Loper Bright and the Next Steps for Chevron Deference at the Supreme Court

This Term, the Supreme Court will hear Loper Bright Enterprises v. Raimondo—a case concerning judicial deference to agency interpretations of ambiguous statutes. Pursuant to Chevron v. NRDC and follow-on cases, courts defer to agency interpretations of ambiguous statutes. Loper Bright offers the Court an opportunity to abandon Chevron deference entirely. But the phrasing of the Question presented in Loper Bright also presents an off-ramp for the Court, allowing it to keep Chevron’s framework intact. How the Court resolves Loper Bright will have massive implications for administrative law. On this panel, three distinguished administrative law scholars discuss the task before the Court in Loper Bright and the future of Chevron deference.

Featuring:

Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Prof. Ilan Wurman, Associate Professor, Sandra Day O'Connor College of Law, Arizona State University
(Moderator) Eli Nachmany, Former Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit

Episode Transcript

(00:01):
Welcome to TeleForm, a podcast ofthe Federal Society's Practice Groups. I'm Nick
kas Barrett, Vice President and Directorof Practice Groups at the Federal Society.
For exclusive access to live recordings andpractice group TeleForm programs, become a Federal
Society member today at fedsoc dot org. Hello everyone, and welcome to this
Federalist Society virtual event. My nameis Sam Feenler, and I'm an assistant

(00:25):
director of Practice Groups with the FederalistSociety. Today we're excited at host lober
Bright and the next steps for Chevrondeference at the Supreme Court. We're joined
today by Professors Nicholas Bagley, ChristopherWalker, and Alone Werman. Our moderator
today is Ellie Nachmani. Ellie wasmost recently a law clerk to Judge Stephen

(00:47):
Minashi of the Second Circuit. Hegraduated magna cum laude from Harvard Law School,
where he was editor in chief ofthe Harvard Journal of Law and Public
Policy. Prior to law school,he served at as a speech writer to
the US Secretary of the Interior andas a domestic policy aid in the White
House Office of American Innovation. Elliereceived his BA summa cum laude from NYU

(01:12):
with a degree in sports management.If you'd like to learn more about today's
speakers, their full bios can beviewed on our website fedsock dot org.
After our speakers give their opening remarks, we will turn to you the audience,
for questions. If you have aquestion, please enter it into the
Q and A function at the bottomof your zoom window, and we'll do

(01:33):
our best to answer as many questionsas we can. Finally, I'll note
that, as always, all expressionsof opinion today are those of our guest
speakers and not the Federal Society.With that, Ellie, thank you very
much for joining us today, andthe floor is yours. Thank you Sam
for that kind introduction. I appreciateit. Since the Supreme Court granted assert

(01:53):
in Low or Bright Enterprises against RAYMONDO, many in the administrative law world have
wondered whether the Court will use LoperBright to depart from its decades old precedent
in Chevron v. NRDC. Therule of Chevron has come to be understood
as followers. In cases concerning ambiguousstatutes that federal agencies have interpreted, Federal

(02:14):
courts are bound to defer to thoseagency interpretations so long as they are reasonable.
Our conversation today will center on Chevron'sfuture at the Supreme Court. And
we have a terrific panel today ofthree leading academic lights and administrative law.
You can read their full bios onthe FEDSOC website, but I'll introduce each
one briefly. To start, wehave Nicholas Bagley of the University of Michigan

(02:37):
Law School. Professor Bagley is professorof law in Michigan, where he specializes
in administrative law and health law.Next, we have Chris Walker, also
of the University of Michigan Law School. Professor Walker is also professor of law
at Michigan. His research focuses primarilyon administrative law, regulation, and law
and policy at the agency level.We also have Eln Morman of the Day

(03:00):
O'Connor College of Law at Arizona StateUniversity. Professor Worman is an associated professor
of law at ASU, where heteaches administrative law and constitutional law. I
want to give everyone an opportunity tomake opening remarks before we get into questions,
so we'll go in alphabetical order here. Professor Bagley, you'll kick us
off great well, Thank you forthe invitation. I'm really happy to be

(03:21):
here. You know, we're goingto talk a lot about the ins and
outs of Labert Bright, but Ithought i'd use my comments to take a
step back and put the case,situate the case in the broader context of
the conservative legal movements effort to limitthe scope and reach of the administrative state.
Part of the reason I want todo this is because I think,
in some ways loper Bright's significance isin the discourse maybe a bit overstated.

(03:47):
The anti Chevron impulse that the petitionersare drawing on has already borne significant fruit.
Partly that comes from older cases likeMead. It comes from cases like
the Major Questions or cases creating themajor Questions doctrine we've seen in the past
couple of terms. Less obviously,Chevron has really been indented by the relative

(04:12):
unwillingness of courts to find ambiguity agencystatutes. So in a way, the
case may not be that significant becauseChevron may be kind of dwindled into close
to irrelevance whatever the court may chooseto do in its eventual decision. But
I do want to notice just theway that lober Bright forms part of a
broader campaign in the federal courts tocurb the power of federal administrative agencies.

