authority to do this, and who is more experted that
a bureaucrat at Noah who yes, might be involved in
the science or a federal district judge. Right, And I
would submit that a judge is far more expert than
someone who's working in Noah and interpreting the bounds of
the statute.

Speaker 4 (13:13):
Right.

Speaker 1 (13:14):
But the court found ambiguity here.

Speaker 3 (13:16):
Actually, the district court ruled on step one a chevron
which I still struggle to get on board with against us.
But the DC Circuit found ambiguity and went to step two.
And that's why I think we talk about a lot
of these issues. I'm going to get back to some
major questions in a second. You can't miss the people
that are involved and coming out of practice for ten years,

(13:37):
it's very difficult to explain to a client who was
a small business owner who's seeking pro bono council, who's
up against the most powerful litigating entity.

Speaker 4 (13:45):
In the world.

Speaker 1 (13:45):
I don't think that's an exaggeration.

Speaker 3 (13:47):
Oh, by the way, in addition to all of that
resource imbalance, there's a thumb on the scale in the
court and when we go in, just be prepared for that.
And I think that is offensive to the average America.
Now I'm not saying that's why the court should rule
one way or another, but when we have these conversations,
we shouldn't miss this real world impact.

Speaker 1 (14:03):
We talk about large.

Speaker 3 (14:04):
Industry, but also think about small industry and small businesses
who might be able to scrape enough money together to
litigate if they band together. But are they going to
do that If they're you know, if attorney's counseling them, well,
they're going to get difference anyways, which is why I
think this decision is important. So let me move to
my next point, pushing back on the idea that Chevron
or that lower Bright is a modest course correction. So

(14:25):
the worst thing I'll say is, even if I do concede,
it's a modest course correction. If I and my small
business planets are on a boat that's going straight into
the rocks, and I have a modest course correction to
the left of the rocks, right, even if you can
see that here in this case on Reman, which hasn't
been decided yet, I'm very happy for that modest course
correction because my case is not collapsing on the rocks
of Chevron deference right, But I think it's more than

(14:47):
a modest court modest course correction. I think, first of all,
if you look at the empirical evidence that Ken Farnett
and Chris Walker have put together in papers talking about
the high percentage of cases that got to step two,
and I think the government I'm looking at right here
ninety three point eight percent of the time prevailed on
step two when it got there. I think it's very
difficult to wrangle to grapple with that empirical evidence and

(15:09):
say that there won't be some sort of substantive impact
on the outcome of cases.

Speaker 1 (15:13):
Now, it might be hard. Gason Scene has a paper
on this.

Speaker 3 (15:15):
It might be hard to evaluate that because it will
probably become result in more cases being brought right because
people have a better chance, and agencies might also tamp
down on some regulation. So it might be hard to
do an empirical study on that. But I think if
we look at it over the next five to ten years,
you're going to see some evidence of that. So one
of the primary contentions against lower bright mattening mattering comes

(15:38):
from Adrian Vermule. He wrote a paper on this where
he says, well, it's not you know, it's just Lowerbright delegation.
It's no longer Chevron deference. And a lot of people
have keen on a paragraph in the decision that says, well,
of course agencies can be given a policy discretion and
a broad, you know, express delegation, and you know therefore

(15:58):
they have discretion in that, and we should defer to them.

Speaker 1 (16:00):
Right.

Speaker 3 (16:01):
First thing I'll submit is that, and I have some
cases here that evidence that not everything is a clear
express delegation. Right, if only Congress were to speak so
clearly to say that you may have ten scrubbers on
a smoke stack between one and ten, and the EPA
may decide whether you have between one in ten in
their sole discretion, right, that's a clear express delegation. Some

(16:22):
of those exist not for the most part. So I
think we need to look at these cases through two
different lenses. One are ones that have implied delegations of authority,
and lowber Bright in a case I'm about to talk about,
certainly fit that and others that have express delegations of
authority where they create some bounds. And the reason why
I think Vermil's argument falls short is because before we
were deferring to the agency on what the bounds of

(16:44):
their authority was right. If I can set the limits
of the broad express delegation of authority I have, because
the cord is going to defer to me on the
interpretation of the statute, then I'm going to set them
as broad as I can, and certainly to accomplish whatever
my goal might be. Court's now engaging to set those limits.
I think that is a very significant change. I don't

(17:05):
think that's a modest course correction, and of course there
will always be cases that will be difficult on that,
but I think in a lot of cases it will matter.
So let me tell you about one of the cases.
It just came out a sixth Circuit. It's called Maktezuma
Reyis by Garland and it's from Judge the par It's
a pretty run of the mill immigration case. The Board
of Immigration Appeals heard an appeal from someone who is
going to be deported that he shouldn't be deported because

(17:28):
he had an exceptional and extremely unusual hardship and that's
the statutory term. So in the past the BIA the
courts would defer to that will Judge the par pulls
this case in the sixth Serd and This just came out,
I think December twenty third, so this is a very
new case. And he says, here's how I'm looking at
applying Low for Bright. First, he creates, and please don't faint,

(17:50):
a three step approach, which is one we need to
independently determine the scope of Congress's authority to the agency.
Independently determine the scope of congress delegation of authority to
the agency.

Speaker 1 (18:01):
That is different.

Speaker 3 (18:03):
Before lowber Bright was decided, the courts would not be
independently determining that right unless they would say, oh, well,
it's a clear statutory language, we could rule on step one.

Speaker 1 (18:12):
Well, if they didn't get to if they could.

Speaker 3 (18:14):
Rule on step one in Lobra Bright, and this was
evidence all across the circuit courts they were getting to
step two all the time whenever they wanted to, regardless
of whether the Supreme Court was doing it or not.
The second thing that judged the par says we should
do is ensure that delegation doesn't violate the Constitution. And
I'm going to get to that if I have time
in a moment. Obviously he's talking about is it too
broad of a delegation that might invoke the non delegation doctrine.

(18:35):
And third, we determine whether the agency's interpretation stays within
the scope of the delegation.

Speaker 1 (18:40):
So we create a bound. Is this bound constitutionally permissible?
And were you within this bound? Right?

Speaker 3 (18:45):
And I think Judge the bar has been reading perhaps
some of the literature saying lower bright doesn't matter, and
he says broad language when well, let me start first.
He says, express language conferring discretion to the agency is critical.
So Congress needs to be clear. We like if they
use the term reasonable appropriate, and the agency has to

(19:07):
find these standards to be met, and the agency we
need to defer to the agency when they define these
That's one thing. If Congress is clear. But if Congress
is unclear, which they are in these statutes, right, they
don't say, oh, I shouldn't say unclear. If Congress has
not given this express delegation to the agency, then who
defines what the statute means?

Speaker 4 (19:25):
Right?

Speaker 3 (19:25):
Of course, it's the judge. So he said, if broad
language alone triggered deference, we'd unwittingly return to construing less
than precise words as implicit delegations to the agency that
warrant deference.

Speaker 1 (19:35):
This can't be right.

Speaker 3 (19:37):
The case that declared Chevron is overruled did not quietly
reinstitute it.

Speaker 5 (19:42):
Right.

Speaker 3 (19:42):
So he's saying, we look at two different types of statutes.
An express delegation that says the agency shall have discretion
to define what this term means or execute some sort
of policy, and then we have implied delegations like the
one here that says no such thing. And so what
he does is he empties the interpretive toolkit to use.
The goes to the dictionary, goes to ordinary public meeting,

(20:04):
doesn't a lot of work to determine what exceptional and
extremely unusual hardship means. Now he ends up at the
same thing that BAA thought with in the first place,
but he rejects, saying I found there on defference. They
just happen to get it right. And this cuts off
a future administration vacillating back and forth. And I'll just
briefly mention one more case, which is the net neutrality case. So,

(20:24):
in the net neutrality case that just came out of
the Sixth Circuit right dealing with the Open Internet Order,
if a case ever called for invocation of the major
questions doctrine. Perhaps it was that case. Net neutrality is
pervasive effects virtually every American billions trillions. I can't do
math right, and economic impact and regulating the internet. It

(20:45):
is a major political question. But does the Sixth Circuit
use the Major Questions doctrine and deciding this case, No,
it does not. It says, because with low or Bright
we can just look at the statutory interpretation, we don't
need to invoke the Major Questions doctrine. It specifically decides
not to invoke it and says we can just deal
with the statutory interpretation and empty our toolkit and so
all of our work and how we use the canons.