(04:38):
You see this with the flirtation withthe non delegation doctrine. You see it
with skepticism of independent agencies, mostnotably the decision about making the head of
CFPB subject to executive control. Yousee skepticism of Alj's and Lucia and maybe
this coming term in Jerksy. Yousee embrace of an embrace of novel legal

(04:59):
theories like the Fifth Circuits claim thatthe cppd its financing scheme violates the Constitution.
You see it in arguably a riseof hard lookd review, whether we're
talking about the Trump administration's decision towithdraw a DACA or to allow the Department
of Commerce to ask about citizenship andthe census. More generally, you just
see a mood of skepticism that theSupreme Court is bringing to agency cases.

(05:25):
You don't just see it in thecourts, You see it outside the courts
too. You see it in anembrace of legislative proposals like the Rains Act
that would add stiff procedural burdens toagency action requirements for formal rulemaking. Noticing
comment, provisions for guidance, explicitcongressional approval from your rules, et cetera,
et cetera. So where does thispush to circumscribe the authority of the

(05:46):
administrative state come from? I seeit arising from two very different sources.
The first is a kind of constitutionand exile idea, the idea that the
federal administrative state is basically a giganticconstitutional miss Agencies violate the core principle of
the separation of powers. And youknow, maybe you can't declare them all
to be unconstitutional, but anything thatcurbs their authority is constitutionally virtuous, at

(06:14):
least as a second best matter.I don't find that account of the Constitution
compelling, either as a historical matteror as a matter of constitutional text.
Agencies are created not in the teethof the separation of powers, but through
the operation of the separation of powers. And what Congress can make, Congress
can unmake. And that's all theConstitution requires. Beyond that, the Necessary

(06:36):
and Proper Clause gives Congress wide authorityto delegate powers as needed to carry out
its constitutional authority. In lo forBright, you see that constitutional argument manifest
in the idea that somehow a constitutionalabdication for courts to defer to agencies,
for courts not to say what thelaw is, you know, as an

(06:58):
original matter, that's just so.In fact, the courts had very little
to say about agency interpretation of thefounding, believing generally that the implementation of
the laws, including the interpretation thatis necessarily bound up in the application of
the laws, was primarily left toexecutive discretion. And by the same token,
nothing in the text of the Constitutioncompels Chevron's abdication. Congress is free

(07:24):
to delegate power to agencies to interprettheir organic statutes, subject to a very
weak constraint to the non delegation doctrine. And if Congress can delegate explicitly,
then it's not a stretch to saythat they can delegate implicitly. And Chevron
just supplies a rule of thumb forwhen that implicit delegation has been made,

(07:45):
which is to say that there arethese constitutional arguments lurking in the background,
and maybe you find them compelling.Lots of people do, but at a
minimum, they are highly contested andprovide a pretty contentious basis for rethinking a
fundamental part of the administrative state.You don't usually do that where there's significant
doubt about the wisdom or propriety ofa previous decision, Which just takes me

(08:07):
to think that the second big bucketof justifications for reevaluating Chevron defference is doing
most of the work here. Andthat is not a view about what the
Constitution does. It doesn't require.It's a straight up policy view, an
intuition that would be better off curbingthe authority of the administrative state. The
idea is, look, the federaladministrative state. It's too big, it

(08:30):
regulates too much with too little care. And if that's your view, then
it seems to follow pretty naturally thatif you can throw sand in the gears
to make it harder for the administrativestate to act, well, that's good.
That's good because the administrative state istoo big, and because if you
throw sand in the gears, maybeyou're going to liberate a private market.

(08:52):
And one way you can pretty effectivelythrow sand into the gears of an agency
is by empowering courts to or intendand double check what it is agencies do.
And the reason this works so wellis first because sometimes agencies do stuff
and they're challenged and the agencies lose, usually in cases brought by regulated entities.

(09:15):
But second, and I think moreinsidiously, agencies that fear losing in
court, that can make them defensiveand risk averse. It pushes them to
bulletproof their actions even in cases we'redoing so is not an especially good use
of resources. So, you know, the kind of sand in the gears
may have upsides and benefits. Maybeit makes agencies a little bit more careful,

(09:37):
but it also serves more generally asa tax on agency capacity, which
brings me to low or bright ifyou're just reading the headlines. Maybe a
tax on agency capacity to interpret andagencies on statutees. Maybe that tax is
worth imposing. After all, Congressis riven and with the rise of highly

(10:01):
ideologically sorted parties, it can't reallymanage to do a whole lot, especially
on the regulatory front. So we'vegot all these old statutes lying around,
we've got lots of pressure on theexecutive branch to make use of them,
at least when the White House hasa matter of political urgency under consideration.
And so we've seen over the lastyou know, three to four administrations and

(10:26):
stretching back to a lesser extent evenfurther, we've seen aggressive action to try
to use these older statutes to achieveyou know, politically salient end And when
you see those cases arise, it'stempting to think that we ought to maybe
push back on that executive branch opportunism. Maybe Chevron provides a tool to do

(10:48):
that. And so you see enoughcases of high profile things like the student
loan cases, or Dhaka or theeviction moratorium, the stuff that that we
endlessly write about and think about andtalk about, and viewed from that perspective,
you know, the temptation to curbthe authority of agencies to freelance,

(11:09):
or perception that they may be freelancingpretty strong. What I think that misses,
and the thing that worries me aboutLowberbright, is that it misses the
complexity and scope of the American administrativestate and all that it does outside the
limelight. So Loberr, right,is a case about boats, case about

(11:31):
fisheries. But I venture to guessthat lots of people on this call didn't
even know that such a thing asthe National Marine Fisheries Service even existed before
the lober Bright case came to ourattention. The government does lots of stuff
that we just don't hear that muchabout day to day. It runs Medicare
and Medicaid, buys airplanes, Itoversees drug development, to cut social security

(11:54):
checks, It operates a patent system, collects taxes. It restores the everglades,
it manages the electrical grid. Allof the stuff that government does,
by and large, it benefits uswhen government does that stuff well, and
we tend to suffer when government doesthat stuff poorly. So you do have
to ask yourself, for all thesecases that are outside of the limelight,

(12:16):
do you really want to be throwingsand into the gears? Do you really
want to green light the federal courtsto micromanage the day to day operations of
the American administrative state. Because rememberthat most of these agency cases never make
it to the Supreme Court. Theynever make a headline. It's the lower
courts that have to decide whether anagency has properly interpreted some intricate provision about

(12:41):
the operation of past reimbursement for Medicareadvantage plans. And a case like that
arises, I don't want some formerprosecutors, some big firm lawyers, somebody
was appointed for frankly more or lesspolitical reasons, maybe with an ideological acs
to grind deciding those kinds of questionsfor themselves, and I don't think most
of us do. But it's lowprofile cases like that that matter most when

(13:05):
you're thinking about the future of Chevrondeference. It's not the big, high
profile stuff that it gets the juicesflowing. The last thing I'll say is
that the assault on Chevron suggests tome that the conservative legal movements sort of
animating principle is that America works bestwhen it's government doesn't work that well at

(13:28):
all. That if there are waysto make it more complicated, more costly,
more difficult to act, to makeagencies more cautious and more defensive,
but those will those will conduce toour collective benefits. I think that's an
enormous mistake. I think that stuckin the past. I think whatever your

(13:48):
politics are, confronting the biggest challengesin the twenty first century is going to
require a government that's capable of doingbig things. That includes building new infrastructure,
installing massive new renewable facilities, constructingway more housing. It includes creating
and maintaining an industrial base that's capablenot only of creating vaccines and electric vehicles,

(14:09):
but also airplanes and military equipment.It includes collecting taxes and protecting the
environment and assuring stafe drugs and allthe millions of other things that government needs
to do. So I worry aboutthe bid of moving courts into a position
of more closely superintending the operations ofthe American administrative state. I don't think

(14:31):
it's good for the general public thatdepends on that state to function well.
And I fear that it's a terribleidea to invite the courts to further micromanage
the administrative state. And I fearlober Bright may be a continued move in
that direction. All right, soall I got thank you so much,
Professor Bagley. I will turn itover now to Professor Walker for his opener

(14:54):
for marks great So I am Iam like a late substitute for my casebook
off Kristin Hickman. I think theywheel us out because we're one of the
twelve members of the Federal Society thatare still judicially conservative in the traditional sense.
And so I'm going to give youthe judicially conservative case for keeping Chevron

(15:15):
deference, which you know, backin the day, we used to say
that the Court should play really limitedrole in when it comes to interactions with
the political branches. And when Chevronewas designed in nineteen eighty four to allow
the reagulan administration after an election tomake some environmental protection regulations more flexible for

(15:37):
industry, that was a really popularview. And so I look at it
through the lens of you know,what is the right approach for court to
interact with Congress, with federal agenciesand with the President. And KEM.
Barnetta and I filed an amicust briefin Loper Bright. They kind of became

(16:00):
ends and ends with story deciss Inother words, you know, Chevron is
a decision that is more than almostfour decades old. It's been repeatedly applied
thousands of times by federal courts.It's been relied on millions of times by
federal agencies and regulated entities, andby Congress when it has authorized and reauthorized

(16:25):
federal agencies to act over the yearsand created new agencies as well. It's
a bedrock precedent of administrative law thatseparates out the powers between courts, the
President, the White House, andCongress, and so when we look at
against the backdrop of story decisis,I mean, the pull of story decisis
here is probably at its strongest,and in particular because Congress has and can

(16:51):
get rid of Chevron. And inour brief we talk about how in the
Dodd Frank Act, Congress actually gotrid of Chevron in at least four different
ways. It replaced it with skidmore. It's also introduced legislation to eliminate Chevron
entirely that's never made it anywhere nearpassage. So suggests that Congress knows and

(17:11):
codifies and legislates against the backdrop ofthis precedent that's been on the books for
forty years. The empirical work thatlooks at what congressional drafters think, and
my work on what agency real drafterslook at. It's not a surprise to
us that have interact with us thatthe number one interpretive tool that congressional drafters
use and know, and that agencyreal drafters use and know is chevron difference.

(17:34):
More than any of the canons,more than anything else lest history,
any of that, Chevron is thetool that we know and we use.
And some of us on this callmight say, well that means we should
get rid of it. It's sopernicious. But that's a question of story
decisis. Coverers knows it, agenciesknow what they use it, and similarly
so do courts in the lower courts. Kemp Barnett. I've done a study

(17:56):
of eleven years, fifteen hundred decisionswhere the circuit courts apply Chevron deference to
kind of show the type of settledexpectations we have so congressionally acquiescence or codification
settled expectations among all the parties thatare involved in the regulatory state. And
then on the flip side, well, if it's completely wrong as an original

(18:18):
matter, if it's crystal clearance wrong, that could be a really good factor
to get rid of it. Itend to be really far out there when
it comes to statuary story to cisis. I think once something's been on the
books for a while and Congress doesn'tget rid of it, it's kind of
a done deal. But even forthose that aren't that far out there,
you've got to show that it waswrong as an original matter. And there's