(21:07):
It's in public view, it's open to appeal, and therefore
the Major Questions doctrine is not necessary here, which raises
the question to me, I'd be curious what my fellow
panelists think is when is the Major Questions doctrine going
to come into play?

Speaker 5 (21:20):
Right?

Speaker 3 (21:20):
Is it going to be a tie breaker when there
are only very vague statutory terms that the court just
cannot figure it out right? Or is the Major Questions
doctrine not going to be used as much as it
was before? And one gripe I have with the Major's
questions doctrine, and as I don't think it went far enough.
So I think about in our case right in Low
or Bright, perhaps it wasn't a major question of political

(21:43):
and economic significance to the American people, but it was
a major question of political and economic significance to the
fishermen and the community of the fisherman. It was also
an extraordinary regulatory authority to say that you have to
carry a monitor and you have to pay that person's salary.
And I would question why not extended to the air
Congress was legislating specifically on this issue and was giving

(22:05):
an extraordinary and broad power. Wouldn't they need to do
it expressly? Why should we limit this only to the
big cases and not to the cases that affect other people?
And so I have a a couple of concerns going
forward with congressional incentives. So first, I think, you know,
we can't forget Congress. We're talking about the executive branch
and how it interprets statutes. We're talking about the courts.

(22:29):
I'm sorry, how the executive branch how construe statutes and
the courts and how they interpret it. Well, it's on
Congress to be clear. And if, in a sense, Congress
is becoming so unclear that courts, despite emptying the entire
interpretive toolkit, cannot determine the meaning of a statue, particularly
if it's a criminal statute, perhaps we need to consider
that it's void for vagueness. I think that could apply
to some of the civil statutes too, with civil penalties.

(22:51):
And also, if Congress has spoken so vaguely that the
agency has such broad power, then perhaps I think the
non delegation doctrine necessarily needs to come into play. And
here's a concern I have is that Congress will do
one of two things. Either we'll start giving incredibly express
broad delegations because they don't want it to fall on them, right.
I feel like the incentives were all the wrong way.

(23:12):
They don't want their name on anything they have to do.
Let's make the agency do it. I can yell at them,
or I can celebrate what they've done.

Speaker 1 (23:18):
Doesn't matter.

Speaker 3 (23:18):
I get to go back to Washington. So let's start
doing insanely broad delegations. I'm saying hypothetically, if this were
to happen, the EPA may decide how to regulate cold
and it's express and we expressly give them broad deference
to do whatever they want, etc.

Speaker 1 (23:32):
Etc.

Speaker 3 (23:33):
The other thing Congress may do is amend I don't
think they're going to amend the APA, but they could
change agency organic statutes to implement some sort of deferential
review to agency action. And I think if the Supreme
Court wants Low or Bright to mean something and wants
it to be a lasting doctrine, if Congress, and I'm
not saying it will, but if Congress starts misbehaving this way,
then it is a necessity that the Major Questions doctrine

(23:56):
needs to be invoked by the Supreme Court, needs to
be revived by the Supreme Court. I'm sorry, the non
delegation doctrine, excuse me. It needs to be revived a
screen court. So I'm probably over time, but I appreciate
hearing for.

Speaker 6 (24:07):
The rest of the penelists.

Speaker 1 (24:08):
That was great, Thank you.

Speaker 7 (24:09):
Okay, I'm going to resist Elon's provocation to get into
babysitter hypotheticals at least for a little while, because I
wanted to talk about Chevron and lowper Bright, which I
guess my thesis is that I might agree with lowper
Bright because I'm kind of in the middle of I'm
come in the middle depending on how the court and

(24:33):
lower courts and the future conceive and build out the doctrine,
because I do agree that Chevron was problematic in various ways,
and not because agencies received discretion, but more so the
way that the two step doctrine was constructed. So I

(24:53):
think Chevron is interesting because I really think it's it's
true and and it's kind of major point about interpretation,
and that interpretation involves policy making at least at some points,
and that's really this kind of truism of legal realism.

(25:16):
But on the other hand, I agree with Elon that
Loper Bright in the sense is also very kind of
very straightforward. Right, if you accept Marbary v. Madison, you
have to accept the idea that the judicial branch decides
what the law means, which I really don't think Chevron
ever kind of was in tension with that, but we

(25:38):
can probably all agree with that principle. And also the
point that the Court made that outside of the administrative contexts,
courts never kind of run out. And this is the
kind of difficulty of Chevron, this idea that at some
point in the interpretive process, courts run out of used

(26:00):
to and they just have to throw up their hands.
And that was always a very awkward kind of aspect
of Chevron, at least in the way that some people
read Chevron. And so that that point that the Court
made in Lower Bright repeatedly, I think that judiciary does
just fine outside of the administrative contexts and interpreting statutes,

(26:25):
and that courts aren't really hampered by ambiguity, right, even
though some statutes might be ambiguous, and kind of using
that term broadly, courts can still reach the best meaning
of the statute, right, They can still interpret it according
to its best meaning, which is obviously true. And that's
why I think Chevron was always somewhat awkward, and which

(26:49):
was good for law professors, right, because it created careers
for many many law professors over the decades.

Speaker 4 (26:58):
Right.

Speaker 7 (27:00):
And two aspects of Chevron I think were particularly problematic
and create I think a new opportunity for the Court
now with Lobra Bright. And one was this across the
at least how it initially started out in Justice Scalia's
at least initial conception of Chevron that he argued for

(27:22):
in Meed et cetera, This idea that there was this
across the board presumption that ambiguity means delegation and calls
for a deference to an agency that was always problematic, right.
It was just this kind of broad fiction that the
Court eventually learned was kind of unworkable and it needed

(27:43):
to be made more sophisticated when and maybe, and probably
a lot of people would agree maybe that the Court
did so through Mead et cetera in a kind of
maybe arbitrary way that wasn't always well thought out. And
the second part of Chevron that I think was particularly

(28:03):
problematic was centering this idea of ambiguity, kind of what
I mentioned before, this idea that deference to agency interpretations
turns on this kind of linguistic notion of ambiguity, which
is especially problematic because interpretation is holistic, and so courts

(28:28):
combine kind of what linguists would call ambiguity identification with disambiguation,
and so you had this kind of weird process where
it was really arbitrary when courts would decide that there's ambiguity.
Is it when we can't disambiguate? Is it when we

(28:50):
think we have there's maybe one interpretation that's slightly better
than the other is that still ambiguous? It ended up
being arbitrary, even though agencies under Chevron the win percentage
went up, right, but maybe in a kind of arbitrary way.

(29:11):
But I think with Wilbur Bright, it'll be interesting how
the doctrine is kind of fleshed out in the future. Right,
So the court mansion or or seemed to indicate that

(29:31):
skid More is still relevant, right, but exactly what does
that mean? And there's also this tension in the administrative context,
especially which Justice Gorsig noted somewhat in oral argument. He
indicated that Chevron was a cure for textualist interpretation, and

(29:57):
it goes back to this kind of idea of legal
real lif that interpretation involves policy making, but textualism is
supposed to reject that idea, right, And so Chevron really,
I think, kind of set up a protextualist kind of
two step process. Not workable, I think, But I think
the Court will have to think about in a way

(30:20):
that's more sophisticated than skid More, about how maybe we
don't want to call it difference, but in what situations
should courts, especially respect agency interpretations? And I would how
am I doing that type of the way good, okay,
And I would I would argue that the Court should

(30:43):
maybe think about some arguments and some cases that maybe
came after Chevron, but ideas that also preceded it, Like
in nineteen there's a case in nineteen eighty seven that
kind of was controversial at the time. Justice Scalia wrote
a scathing dissenting opinion. But as I n asked the

(31:07):
Cardoza fonseka, if anybody remembers that case, Okay, one person
I knew marked it. So the Court referenced pure and
Justice Stevens and Justice Scalia did not like the Court's
reference to a pure question of statutory construction. So the

(31:29):
Court said, a pure question of statutory construction is for
the courts, but these kind of as applied interpretations that
agencies make should maybe received difference. And I think the
court and of course that raises a question of what
is a pure question of statutory construction versus something that's applied.