(18:38):
been a great debate that maybe we'llget back into the Q and A among
scholars at the Shavonzai and John Duffyon one side, and cast sunstated Ron
Levin on the other. I've readall of that, I've looked at all
the original sources, and I haveto say, like, at best,
the conversation's muddled, the historical recordsmuddled. And when it comes to a
doctrine the Congress could get rid ofthat is now viewed as an interpretation of

(19:02):
the Administrative Procedure Act, that's justnot a record that proves that the Court
got it wrong. As original matternineteen eighty four, when a unas with
court created you know, recognize asChevron doctrine. And the last one I'd
say is, well, if it'sactually unconstitutional, of course that's a really
really strong reason to get rid ofit. And the constitutional arguments here don't

(19:26):
hold any water at all. Thereare kind of two flavors of arguments.
One is that Congress over delegates becauseof Chevron. Well, if that's the
case, then you have the nondelegation doctrine and go there. The other
argument is that it intrudes on judiciary'spower to say what the law is.
Well, if that's the case,we have to get a federal habeas review,

(19:48):
and then more than two hundred otherstatues that strip courts of jurisdiction entirely.
It would be a whole different worldwe live in if Congress cannot limit
the discretion that courts have to reviewwhat another branch government does. So that'll
be a really dramatic change that Idoubt this court or any court would be
willing to take on. So ifyou don't have a constitutional argument, you
don't have a historical argument that's ironclad, and you have four decades of congressional

(20:12):
agency and regulatory practice pointing the otherway, it sounds like that's not a
doctor and that a court should begetting rid of just because a few people
don't like how one or two casesturn out. On the policy front,
I'll just briefly preview this again.I'm a judicial conservative. I don't like
courts appearing to be political or actingpolitical. I think, as Fetsox says

(20:34):
in his mission statement, judges shouldjudge and not make policy. Turns out
that that's what you care about.Chevron's a powerful tool for separating judges from
their policy preferences, as can't denyand Christina Boyd, a political scientists,
a Judgia show through our data set. It removes both conservative judges and liberal
judges from their policy preferences. Itdoesn't perfectly do it, of course,

(20:56):
polity still matters and judging, butit does a pretty good job of removing
that, and so I see thatas a really big value for keeping.
It also, not surprisingly, atleast to a lot more uniformity in law
across the nation, where you don'thave, as Justice Scalias said, thirteen
different circuit courts reaching different decisions.And I'll end kind of where Nick.

(21:17):
Some of the themes Nick had is, if you're looking at the larger picture
and you are concerned with bureaucratic overreach, and I am. And if you
are concerned with presidents doing one toeighties when they're elected and doing major things
with old statutes, and I amthe course already doing those addressing those issues.

(21:37):
We have a more robust Step one, maybe two robusts, but we
have a ROBUSTEP one. There's asuper majority of the Court that wants to
make Step two more rigorous, witha more of an arbitrary, capricious review.
And of course now we have thenew major Questions doctrine that goes after
the biggest things. So what's leftis Chevron for minor implementation details and quite

(22:00):
frankly, for deregulation. This isthe Fensow call is kind of throw it
out there. Very unlikely the deregulationis going to be caught up in a
major question. And so if yourgoal is to have an administrative state that
functions, that's politically accountable, thatleverages expertise, that doesn't address the major
policy questions that Congress should, anddoes allow for a new president to pull

(22:22):
back to reinforce liberty and not havethe agency's overreach, Chevron is your friend
and not your enemy. But moreimportantly, it doesn't matter. It's not
the role of the Court to getrid of a doctrine that in terms the
APA. That's the role for thepolitical branches, for Congress to do,
and I expect that's hopefully where theCourt's going to go in over bright,

(22:45):
thank you, Professor Walker, withexcitement about the diversity of views on the
panel, I'll turn it over toProfessor Warman for his opening remarks. Well,
thanks for having me, and Iguess I'll try to make the views
more diverse than I was initially planningon because I was also coming from this
a bit a skeptical perspective, andso to give you a sense of where

(23:06):
that's going. Before I'm going tochange what I was going to say to
argue a bit with Professors Walker andBagley, I want to talk after I
do that a bit about what questionsare these really, because I think it
matters like are these really interpretive questions? Are they policy questions? Can just
entangle them. I think that's missingfrom the conversation and will determine how much
work Loper Bright does as the judicialdecision. And the second thing I want

(23:30):
to talk about is public and privaterights. Professor Walker said, you know
something very strong about the constitutional justificationor there's no evidence unconstitutional to give the
punchline away. I think that's obviouslytrue when it comes to public rights,
and I think that's obviously wrong whenit comes to private rights. At least
that's my strong statement that I'll tryto sort of briefly defend. But before

(23:52):
I get to that, I guessa precursor question is what kind of questions
are these? And so to thee that these really are interpretive questions,
I you know, I really haveno problem getting rid of Chevron difference if
that's really what's going on. So, for example, there's this case I
can't remember what it was, whatit's called, where the B I A

(24:15):
got defference where you can deport evena lawfully prep present immigrant, right,
someone who's lawfully present but not acitizen, if they're convicted of a crime
involving child abuse. And someone wasconvicted of child endangerment under California law for
driving intoxicated with the child and thefront seat without a seatbelt on. Okay,

(24:38):
child endangerment, no doubt. Childabuse probably a stretch, you know,
there's neglect, abandonment, like thestatute had various things, but it
didn't say endangerment. And I'm sorry, I don't give you know, whatever
the expression is about what the BI A thinks about the meaning of child
abuse. It's just I don't thinkthey have any sort of special expertise in

(25:00):
interpreting language, including language and sometimescomplex statutes. In this case, it
wasn't even that complex. It wasn'tunique to immigration. You know, it
is child abuse mean, and I'msorry, Like the courts should not have
deferred, And I don't know whatthe justification is to giving this kind of
difference to interpretive questions. You know, Professor Bagley started off by saying that,

(25:23):
and actually both of them started offby talking about the early history.
And I don't know, I've lookedat it too. You know, I
find a ditch of Bumsay's work morepersuasive on this. In the falling two
respects. I mean, there's nodoubt that longstanding and contemporaneous interpretations of statutes
by the executive branch got weight,because that's just evidence. You know,

(25:45):
you're sitting sixty years later as atcourt, interpreting something and acted sixty years
ago. If the executive branch agencytasked with administering that statute interpreted it for
sixty years from the beginning a certainway, well, if I were a
judge, that would give me pauseif I'm about to do something different,
right, and by that same token, I would be skeptical of an agency
who tries to switch a longstanding interpretation. I'm not. This has nothing to

(26:07):
do with deference. It's all aboutevidence and wait about what the meaning of
the statute is. And Professor Walkermentioned you know he's a judicial conservative.
I don't really know what that means. And you know Chevron arose because of
judicial adventurism in the nineteen seventies,particularly on the DC Circuit. Look at
the Chevron case, and you know, the DC Circuit concluded that the bubble

(26:32):
policy was not allowed in non attainmentareas because the purpose was to bring them
into attainment and not allowing the bubblepolicy would more aggressively and quickly bring non
attainment states into attainment. I mean, yeah, that's a plausible interpretation of
the purpose. But purpose is doinga lot of work there, so it's
pretty adventurous. And I guess thequestion is, over the last forty years,

(26:53):
do we care more about judicial adventurismor executive adventurism. If you look
at a lot of these cases,especially the major questions cases, the executive
branch is pretty adventurous with a lotof these old statutes. Now, I'm
just a conservative conservative, I guess, or a textast. I think everybody
should stay in their lane. Courtsshould stay in their lane, Congress should

(27:14):
stay in its lane, and executivebranch agency should stay in their lane.
And I actually don't have an exanti answer as to what is the best
arrangement in terms of judicial review doctrinesfor kurbs to do that, because of
course, if courts are more aggressivethan they risk falling into adventurism. And
so I don't know what the answeris. So let me propose what I
think is going on in these inthese cases. And this brings me back

(27:37):
to the sort of the two pointsthat I wanted to make. So the
first is, you know, Isaid, if to the extent these questions
are really interpretive, get rid ofChevron. I have no problem with that.
But in all of these Chevron cases, in my case book, in
Professor Walker's casebook, is there reallyinterpretive? Are there really interpretive questions going
on? I mean, so inKaiser v. Wilkie that our deference case

(28:02):
so interpret you know, deference toagency's interpretation of its own regulation, basically
Chevron just to regulations. Justice Kagancorrectly said, Look, sometimes the lawgist
runs out. Think about that.If the law has run out, what
are you interpreting? I mean,you interpret as much as you can to
conclude that the law has run out. But at that point, is it

(28:23):
really an interpretive question that the agencyhas done something once the law has run
out? Or is it an interstitialgap filling policy making? Like question look
at Chevron itself. It defined astationary source as any structure, facility,
building, or installation okay that emitsa certain amount of air. Well,
what do you do when you havea plant that has multiple emitting sources?

(28:45):
The statute seems to define each oneas like a structure I guess as a
stationary source, or a plant couldbe conceived of as a facility or an
installation. It just doesn't tell youwhat to do in more than one definition
applies. In other words, itseems to be just a gap app that
requires interstitial lawmaking, legislative policy making. Let me give you another example.

(29:06):
Barne, I don't know how tosay this case Barnhart maybe Barnheart v.
Walton, Barnard v. Walton insane, totally insane case where deference was given.
The question was, you know,if you have an injury or a
disability, okay that's expected to lastat least twelve months, you are entitled
to Social Security dis disability benefits foryour inability to work. What did the

(29:29):
agency go on and say? Theysaid, well, we're going to impose
the twelve month requirement on the inabilityto work rather than the impairment. Even
though everybody agreed that the statute thetwelve months modified the impairment. So if
your impairment could be expected to lastmore than twelve months, you're entitled to
disability for six months of not workingor two weeks of not working. This
is not an interpretive question, right, The court said, However, well,

(29:52):
yes, the twelve months modifies theimpairment, not the inability to work.
But ordinarily, so the statute issilent. Ordinarily silence creates ambiguity,
or doesn't solve ambiguity. It createsambiguity. It's insane. This is not
an interpretive question. Maybe the agencycan impose a new requirement, an additional
requirement on top of that statutory provisionthat says, well, we are going

(30:17):
to require, as a matter ofpolicy that the inability to work be more
than twelve months. But that's amatter of the agency's legislative rulemaking power,
and it's nothing to do with theinterpretation of that specific provision. So what
I'm trying to say is Chevron,the problems that led to Chevron arising aren't
going to go away when Low Probrideis overturned. And what I want to