(31:54):
Sunstein and solom kind of they wrote an article before
Lower Bright was decided, and they made us this distinction
between interpretation and construction, which is kind of somewhat similar concepts.
But I think the Court should think about what judges
and what the judiciary does best, which, in my view,

(32:17):
a pure question of statutory construction involves, like what happened
in Cardozo Fonseka, you have two provisions that maybe conflict
and that need to be reconciled. That's what courts do,
in contrast, what agencies do best, and what is really
kind of discretionary about interpretation, And I would argue that

(32:39):
it involves semantic meaning, and especially the semantic meaning of
broad terms, which the Court did gesture to in Loper
Bright when it talked about which might have a disagreement.
When the Court talked about implicit delegation, so the court
used a couple of examples, reasonable and appropriate, And I

(33:00):
think scholars are wondering whether those kind of exhaust the
universe of kind of indications that there's implicit delegation to agencies,
and now would argue that they don't. That most, if
not all, words have a degree and a degree of indeterminacy,

(33:21):
and words like reasonable and appropriate might have a very
high degree of indeterminacy, but other words also have Most
words have some degree of indeterminacy, and I think in
those situations it's appropriate to let the agency flesh out
what the words mean within the context of the statue

(33:42):
using their expertise and policy making. But that's just one
idea of that. I think the courts will have to
figure out necessarily to avoid textualist judges being non textualist.
I'll talk about major. Maybe we can get another babysitter

(34:02):
thing later.

Speaker 5 (34:03):
I don't know.

Speaker 1 (34:03):
I'm happy to have that fight.

Speaker 8 (34:06):
Tara, Yes, so so, thanks so much for being here,
Thanks to Alan for putting this together. I'm just going
to offer a few thoughts. I think when you look
at the language of the Administrative Procedure Act, you can
interpret it in different ways, right Like, it can be
it can actually mean what the Court says in lowber
Bright that courts have to decide questions of law in
each case. Or it can be what the Court also

(34:28):
says in lowber Bright that actually the legal regime requires deference.
And here actually want to agree with Eric on one
of his comments. I think Lower Bride's going to matter
a whole lot because what Chevron did was provide a
rule of decision for the Supreme.

Speaker 6 (34:44):
Court to guide lower courts.

Speaker 8 (34:46):
Okay, you see statute, turns out it's ambiguous. Here's what
you do and here's what you do across the board.
One thing that Peter Strauss pointed out about about Chevron
is that it was a rule of judicial administration. It
may things clear what to do. It wasn't one hundred
percent clear. There's going to be disagreement about Chevron step one,
some disagreement for us at Chevron Chevron step two.

Speaker 6 (35:10):
But it was a rule of digital administration that applied
across the board.

Speaker 8 (35:13):
Courts of appeals were actually pretty pretty coherent and what
they did, a study by Chris Walker and Ken Barnett
show that it actually helped make less ideological decisions in
the lower courts.

Speaker 6 (35:28):
And Justice Scalia said.

Speaker 8 (35:29):
In FCC City of Arlington, if you get rid of Chevron,
we are going to have chaos in the lower courts.
And that is what I anticipate, and I also anticipate
for people who are excited about the next administration that
there may be some regret about about the destruction of
Chevron because there'll be far less deference from many many judges.

(35:52):
We have a very very split federal judiciary right now
about various things that the administration is going to do.
So when you look at this from a judicial administration standpoint,
if you care about consistency across courts, it's a little
bit of a disaster. But I agree that the actual
legal question is very difficult. Now on the language in

(36:13):
low or bright that leads people to think it doesn't matter.
It says, Okay, well, there's a delegation to an agency.
The agency gets to kind of do stuff. This is
where I think the Major Questions doctrine matters a tremendous amount,
because the Major Question doctrine is going to tell is
going to give courts license to kind of say what
our agencies allowed to do. There's been a lot of

(36:37):
writing about the Major Questions Doctrine, and some of the
writing is whether the Major Questions Doctrine is consistent with
a textualist approach to interpretation. And you know, one of
the things that I've written is that there are different
versions of textualism, and if you have kind of what
I've called a more flexible version of textualism, it's more
open to substant of canons and things like that. Yeah,

(37:01):
the Major Questions Doctrine is probably consistent with that. That's
not the version of textualism that I advocate. I advocate
a more formal, restrictive version of textualism.

Speaker 6 (37:10):
But if you are. But there are some versions of.

Speaker 8 (37:13):
Textualism with which the Major Questions doctrine is quite consistent,
as Elan knows, I disagree with him that a more
restrictive versions of textualism can be reconciled with the Major
Questions doctrine, because I think it's just really hard to
argue that the Major Questions doctrine is a linguistic canon

(37:33):
as opposed to a substance of canon.

Speaker 6 (37:35):
I think Justice.

Speaker 8 (37:36):
Gorsuch actually was quite upfront that this is a way
of enforcing the non delegation doctrine.

Speaker 6 (37:40):
I think that's a very honest approach.

Speaker 8 (37:43):
It's not really the text, right, it's it's rather a
constitutional concern that's driving that, and there are versions of
textualism with which that is totally consistent.

Speaker 6 (37:53):
But saying that while.

Speaker 8 (37:55):
Congress just won't actually give big things over to agencies,
that's a obst of claim, not a linguistic claim. I
personally think Congress does and has for many, many decades,
given lots of things over to agencies. That's actually one
of the reasons Low pra Bright was litigated. Right, People
are very concerned about delegations to agencies. So if you

(38:15):
look at our practice over the past eighty years of
history or so on, it's really hard to say there's
any kind of practice in the United States that limits
what Congress gives over to agencies, which really undercuts the
idea that there's some sort of linguistic agreement that that's
a bad thing to do. It's a substantive idea, a
very reasonable one, one with which I don't share, but

(38:39):
it is a substant of canon, and I think hard
to reconcile with strict versions of textualism. I had a
conversation with John Manning not too long ago, and he said, gosh,
you know, I really would like to write about the
Major Questions doctrine. I said, don't worry, you already did
so for those who were interested, I recommend, highly recommend

(39:01):
John F. Manning the non delegation doctrine as a canon
of avoidance from two thousand the Supreme Court Review. And
this was a comment on FDA versus Brennan Williamson, and
it is a beautiful critique, even in twenty twenty five
of the Major Questions doctrine from a textuals perspective, and
I recommend it to you all. One of the things

(39:23):
that John said in that paper was narrowing a statute
in this way in that case that the court held
the FDA did not have the power to regulate tobacco,
John says narrowing a statute in this way threatens to
unsettle the legislative choice implicit in adopting a broadly worded statute.
John goes on to say, if the point of the
non delegation doctrine is to ensure that Congress makes important

(39:46):
statutory policy, a strategy that requires the judiciary, in effect
to rewrite the terms of a duly enacted statute cannot
be said to serve the interests of that doctrine.

Speaker 6 (39:58):
And quote.

Speaker 8 (40:00):
The final thing I want to say, and I'm not
saying this is a provocation, I mean, this is a
genuine curiosity for me, is why the change among members
of this institution as to issues like Chevron. So, if
we circle back a couple of decades to nineteen ninety

(40:22):
to the nineteen eighties and nineteen nineties, members of the
Federal Society and the Heritage Foundation were among the biggest
supporters of the Chevron doctrine. In fact, it was a
doctrine created by the Reagan administration and lawyers in the
Reagan administration, and was despised by progressives initially because of
the way the way it handed power over to agencies

(40:43):
controlled by the president. In nineteen ninety two, Heritage Journal
Policy Review published an article seeking to distinguish Reagan Bush
judges versus their predecessors on the ground that quote Reagan
Bush judges tend to accord greater deference to the substantive
decisions of expert agencies quote, with Justice Scalia's commitment to
Chevron as a leading example.

Speaker 6 (41:06):
So this is just a question I have.

Speaker 8 (41:09):
Why did the conservative legal movement give up on Chevron?

Speaker 6 (41:15):
And I'll stop there.

Speaker 1 (41:16):
You have an answer, I don't know.

Speaker 6 (41:20):
It's a genuine question.