(30:37):
propose is a lot of those problemsaren't really interpretive questions, they're actually policy
making questions. They're gap filling questions. I think in Kaiser, Justice Kavanaugh
said this is the stuff of statefarm rather than our or rather than Chevron,
and I think that's probably true,but to the extent that there are
a large number of Chevron cases thatreally do involve interpretations. I'm just not

(30:59):
convinced that any sort of judicial conservatismor constitutional conservatism somehow compels us to let
courts do that, which I guessbrings me to the second point, which
is what is the constitutional answer?And I was a bit disappointed with the
with the briefing in this case.I think Professor Bamsay actually had the best
brief in terms of lost scholars onthis, because I think public rights and

(31:21):
private rights really matter to the questionof whether this is at all constitutional.
I'm not, you know, sowhether the APA was intended to confer this
authority. You know, my concernis can Congress, if it did confer
the this authority of deference in theAPA, couldn't do that constitutionally? And
the answer is yes, in mattersof public right and a lot of what
administrative agencies do it involves public rights, social security, administration, disability benefits,

(31:45):
veterans affairs. And so why isthis constitutional? Well, because it's
sort of well accepted among formalists,originalists, and I think functionalists right that
you don't need Article three courts toresolve matters of public right. They can
be resolved exclusively in the executive branch. Because you know many reasons for this,
but the principle one is sovereign immunity. If you know, the government

(32:06):
wrongfully denies you welfare benefits, youknow, Okay, who do you sue?
Well, I sue the government.Okay, Well I haven't consented to
be sued. I've got sovereign immunity. Okay. So now, of course
they have consented to be sued inthe APA. But the point is that
historically these could be resolved without acourt. And if they could be resolved
without a court, then the greaterpower to resolve it entirely in the executive

(32:27):
branch presumably includes the lesser power tohave whatever degree of judicial review minimal maximal
that you want in the statute.When it comes to matters of private right,
you know, your life, liberty, or property. Okay, no
agency is sentencing anybody to death.Okay, but you know, Lucia,
the SEC prohibits him from engaging inthe securities industry for the rest of his

(32:47):
life at three hundred thousand dollars fine, That strikes me as a matter of
private right. Now we might disagreeabout that what the limit is, but
on the assumption that it's a matterof private right, life, liberty,
or property, then I'm sorry.Like, just like we don't give a
US attorney, we don't defer toa US attorney's interpretation of the campaign finance
laws when he's bringing a campaign financelawsuit. I don't think we need to

(33:09):
defer to an agency's interpretation. Idon't think it's constitutional to defer to the
executive branches interpretation of the laws thatCongress enacts. I think part of the
judicial power is to djudicate dispite underexisting law, and you have to decide
what the law is for that.Now, if you know, modern proponents
of the administry've said, are rightthat all of these cases are actually public

(33:29):
rights. You know, Osha asec. Then you know, again,
overturning lowal Bright won't do much work. You know, Congress could require difference
in a broad swath of cases.But if that's wrong, if actually a
lot of what is now justified aspublic rights cases are actually private rights cases,
that's more of a problem for Chevrondefference. And so this is all
the way of saying that the SupremeCourt, whatever does in Low or Bright,

(33:52):
is not thinking about the private publicdistinction. But I don't see how
it can avoid doing that if it'sgoing to address the constitutional question, and
when it does addressed, it wouldhave great ratifications depending on what it says
public and private rights are. Iguess there's the darkesty cases talking a bit
about that, but it's probably notgoing to be decided on those grounds,
but I don't know about that.But anyway, that's that's all I want

(34:13):
to say. So also skeptical thatreversing Chevron will do much for these reasons,
because again, a lot of theseare public rights, and a lot
of it is not interpretive, butto the extent it really is private rights,
and it really is interpretive. Youknow, I definitely disagree with my
co panelists about, you know,the constancial basis for deferring in those situations.
Excellent, Thank you so much,Professor Roman, and I encourage audience

(34:35):
members, please drop your questions intothe Q and A box. I want
to start with Professor Walker, becauseyou really have hit home on the story
decisis reasons for retaining Chevron. Now, of course, the particularized holding of
Chevron related to you know what Professorroman And talked about, right, the
bubble concept and the meaning of stationarysource. Some have argued, actually,

(34:58):
what's an issue in case like lowerRange's not necessarily the holding of Chevron,
but rather a rule of statutory interpretationthat the case established. And so I
was wondering, is that a meaningfuldistinction to draw? And is Chevron maybe
not entitled to as much story decisiveweight as an ordinary statutory interpretation holding would
be for that reason? Yeah,yeah, and no, I don't find

(35:22):
those arguments very persuasive. And soyou know, Paul Clement and Petitioner's brief
kind of gives you the his versionof that. He says, you know,
this is a procedural interpretive rule.It's not a statutory interpretation. It's
not a or a doctrine against whichstatutes are drafted. And I just think

(35:45):
it's really wrong headed. The examplehe gives is, this is a lot
like the procedural rule that the Courtcreated in the qualified immunity context. So
for about a decade, the Courtsaid, lower courts, when you have
a case that evolves off at community, you have to reach the constitutional question
first, and then only then ifyou find that there is a constitutional right,

(36:07):
do you ask whether that right wasclearly established at the time. And
Justice lead On two thousand and nine, in a case called Pearson says we're
getting rid of this rule. Itwas a disaster. Lower courts were making
huge messes of constitutional law. Andthere's no strong story decisis poll here because
this is just about internal court operations. It doesn't affect the outcome of cases.