Speaker 1 (41:22):
Great and we're making great time, So thank you to everybody.
Do you want to start, Eric, And then I have.
I was triggered by some things I heard, even if
I did not sufficiently trigger others to respond. But you
want to start, Yeah, I'll starve with the question. The
question you asked. At the end, I have a few

(41:43):
points on to make.

Speaker 3 (41:45):
I think if you read the Supreme Court's history of
Chevron right, they called a dizzy and breakdance and how
it's been implemented over time.

Speaker 1 (41:51):
Now I can't.

Speaker 3 (41:53):
I was not a lawyer in the late nineteen eighties
nineteen ninety, so I think I'm off the hook. No,
were you even a live ish But no, I if
you read the history of it, it just wasn't working.
And that's why they had to layer on me. They
had a layer on step one, they layer on step two.
D C Circuit had step one and a half. I mean,

(42:14):
there were all sorts of things that were, you know,
kind of coming in Chevron. I mean, when Chevron itself
was first decided, I don't think the court really intended
for it to be what it was, and true it was.
It was Judge Walden and Judge Escalia than Justice Scalia
who did that. But I just think as they looked
at it over time, it just wasn't working. It was
delegating far too much authority to the executive branch, and

(42:35):
you could see that it was frustrating what we view as.

Speaker 1 (42:38):
Originalism and textualism.

Speaker 3 (42:40):
And I think that takes me to my next point,
which is talking about how there's policy making inherent in
statutory interpretation. Now I'm not naive. I don't think that
every judge is capable of being absolutely ideologically pure when
interpreting a statute. But I do think particularly if you
look and I have a few more cases, but if
you look at the cases that have come out recently

(43:01):
after lower Bright, judges are at least showing a great
extent of work and how they're doing statutory interpretation, what
canons they're using, what they're relying on, whether they're relying.

Speaker 1 (43:12):
On Skidmore or not.

Speaker 3 (43:13):
And a couple judges have said, well, Skidmore seems like
it's an option the Supreme Court gave us, but they're
not viewing it as something that's mandatory. It's more of
a historical and contemporaneous canon that we can use if
we think it's helpful. And so I would much rather
have judges doing that statutory interpretation, using the statutory canons
of construction and all of that, rather than having a

(43:34):
bureaucrat and an agency doing it being able to change
their mind every four years. One of the arguments for
Chevron is that created uniformity. Well, of course, it naturally
created geographic uniformity, because every single court would simply defer
to what that executive branch was doing, but then four
years later it would create another new geographic uniformity that
went the other way. Look at brand X, look at

(43:55):
the history that the six Circuit lays out in the
net neutrality decision. So the idea that it created a
uniform was, well, let the executive change what a statute
means every four years, and it simply cannot be the
case that what Congress intended when it first passed a
statute changes magically every four years. It has to have
a best meaning. And so I think, yes, I'm not naive.

(44:15):
I'm not going to sit here and say, oh, judges
certainly never conservative or liberal. U let their let their
own policy views intrude on the way they interpret a statute.
I mean, people are human, I get that. But I
do think that if you're if we're forcing this out
in the open with statutory interpret interpretation, with statutory construction,
with with a neutral arbiter between the executive branch and

(44:36):
the Congress saying executive branch are exceeding what the Congress
delegated you, I think that it's best in the hands
of the judiciary rather not in the hands of the bureaucracy.
I think one one other point on skid Moore, and
I already kind of briefly made this, but I too
wonder where skidmore is going to come in, and I
am curious at looking at for example, the judge the

(44:58):
part decision that I read from the the Concurrence chastised
him for not using Skidmore, and his view was.

Speaker 1 (45:05):
Well, I didn't need to use it.

Speaker 3 (45:06):
The statutory meeting was very clear, and even if I
did use it, I would get to the same extent.
But he, at least as as far as I read
his opinion, is not viewing the Supreme Court's suggestion of
Skidmore as a mandate, but simply as here's a useful
tool that you may use and real quick, Tara, I
do agree with you in the major questions doctrine. I
do think it's a half measure. I think it's a

(45:27):
faint at the non delegation doctrine. Now, I think they
should have gone the whole way. But I do think
it is hard to sustain it as a linguistic canon
when you sort of go halfway there and stop right
because you know, conceding. I know what Justice Barrett wrote. Now,
maybe I've just triggered Elone myself. But yeah, I've talked
too long. I'm sorry.

Speaker 1 (45:48):
No, that's great, Tara. Can I take a stab at
the last question? And then, Brian, if so, bless you.
In the nineteen eighties, right, what was happening in the
federal judiciary before this organization had the dramatic impact that
it had over the forty years. I think you had

(46:09):
what can only be fairly labeled as judicial activism, judicial adventurism.
And look at the Chevron decision itself, what the DC
Circuit had held in that case, which is, you know,
they looked at the very super broad purposes of the
statute and said, well, in non attainment areas you can't
use the bubble policy, and entertainment areas you can use

(46:30):
the bubble. I mean, they were really just pulling this
stuff out of thin air to thwart the policy in
that case of the Reagan administration. And so it makes
sense to say, if the judiciary is going to be
that activist, well let's grant that their ambiguities. You're being
a little too adventurous about finding ambiguities and resolving them

(46:52):
as a judiciary, defer to the choices of the executive branch,
because ultimately they aren't always interpretive, like I thought, run
actually involved policy making. I think it was a gap
that the statute didn't anticipate. Think about what happens when
the definition of stationary source, when multiple definitions apply, you know,
you could have a facility with multiple structures or an

(47:12):
installation with most multiple building I mean, right, And so
I think it was sort of a policy making question. Well,
fast forward for years, and all of a sudden, you
have judges who, again depends on your perspective, are no
longer being adventurous. Again depends who you're talking to, and
are trying to be you know, stricter textualists. And you

(47:37):
had this executive adventurism that transpired as a result of
the Chevron decision. And so in a way you can
see it as consistent, right, I mean one story of
consistency as Republicans had one institution at one time and
another at another time. But another is that they really
cared about, you know, not having adventurism activism in the

(48:00):
courts or in the executive and he just sort of
modulated over time. What was the greater concern. I have
a lot more to say about elephants and mouseholds and
Brendan Williamson and so on. But let me see if
Brian wanted to chime in, and then Tara, I'll send
it back to you as well if you had.

Speaker 7 (48:13):
Any Okay, I wasn't going to answer that the last question,
but I just had two points, went about Skidmore and
then went about the major questions oct but not babysitters.

Speaker 1 (48:26):
There's still time.

Speaker 7 (48:27):
Yeah, I guess I agree with Jessice Scalia in his
view on Skidmore. He kind of had very little respect
for it, no pun intended. I kind of give it
the back of his hand, because it really isn't a
coherent doctrine of deference and the idea that and I

(48:47):
agree with Justice Scalia that the idea that judges should
think about the thoroughness of an agency's reasoning and more importantly,
how persuasive the agency's reasoning is, that's just litigate, right,
the more persuasive argument wins. But that's not a doctor
and that's not any kind of coherent doctrine of different

(49:07):
So I kind of agree with Justice Scalia that just
kind of a narrow version of Skidmore is pretty worthless.
So I'm not sure why if a judge is admonished
to consider a skidmore or not. I'm not really sure
why that would matter, other than maybe some kind of
rhetorical threat that the judge should maybe consider the agency's

(49:32):
interpretation more so than the judge normally would. I'm not sure.
I mean the factors that maybe are part of skidmore
like agency consistency and contemporaneousness. Maybe we can argue about
the degree to which of those are important. It should matter.
That's actually much more substantive than the kind of nonsense

(49:56):
of persuasiveness and thoroughness. But I would also, are you
like us mentioning before that we need a lot more
than that to kind of guide judges into thinking about
what kind of statutory structures call for particular respect to
an agency's interpretation. The major questions doctor, and I guess

(50:22):
Elon might be surprised that I'm not as opposed to
your view as you might think. Putting the babysitter. I'll
see if I can mention that a couple more times
to the side, but kind of at its core, I think,
and you can think about statutory language in kind of
two ways. One way is if it's really ambiguous, and

(50:45):
if those cases really involved ambiguity, then the major questions, doctor,
I would say shouldn't be controversial at all. Right, But
I think I really think in most of those situations
are something slightly different going on, which is, they all
involve kind of this idea of broad statutory terms and

(51:07):
contextual evidence that conflicted with just the broad statutory terms,
and so it involved this kind of question of whether
the broad statutory terms should be interpreted literally, and I'm
not I argue against literalism in kind of various different
contexts and so, and I think in a kind of

(51:28):
a linguistic sense, non literalism is often consistent with linguistic
meaning and public meaning, and so I don't think it's
all that should be all that controversial that broad statutory
language shouldn't be read literally when it conflicts with other
provisions and other contextual evidence, other statutes of other provisions,

(51:51):
et cetera. I do disagree to the extent that people
view the major questions, doctor, and as some kind of
clear statement rule. I think that would work against linguistic
media and maybe policy and other things. But I guess
we can argue about whether it's actually a clear statement
rule or something different.

Speaker 1 (52:13):
Terror do you want to jump in and then yeah, sure.

Speaker 8 (52:16):
So I really appreciate people taking my question seriously because
I meant it as a serious question, and I appreciate
Eric's response. You know, it's interesting like the Reagan administration
advocated Chevron so that it could change policy, right, it
was whole point, and it was considered not a bad
thing but democracy, right. The Reagan administration had been elected
by a lot of people, and when a new administration

(52:39):
comes in, they can also change things. And this is
actually quite quite healthy in a democracy. And I also
appreciate your Responsalon because it was extremely honest, But it
also saddens me because it very much comports with the
explanation that I've heard from from people on the left,
which is well considered. It is didn't have the judges

(53:01):
in the nineteen eighties and now they do, and that
I don't want that to be a reason that we
ever accept a legal principle or reject illegal principle. And
I Lee has accused me of being too much of
a formalist, and I really am, but I think you
should stick to your principles. I see this with state standing,

(53:21):
with progressives loving state standing when there's a Republican in office,
and conservatives loving state standing when there is when there's
a Democrat in office. I will say I'm consistent on
state standing across administrations. I hate it most of the time,
but you know, I find it really sad when people

(53:45):
change their principles based on convenience rather than something much,
much deeper and more profound.

Speaker 1 (53:51):
So let me clarify something, because I certainly didn't intend
to convey that. At the end, I sort of gestured
it a possible story. Is the story that you hear
among you know, the left, is that they control the institutions,
and they were on the ends, they were on the outside,
they're on the end. But the story I tried to
tell before I said that as a possibility that people

(54:12):
say is quite different.

Speaker 4 (54:14):
Right.

Speaker 1 (54:14):
I think your principle can be that you think neither
the executive branch nor the judiciary should be adventurous in
its interpretation of the law. They should stick to a pretty,
you know, a textual interpretation, and that an activist judiciary
in the nineteen eighties was not doing that very well
and hampering sort of the better interpretation of those among

(54:36):
the executive branch, and that over forty years, it just flipped.
Because it's true Republicans prefer the interpretation, but there could
be a principled reason that they that they do that
right because they think textualism is just intellectually the correct
answer for whatever reason. But that brings me to another
question for you, Tara, actually, which is you know, Brian
at the end CEITI rejects literalism, and I was hoping

(54:59):
you could say more about the variance of textualism that
you described, because how is your formalist strict textualism different
than literalism, I guess is my question. And I'd like
to seize on the Brown and Williamson example because you know,
I don't know that that John Manning is right about that.

Speaker 2 (55:18):
Right.

Speaker 1 (55:18):
So it's true if you take a literal interpretation of
the terms drug and drug delivery devices, it could include
you know, nicotine, tobacco, cigarettes, and so on. But then
you look at the rest of the statute, it's like,
wait a minute, if it really includes this, then the
whole scheme doesn't work for cigarettes, because the whole point
of the FDA is it approves drugs that are safe

(55:38):
and effective for their intended therapeutic use, and cigarettes are
never safe and effective, right, and so they'd have to
be misbranded or right, So the whole structure of the
act would sort of fall apart. And then you look
at it and you say it's ambiguous. It's ambiguous, and
then one of the tools that you know, you don't
need to use major questions at that point, by the way,
but you could use elephants in you don't have to.

(56:01):
It was a small part of the opinion in Brown Williamson. Right,
But that all sounds like textualism to me, right, it
doesn't sound like rewriting the legislative. The legislative bargain Schoolly
of course couldn't say that because he was hamstrung by
the Chevron framework. So he says stop it at step one.
He had to say it was clear and unambiguous, when
of course everybody knows it was ambiguous, and he was

(56:24):
just advancing what he thought the best reading of the statute, right,
but clear away the Chevron framework, and then just read
his opinion without Chevron. Just to O'Connor, sorry, you clear
away that the Chevron language in that, and that's like
a perfectly textual opinion. Right, So what was wrong with
that opinion? I guess is another variant of the question too.

Speaker 6 (56:45):
Wow, So there's a lot there.

Speaker 8 (56:46):
So I've said in multiple articles that semantic context overall
structure is really important. To have an article about the
use of juditual precedent to help help clarify meaning, which
is something many many textualists use. And I'm talking about
use of digital precedent to figure out the meaning of

(57:08):
words as well as dictionaries.

Speaker 6 (57:11):
So I can commend you to my assorted articles explaining.

Speaker 8 (57:14):
Why why it's not literalism on Brown and Williams and
you know it's it's it's interesting. I uh, I always
thought it was a purposivist opinion the way the way
the core goes through the analogy, it goes goes through
the analysis. As John points out, they barely talk about
the text. And I think it's important that it's an

(57:35):
O'Connor opinion, right, it's it's not it's not scally, although
he signed on. And I think it's possible one could
write a better opinion in Brown and Williamson, which is
kind of what I hear you saying, sketching out a
possible opinion, but that that opinion was very light on text,

(57:56):
very heavy on post enactment, legislative history, legislative histor, very
heavy on purpose ofsm and how it could not possibly
make sense for the.

Speaker 6 (58:05):
FDA to have that authority.

Speaker 8 (58:07):
And there's a lot to that right, like the FDA
had not exercised that authority. Like from a from a
purposist perspective.

Speaker 6 (58:13):
Branda Williamson makes a lot of sense.

Speaker 8 (58:14):
But I think the actual analysis there, analysis there, and
then they have something to do with the the author
right was not was not very textualist.

Speaker 6 (58:23):
And you know, I think what we're seeing in.

Speaker 8 (58:28):
In debates over statutor interpretation and debates over textualism is,
you know, the reality that when you adopt a particular
approach to interpretation, you're not always gonna like how it
comes out. A case that for me is really really
hard is King versus Burwell involving the Affordable Care Act right.

(58:51):
The challenge there would basically undermine the entire statue. That's
a statue that I personally think does some good stuff.
I'm maybe the only one in this room who thinks that,
But I still to this day think Justice Scalia had
it right in the interpretation. I don't like that result,

(59:12):
but I think that's the correct textual result. That's what
I thought while it was being litigated, that's what I thought.

Speaker 6 (59:17):
After it came out.

Speaker 8 (59:19):
And you know, I've had people try to explain to
me how state can mean something different than what it
appears to mean.

Speaker 6 (59:26):
But I think that's really hard.

Speaker 8 (59:28):
And you know what I think is that, like, there
are times when my interpretive method is going to reach
decisions that I don't like.

Speaker 6 (59:36):
I think that's how statutor interpretation should work. I think
that is how laws should work.

Speaker 8 (59:41):
And it disturbs me to no end when I see
people always trying to kind of fudge the interpretation on
the left and the right to get to the result
that they want, rather than just acknowledging. Hey, you know,
my method actually leads to a place I wish it didn't.

Speaker 1 (59:57):
We have about twenty eight minutes before you are allowed
to have a drink, so we'll have some questions. Mike,
go ahead.