(36:31):
It's not something that Congress could legislateabout. It's our own internal rule
that we have decided just isn't anygood. And the pardishers say that is
just like Chevron. And my responseis, that's not remotely like Chevron.
Chevron affects outcomes in cases. Congresscan legislate away Chevron they have, Congress

(36:52):
can add Chevron, and they do, and so like it's just not remotely
closed. I think the better analogy, and this is a different fetsaw call
and is to qualified immunity itself asa substantive matter that I've argued with Aaron
Nilson elsewhere, is also entitled tostature storg decisis effect. And that's really

(37:14):
the debate Paul Clanett wants to have. I think the more proper understanding is
this is a substantive It has asubstant effect on outcomes and cases, unlike
Pearson, you know, and it'ssomething that Congress could legislate away. I
do think there's some arguments is thisactually an interpretation of the APA that have

(37:35):
some sway Chevron itself don't even mentionedthe APA kind of mysteriously, but Meade
very squarely recognizes as an interpretation ofthe APA. But if it's not a
direct interpretation of the APA, whichhonestly, I don't know how it couldn't
be, because Section seven of sixof the APA sets forth the scope of
judicial review. But if it's not, it still is something that Congress has

(37:58):
legislated against the backdrop every time itreauthorizes an agency statute, which it has
done hundreds of times since nineteen eightyfour. So it's still a bedrock kind
of idea of how statutes are interpretedin ways I think a dramatics dramatically different
than a procedural rule and an interpretiverule that only affects internal court operations.
Thanks Spressor Walker, Professor Bagley,I'll turn to you next. I want

(38:20):
to talk about there's the question presentedin Low or Wright, which allows for
it seems two possible outcomes. Soit asks whether the Court should overrules Chevron
or at least clarify that statutory silenceconcerning controversial powers expressly but narrowly granted elsewhere
in the statute does not constitute anambiguity requiring deference to the agency. I

(38:43):
wonder what you think of that,possibly as an off ramp and maybe this
distinction between statutory silence and statutory ambiguity. Yeah, I think you know.
So. I've always struggled a littlebit with this as the fallback question because
it seems to me, in animportant way to be the question in Chevron
cases, which is, what doyou make a congressional silence in when it

(39:05):
delegates brought authority to an agency tointerpret it to implement a statute, and
Chevron supplied a default rule. AndI've you know, if I if I
could point to the heart of Chevronthat's the heart of it, and the
deference sort of follows, you know, falls out from that. So,
you know, off ramp, Ithink I might characterize it differently. I
think if they do that kind offall back approach to Chevron, I think

(39:29):
that's really tearing the heart out ofthe doctrine. That's that. I think
that's quite That's much more likely tobe what the Supreme Court does than a
sort of full frontal overruling of Chevronin any kind of dramatic way. You
know. I think the case thatI point to here is the City of
Arlington against that CC case where youhad a statute a little bit like this

(39:51):
one where you know, clearly gaveauthority to do some things, it didn't
quite clearly give authority to do otherthings. And the agency said, now
we should get reference. Here inthe court said listen, when we're trying
to figure out whether Congress meant todelegate interpretive authority to you, you don't
just get to do that in akind of blunderbus wholesale way and just to
say like, yeah, I getdeference because it touches on telecom. But

(40:15):
you have to be more refined andspecific and ask Is this the kind of
thing that we think Congress really meantfor you to interpret in the course of
administration in a way that would bindthe courts? Did it mean to delegate
interpretive authority? And City of Arlingtondidn't supply a good set of guidelines trying
to figure out when silence equates todelegation and when it doesn't. And I

(40:39):
have real questions about the tractability ofthat kind of inquiry. I think the
Court is going to confront that questionin this case. But I do think
the easiest way of the court toresolve this case is listen, whatever we
think of Jeff Chevron, more generally, whatever we think of silence in general.
In this particular statutory scheme, Congressdelegated authority over when you could tell

(41:06):
both captains to pay for monitors,and they didn't do it in this particular
case when we were the other.And we take that silence to be pregnant,
and therefore we're not going to differ. I think that's the narrowest holding,
and it will open up the samekind of canniborms the City of Arlington
opened up. You know, Willit move the law a lot? I
doubt it but we'll see, andthey could be much more explicit that silence

(41:29):
is never to be taken as evidenceof delegation. I think that would be
much more aggressive and to my mind, much more concerning. Orman. I
want to go to you next,and I want to talk a little bit
about, you know, the distinctionyou draw between public rights and private rights.
And I think you talked earlier aboutthere's a lot of the Chevron cases

(41:52):
where the agency is interpreting something onwhich it's not expert I wonder what you
think the role of an agency's expertisemight be in a case in which it
is interpreting a statute that touches onprivate rights, but it's bringing expertise to
bear on what the meaning of aparticular statutory term is, that it would
have particular eyed knowledge about sure,And I guess I would say at least

(42:16):
two things to that. The firstis if I'm right that most of these
questions aren't actually interpretive questions, soI'm fighting the premise of your question.
Okay, I get that, Butif these aren't actually interpretive questions, then
of course the agency expertise has arole. And maybe I didn't sort of
bring that point home in my openingremarks. But if these aren't actually interpretive
questions, then of course you shoulddefer. If the law has run out,

(42:37):
then of course you should differ,assuming there's a legislative rulemaking power,
or that it's a gap that hasto be filled, because then it's a
you know, reach Chevron. Theysay, when questions of interpretation really center
on the wisdom of an agency's formulationof policy, okay, great, but
not all interpretive questions or policy questions. Some people think that that's wrong.