Speaker 4 (01:00:09):
Yeah, So I guess one comment and then one question,
So it's complicated. I think, why why Chevron declined on
the right? Uh? As someone who's been on the right
and always been against Chevron from the nineteen eighties, Uh,

(01:00:33):
maybe I'm a little bit in a different situation here.
But but first of all, I guess this was pointed out,
you know, it was it wasn't just a Republican or
a conservative position. Pat Wall was a very big proponent
of Chevron in the DC circuit. My understanding is that

(01:00:54):
that board pushed against it, and so, you know, there
there was a kind of mix on all that. I
think actually some of what's going on was just different understanding.
You know, maybe it's too academic a view of it,

(01:01:16):
but you know, I think Aditya bomb Zai's article was
was really important showing the importance of the two canons.
Uh People had misunderstood that they thought there was a
history of of deference, that that wasn't just general difference.
There was also a misunderstanding on some people that these

(01:01:39):
mandamous cases were were deference cases as well. Uh So,
and just the sort of general formalism. I think people
kind of understanding that, yeah, words and meanings and and

(01:01:59):
and uh you didn't need deference to to to solve
these to decide these cases. You know, to some extent,
Chevron had legal realist roots in it. Uh So, anyway,
that's that's you don't even if uh uh you view

(01:02:21):
Alan's argument as being about uh political results, which I
know Alan doesn't. I don't think that's the only possible explanation.
My question is, so prior to the A p A,
we had these cases Gray versus Powell and Hurst that

(01:02:47):
were mixed question cases, and the Court Chief Justice Roberts
mentions those mixed question cases, but then when he gets
to saying what the new rule is, he kind of
doesn't go into that. And it's just really a question
and I'm not sure really, I'm just curious how people,

(01:03:10):
how people on the panel would predict do you think
those mixed question cases will be fought to con you know,
the Supreme Court when it gets to it, will we'll say, oh,
mixed questions get deference. I don't think there's the right
answer to that in the sense that we you know,
the opinion is kind of very much ambiguous, But I'll

(01:03:32):
be curious to know what people think.

Speaker 1 (01:03:36):
Have initial reaction or.

Speaker 7 (01:03:43):
Well, I'm not sure what the Court's going to say,
but I think whether the Court says something explicitly or
it might not be explicit, but I think implicitly, I
think the lower courts at least are going to give
more deference to these mixed questions, because, as I think

(01:04:07):
the dissenting justices pointed out, a lot of them involve
really technical issues and really implicate agency expertise. And I
think courts will really would really be putting themselves out
on a ledge and be exposing themselves if they really
took a strong role in deciding some of these issues

(01:04:28):
of word meaning. And you know, interpretation is always resolvable.
The Court was right about that in little bit right,
But that doesn't mean it should always be resolvable in
the same way by courts. I mean, you have the
if you look at Voyd for Vegnus doctrine, which is
kind of having a resurgence right on the Supreme Court,

(01:04:50):
all of those statutes could be interpreted by the Court,
and you have kind of similar terms that are have
been interpreted by the Court. But instead the Court has
made a determination in those cases that the language is
to general right. Congress hasn't done its job. It's unlikely

(01:05:13):
to do that in the administrative context, maybe for good reasons,
but maybe the Court, I think, at least implicitly, is
still going to have that same idea that maybe it's
not for courts to worth all these issues and maybe
agency policy choices, so instead of avoiding the statute, it
will be instead a kind of a question of agency

(01:05:37):
policy expertise. So I don't know if it's going to
happen explicitly, but I'd be very surprised if it didn't
happen implicitly.

Speaker 3 (01:05:44):
Yeah, I'll say, and the mixed questions, I agree with you.
The Court was a little bit unclear reference Hurst and said, well,
there it is, right, and then and those are the
difficult ones, right, And I think you know context where
it can come up, and maybe we're skinmore might be helpful.
I'm not sure if I want to be to skidmore,
but I'm I'm gonna do it. Where it might be helpful.
Is there's an assumption that the agency took a part

(01:06:07):
in drafting the legislation. That's generally true, right. Anyone that's
worked on the hill knows that there's agency details that
are there. And if perhaps there is some sort of
contemporaneous and continuous uh interpretation of what some sort of
very technical term means, that perhaps Miriam Webster is not
helpful in defining right. Judges can look to that to

(01:06:29):
the extent it's persuasive. And I think on the questions
of mixed questions of mixed fact and law, you know,
they don't always have the benefit of a miiky, but
it's a time where and I don't want to you know,
the question is next we need to.

Speaker 1 (01:06:43):
Have some sort of regulatory Dowbard.

Speaker 3 (01:06:44):
I'm not trying to go down that road, but where
the court will take the agency's explanation of what the
term should mean to the extend it's persuasive, Just like
Skidmore says, perhaps give it respect because the agency was
presumed right. And if I think if you read in
some of the court's opinions, it says this, I've taken
part in interpreting the statute, and then consider what opposing
council has to say. I mean, if the agency's interpretation

(01:07:05):
is ridiculous, or if it will cause the agency to
exceed the statutory bound that Congress clearly set, then the
court could say, yes, we see skeed Moore, but we're
still going to go with what the amiki, with what
the individual says.

Speaker 1 (01:07:17):
But how that's going to play out.

Speaker 3 (01:07:19):
I think you're probably correct that in the lower courts
particularly on the defining technical terms. That's how I think
about it a lot of times, like what a real
technical term means, or when someone does something unreasonable in
a certain field or something like that, you are going
to see that level of deference, and I think it'll
probably be invoked through skidmore. I just wonder as the
case is percolate up, particularly to the Supreme Court, which

(01:07:39):
I think should take a lot more of these, how
they're going to approach it.

Speaker 1 (01:07:43):
And I'm not sure we know quite yet if I
can take a step at this too. It's a great question,
and I don't know what the answer is, but it
strikes me. I don't want to sound too much like
Justice Briar here, but leth this might be a spectrum
by which I mean take some cases where the word
system in West Virginia VDPA, here are two possible meanings,

(01:08:03):
and the statute actually resolves this is a system the
technological process in the planet n You might disagree with that,
but it's there are certain terms that that's the kind
of inquiry where we can actually fix the meaning. Then
there are things like reasonable, which is actually nobody disagrees
on what reasonable means. Just everybody disagrees about what is
in fact reasonable or not right. So it's that is
a delegation of policymaking authority to the agency. And it

(01:08:26):
strikes me that the mixed questions that you're referring to,
what is a producer? You know, I think that was
the great case, what is an employee? Or to take
another example, what's you know? Congress is actually much more
specific when it talks about this, but like family and
immigration context, Like we know certain things are obviously family,
you know, immediate nuclear family. We know things are not family,

(01:08:49):
no marriage ties, no blood ties. Okay, what about first cousin,
second cousin, third? Okay, Well, all of a sudden, those
terms like employee, producer, of family will produce a set
of results that clearly included and clearly excluded or just
included excluded, doesn't have to be clear. You could resolve
that question with interpretation, and then there might be some
space where between those two ends of precluded options and

(01:09:13):
included options. You know, there's a range of permissible policy
making choices, no different then a range of what's reasonable.
It's just it's going to be much narrower in that
range than if the delegation is do what's reasonable right,
and it's gonna be much broader than if you have
a word like system, you know, or in my opinion, drug,
but people disagree about that. So it's it just falls

(01:09:33):
somewhere between those words, those terms and the you know,
the stuff of our and the stuff of state farm
that Kevin not described in his Kiser concurrence. I would say,
it's just my best guess is what they're going to
do with it. And having to have a reaction from you,
I just wanted to thank you Justice Pryor, and.

Speaker 8 (01:09:53):
I'll just say thank you for thank you for offering
thoughts on the provocative question I pose, because that's very
helpful on the on the mixed questions. I anticipate very
different answers from the lower courts, and this is what,
as I said, lower Bride invites right, a lot of
different approaches, and I suspect different courts of appeals are

(01:10:15):
going to try to figure out different things to do.
It's very much along the lines of what happened after
Heller and McDonald and the lower courts. And I think
there's a real question how fast how willing is the
Supreme Court going to be to take up these cases. Again,
there are lots of areas where I say, you know,
it would really help if the Supreme Court would take.

Speaker 6 (01:10:33):
This up and provide some guidance.

Speaker 8 (01:10:35):
This may be an area where they're not going to
be too too keen to figure stuff out and kind
of leave it to the lower courts. And so I
think we're going to have kind of a cacophony of decisions.

Speaker 3 (01:10:45):
And I could we shouldn't let Congress off the hook, right,
I mean, to the extent that Congress is putting out
these terms that are too vague and that courts are
all over the place. I mean, perhaps Congress should legislate
more clearly. And obviously I'm a probably a bit of
an extremist up here that I think we should bring
back the non delegation doctrine and we should really hold
Congress to what it should do. And I think the

(01:11:06):
objection that you're probably going to hear as well, how
do you expect Congress to have all the technical expertise
to do all these things, to engage in it? And
I think two responses is one, I fully endorse increasing
the budget and pay for Congressional staff, bringing more folks
in helping, you know, because anyone that's been on the
Hill knows that everyone just cashes out.

Speaker 1 (01:11:25):
And they take all that institutional knowledge with them.

Speaker 3 (01:11:28):
So I think Congress would expand that. And then the
other answer is vertical federalism. It's a feature, not a bug,
that the Federal Congress wasn't meant to regulate the vast
majority of things that implement, you know, impact everyone's individual lives.
So perhaps Congress should get out of the game on
some of those things if they're not able to be
clear about what a term that can shift billions of
dollars in an industry one way or another might mean, yes, sir.

Speaker 2 (01:11:51):
Yeah, So Eric, you start out talking about the dilemma
of small businesses confronting the awesome power of government, and
fortunately your client somehow paid, someone paid yourself, someone paid
the costs to defend that client, glory the client. That's
some sort of outside support.

Speaker 1 (01:12:10):
And now we're talking.

Speaker 2 (01:12:10):
About a lot of issues that are going to be
litigated by very expensive lawyers as they clarify what the
loper mean. So let me suggest you know, the Equal
Access to Justice Act was intended to they use that
exact same language to protect small businesses from the kind
of government overreach that you exactly you exactly introduced your
presentation with. And let me just suggest that a cleaner,

(01:12:33):
quicker way to protect those very small businesses would be
to strengthen the Equal Access to Justice Act so that
it doesn't allow agencies to get out of the liability
of paying for the attorney's fees and costs of defendants
if they can show their underlying case was substantially justified,
forcing the small business.

Speaker 1 (01:12:50):
To relitigate the case.

Speaker 2 (01:12:51):
But if you just got rid of that and you
had a clean rule, I mean, you could do a
lot more justice for small businesses and reining in the bureaucracy.
Talk about reigning in the deep state by this kind
of change, without this kind of expensive litigation that's going
to wind up back up the Supreme Court. I know
that's a little bit of a soapbox, but that's sung
all round tall six o'clock on a Friday.

Speaker 1 (01:13:11):
But soapbox is clean.

Speaker 2 (01:13:14):
It's done, and it's it's been hearings on the Hill
to justify it, and it doesn't involve a lot of
Supreme Court interpretations and everything else is changing.

Speaker 1 (01:13:22):
Two words.

Speaker 3 (01:13:23):
Unless there's a reaction, Oh, go ahead of you I
agree as a former public interest let to get or
I'd love for work he's shifting. It would allow people
to bring more cases. But yeah, no, I think it's
a good suggestion.

Speaker 9 (01:13:35):
Mark Sidenfeld from Florida State University.

Speaker 4 (01:13:39):
I don't know.

Speaker 9 (01:13:39):
Maybe this isn't a professoral I'm not a federalist and
I'm not a textualist.

Speaker 1 (01:13:44):
And nobody's perfectly well.

Speaker 9 (01:13:46):
I'm going to go even one another. In nineteen eighty three,
nineteen eighty four, when Chevron came down, I was clerking
for Judge Wald and I've been a proponent of Chevron since,
and I'm gonna I was reacting to some of the
reaction there. Maybe I mean, it's it's a done deal,
so maybe I shouldn't. But you know, okay, first, was
Chevron unworkable? Well, again, Walker and Barnett showed that it

(01:14:09):
worked pretty well at the lower courts. There were some issues,
but the Supreme Court what what what bugged me about
the case was they didn't even try to give guidance
on most issues to the lower courts the way they
did finally in Kaiser. So for example, I mean, I
know how I would do it. I'm not saying I'm
the right way. But first of all, the Supreme Court

(01:14:30):
in need set up a weakness in the in the
Chevron doctrine by saying that it was based on congressional intent.
Brier and Scalia said, that's a fiction, but it's a
convenient one. But anytime you set up a fiction that
you're inviting judges later do there are other ways of
justifying Chevron that are consistent with the the eight the

(01:14:55):
APA section seven O six, which is maybe it's a
self restraint rule by the judge justices themselves, right, they
know that there are policy implications that are going to
be influenced by ideology, and maybe if they're if they're
really kind of into the kind of notion that judges

(01:15:17):
shouldn't get involved in, that they were constraining themselves and saying, look,
we should defer to the agency because at some point
there when we get to a point, where is that
point they could have given guidance on that. How clear
is it have to be? Whatever theory of statutory in
tepretation you use. Let's say you think, well, if I
use that theory, there's a certain percentage that I'm right,

(01:15:38):
and a certain percentage I'm wrong. Maybe maybe fifty five
forty five is ambiguous, but maybe ninety ten is not.
And you know now I'm putting numbers on there. But
they gave no guidance on that except for Scotia, who said, look,
if you think it's the best meaning, judge, you should
vote that and say that it's clear. I don't know
if I agree with that, but at least there was

(01:15:59):
a direction and if the courts had done that and
then and then the thing. The one thing I did
like about Low or Bright was it made clear that
that even after in the in those issues where there's
discretion to the agency, after the agency, the court says,
ACU of the authority to do this, apply the UH
the arbitrary and capricious, I call it hard look test

(01:16:21):
at step two. That's the real constraint I think on
agencies that would have made a big difference UH in
the workability and what happens at UH. At Chevron, what
agencies do Chevron. It's much more flexible. It gives the
agency the chance to to say what the policy implications are.
But they got to do it right, and the court
never even approached that. So I think, and I've written

(01:16:45):
about this. If you had it as a if you
saw it as a rule of judicial self restraint, with
a better defined step one and hard look review at
step two, I think it would have worked a lot better.
Uh and and and avoided the question of have it
because right now you know you can say, well, you know,
judges do really well when there's no agency involved. Well,

(01:17:08):
they have no choice. They've got to resolve the question.
There's no agency involved, right, we don't know if that's
good or bad. But when there are policy implications on
you have the agency, why not rely on the branch
that has more expertise, more political accountability. You might not
think it's enough, but the courts certainly don't have enough.
I mean, so, you know, maybe I'm beating a dead
horse here, but it seems to me that there are

(01:17:30):
lots of ways that Chevron could have been modified that
would have made it even more workable, even though I
thought it was pretty workable.

Speaker 1 (01:17:37):
Yeah, I have a response.

Speaker 3 (01:17:38):
I think to talk about workability of Chevron, think about
lower Bright itself.

Speaker 1 (01:17:43):
There's two cases.

Speaker 3 (01:17:44):
There's lober Biden Relentless at the District Court and lober Bright.
The District Court judge ruled on step one at the
DC Circuit, the court ruled on step two in the
district court and relentless the District Court ruled on step two.
And at the Circuit court the first Circuit said it
was using chevron, but would tell you which step it
was using. Right, and this sort of I mean, this
is in one case with one issue, we have courts

(01:18:06):
going every which way on it. Right, did they all
come out to the same outcome? Sort they all ruled
in favor of the government. That's where they got right.
But I think, I mean the case itself is a
microcosm of what was happening across the lower courts and
the fact that the Supreme Court disengaged from it. There's
a case, you know, the year or two before loceral
Bright was decided, one of the Beserah cases that split
five to four on a really hard statutory interpretation issue,

(01:18:29):
and the court didn't use chevron.

Speaker 1 (01:18:30):
And if any case ever called out for.

Speaker 2 (01:18:32):
It was that.

Speaker 3 (01:18:32):
So I think the decades of experience showed that it
was not working. And I think it was because judges
were so eager to find ambiguity under a rock. And yes,
it is true that that Walker shows that the judges
would rule for the government this vast percentage of time.
But in that exercise of judicial humility, the judges were
seeding the ground of statutory interpretation to another branch, to

(01:18:54):
the executive brands. So, yes, judges were being humble, but
the executive branch was grabbing all sorts of power. And
I think the growth of the administrative state not I
don't think Chevron is the sole cause of it, but
I think a lot of it can be traced to that.
And I think the proof of how the administrative state
has grown in perhaps folks disagree on how big it
should be, is because of the unworkability of Chevron, and

(01:19:15):
because it.

Speaker 1 (01:19:15):
Gave judges a really easy out. They didn't have to
do the hard work. Let's just defget it over with
and move on to the next case. And Brian or Tret,
do you have any reaction to that particular thing. I
guess I would ask because it's your colleague reminds me.
I guess I want to ask your colleague. But you know,
I clicked for judge once who asked a question, and

(01:19:36):
the letigan asked a question back of the judge. He said,
I'm the one who asked questions here. I don't want
to make this mistake, but Justice Kagan's dissent in lober
Bright provides kind of the guidance you know that you're
talking about. But my question is still, how is she
saying anything different than the majority opinion? And I just
I guess I haven't heard a persuasive answer to that question.

(01:19:57):
And if it's not that difference, you know, I don't
understand why the sky is falling because of this. It
seems to me that they have provided the guidance, which is,
judges decide for themselves based on all the tools of
statutory interpretation. And if you can count to two judges
on a Court of Appeals for the proposition that the
meaning is X, great, if you can count to two
for the proposition that actually this is a permissible construction

(01:20:19):
because it's a term like reasonable or it's it's not
you know, within the anyway, then that's your answer. Then
you decide it's a policy making question like in Chevron
itself in my view, and I think that's fine. I
think that's the guidance that you were looking for. I
think the majority provided it, And if you don't think
a minority provided, I think Justice Kegan provided it. I
just think she's saying the same thing, and I still

(01:20:39):
haven't been convinced that she's not. But anyway, David and
then Lee and then we'll go drink.

Speaker 10 (01:20:46):
I want to give a quick anecdote relative to that
change between the eighties and nineties and the present. And
I my take on it from having some experience with
conservative inte like academia, was there really was simply a
change in opinion because there was more information. One point,
at Boston College, some folks Charles Kessler from Claremont came

(01:21:07):
and gave a talk explaining the rise of the administrative
state and explained in detail the history of ideas that
informed the growth of administrative agencies, including you know, non
delegation of powers, deference to them, etc. And one of
the faculty members, who I would call sort of a
course sort of mid twentieth century Republican American, was indignant

(01:21:31):
because he said, I'd never heard this before, Okay. And
what I take from that is, I think there was
a certain generation of Republicans, or just generation of Americans
after nineteen thirty seven that are so steeped in the
progressive triumph is so great in the United States, that
that's simply the accepted baseline, and knowing the history, say

(01:21:55):
that there was, in fact a revolution was obscured, and
there was a time when people were doing these sort
of things talking about administrative state where there was really
was just like a weird thing that a few younger
conservatives were doing that many others just simply were unaware of.
Like the case you mentioned, I frequently brought to the

(01:22:15):
students that there's an angry dissent in that case by
Justice Roberts, who says, what are we doing? This is
a complete reversal of how judges have always been done things.
We're deferring to stature. But those people all died, and
they really died in a way that their voices don't
really have to get sort of picked up again. And
it's really not until the nineties where you start when

(01:22:35):
I started hearing that sort of thing and it was
received as kind of weird in conservative intellectual circles.

Speaker 1 (01:22:43):
We have multiple narratives of the conservative legal movement and
its intellectual arc over the last one hundred or so years.
So you have a menu to choose from. In the audience,
leave please.

Speaker 5 (01:22:52):
I'm going to throw one more in, or maybe two
more in. I think there was always I think there
is some tension between you know, a couple of justifications
for originalism and textualism. One of them is, you know,

(01:23:13):
we got to figure out what the law is, and
the other is we want to not let we want
to minimize judicial discretion, and we want to respect the
democratic branches, and those don't always point in the same direction.
And I think that, you know, to some extent, Scolia

(01:23:37):
was sort of a believer in both of them. But
I think, as you know, over time he became more
more aware of the tension between the two and the
need to choose, and I think that was one reason
he was heading in the anti Chevron direction by the
time he died. I mean, it never quite in its

(01:24:00):
way into an opinion, I think, but I do think
that was going on with him and with you know,
and I think with some other people as well. I
think the other thing is there, you know, related to
what Eric said, but in a sort of milder form
of it. There it was a little bit of a
dynamic thing where if you announce to agencies that they

(01:24:24):
have this discretion, they may behave differently than before you
announced to them that they have this discretion. And certainly
my experiences when I was working in an agency and
my experience on the hill, you know, was was that
awareness of that discretion was important and it would lead

(01:24:47):
you to be more adventurous in you know, the rules
that you might write because you kind of knew that
you were going to get the benefit of the discretion
and of the of the difference. Uh you know, whereas
you know, if you didn't know that, you might be
a little more cautious about it. So, you know, I

(01:25:09):
do think there was kind of an and on the hill,
you know, somewhat related to Elon's point. You know, Yes,
your first choice would be to have clear language doing
what you wanted, but your second choice would be, well,
if I can't get that, I'm going to go with
the ambiguous language and hope that the agency will go

(01:25:30):
my way and write legislative history that we'll try to
encourage that result.

Speaker 3 (01:25:37):
And uh, so.

Speaker 5 (01:25:41):
You know, I think there's the congressional dysfunction problems and
so on too. So I mean I think that that
and the the congressional dysfunction, coupled with the awareness that
the agent you might be able to badger the agency
into doing what you want, you know, leads to a
more thought pathological system in some ways, So I think

(01:26:04):
I think some of that as well.

Speaker 1 (01:26:08):
Uh.

Speaker 5 (01:26:09):
I guess that does lead me to an actual question,
which is does that does this kind of dynamic business
effect how you think about whether whether it's a whether

(01:26:35):
whether the major question doctrine really is a plausible linguistic
canon as opposed to, you know, perhaps a way of
coping with with some of this dysfunction.

Speaker 1 (01:26:51):
I think those to me, But since we're almost out
of time, that's if anyone has any final reactions, and
I will take a stab at at least question.

Speaker 7 (01:26:58):
Yeah, I make a quick comment that maybe we're talking
to each other will apply to both Lee and Marks.

Speaker 1 (01:27:09):
We're answering your questions over there.

Speaker 7 (01:27:14):
The agency aggressiveness I think is a plausible theory, but
I just I think it's not clear because Chevron was
so arbitrarily applied that I think it didn't really give
agencies enough guidance to kind of know when they could
be aggressive and when they couldn't be. And I agree
Mark with this idea that Chevron was successful in the

(01:27:37):
sense that it promoted judicial restraint in legal realism. But
again I go back to the arbitrariness that I don't
think it was, you know, in a success in that respect,
I think the doctrine just ended up being so arbitrary.
Agencies would win, but you would never know as in

(01:27:59):
the appropriate circumstances, and I'm not inappropriate circumstances, and it's
still depended on judicial ideology and the political party of
their judges.

Speaker 1 (01:28:09):
Tarah, if you have any final thoughts.

Speaker 8 (01:28:11):
I'll just say thank you Lee for those for those thoughts,
and I just want to reiterate, in the lower courts,
Chevron was not nearly as messy as you're talking about it.
It was a disaster in the Supreme Court, like they
were all over the map, but in the lower courts.
I worked at the Department of Justice during the George W.
Bush administration. Chevron was our friend and we could rely

(01:28:33):
at it, and I litigated the courts of Appeals. So
I and I think the Barnett Walker study really supports
what I experienced as a lawyer. It was it was
clear in ways that Eric would not like, but it
was clear.

Speaker 1 (01:28:45):
Yeah, being on the other side of the government doesn't
feel as good. I'll be honest, you know you're going
in there, and you just I lost a lot of cases.
I lost all and it felt bad.

Speaker 8 (01:28:55):
Just just one anecdote, I gotta I got a question
last fall, Did Chevron ever matter? I actually had a
litigant say in their opposing brief to me, the statue's ambiguous,
and I just smiled because we were going to win.

Speaker 1 (01:29:12):
Well, we are a minute over and we are standing
between you and drinks. So I will use the opportunity
to dodge Lee's question and to thank you all for coming,
and to thank the panelists. Thank you, MHM.

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