(42:59):
Some people, the legal realists thoughtthere was no distinction, okay, but
I don't know that formalists believe that. And so if you believe there's a
difference between making law and interpreting law, okay, then you can disentangle those
things. And when the law hasrun out, when interpretation is done,
and the question is, okay,is this with you know, the question
is the scope? Use the interpretationto figure out the scope of the agency's

(43:20):
delegated authority. The statute allows thisoption, it allows other options. What
the agency chooses among those options,the bubble policy or not the bubble policy,
you know, the inability to workor for twelve months or not?
Right, then that's that is apolicy question, as Kavanaugh said, more
the stuff of state farm. Okay, so then agency expertise can bear there.

(43:42):
Now if it's truly interpreted, okay, of course, like a long
standing and contemporaneous interpretation is entitled towait because the people charge with administering the
statute, especially if it's in thepast and you know, you're you,
the court are standing sixty years later, presumably knows something about it. But
it wouldn't apply to change interpretations,right, It would be contemporaneous interpretations,

(44:06):
and which would be fortified if they'reyou know, longstanding. But aside from
that, I would say, what'swrong with Skidmore. But the thing is,
I also don't know if Skidmore's deferenceOkay, you know, deference only
matters if the court would do somethingdifferent. Well, you know, Skidmore
says you defer to the extent ithas the power to persuade. Well,
it's okay, I'm not persuaded.I won't defer. How's that not just

(44:30):
evidence of the meaning of the law. Like the administrator of the National Labors
Relations Act or whatever may know somethingabout this, And I'm going to listen
carefully to his or her views.And you know, so it's not quite
the same thing as a persuasive litigantsbrief, you know, the way that
that Justice Scalia often ridiculed skidmore anda skidmore anachronism. I do think it's

(44:53):
a bit more than that. IfI were judge, I wouldn't just trust
litigants. I would have some amountof trust that the agency kind of knows.
There would be a presumption that theyknow what they're doing. But again,
I don't know that that's the samething as difference. That's just listening
to smart people who might know aboutthis issue, and I would take it
into the interpretive as an interpretive input, if that makes sense. Russeller Walker,

(45:15):
do you care to respond? Yeah, I just want to point out
that Elon's articulation is what we callChevron deference. I mean, that's the
whole idea of Chevron is a Stepone, you figure out if the law
is clearer, if the law resolvesthe ambiguity, if not. Step two,
the agency has space to regulate.And I think we are adding on

(45:35):
Now, Kate and gets her way, and I think she has because she
has a minority of the court thatat step two. There's an APA arbitrary
and a precious review there, andI mean so so in my mind,
that's that's it, and so we'reall we're all good. I do think
that I lost my No. Ido think if that's the view of Chevron,
and you go back and look atthe historical sources, it's really money

(45:59):
on that front. And even Adishanotes a few cases from the nineteen twenties
where the court does seem to kindof say something similar. Again, I'm
not saying Chevron the two step existedbefore the APA. No, no,
no, but some version of deferencebeyond just contemporaneous and longstanding was there.

(46:21):
And so I don't know. Iguess we're all on the same boat now.
I have to say not all judgesare, though. I mean Judge
Kenthlytch here in ann Arbor gave andtalk about ten you know, seven years
ago. Seeing he has never everfound a statute ambiguous under Chevron. I
went back and looked at the dataset, and sure enough he hadn't.
Including some things like regulating the publicinterest, you know, fair and reasonable
terms to me that really don't havemeaning outside of some additional law implementation.

(46:45):
So I guess we're all on thesame page. So let's call it a
victory, and three cheers for Chevronright along two cheers, And the third
cheer that I withhold is I dothink there's one important difference. You know,
If one is okay, we'll figureout what the best meaning of the
statute is and that's what we gowith. And if the best meaning of

(47:05):
the statute leaves a range of optionsfor the agency and then at step two
it's just arbitrary and capricious review,then I'm all on board with that.
The problem is, there are manycases that involve interpretation where there is a
best streating and the court says weare not going with the best streating.
We are because that's what Chevron's allabout. That's what I disagree with.
How many situations does that actually occurin? I don't think you know,

(47:29):
writing with your kid without a seatbelt is child's abuse. I think it's
endangerment, and I think those aredifferent things. And is the abuse ambiguous
with respect to it? Of course, of course a non crazy person could
think that you are abusing the child, but that's not what ordinary people think
child's abuse is. And so yeahto the extent that there are those cases

(47:50):
where there's a divergence between best meaningand what the agency does. I don't
know if there's a lot of cases, but that's the cheer that I'm withholding.
I want to bring in Professor Bagleyon this because you know, there
was another comment from earlier that ProfessorWarman had made kind of about Okay,
well, if we overrule Chevron,it might not make much of a difference,
or at least, you know,if the Court adopts the public private

(48:13):
rights view, then some of thecases might come out similarly, or you
know, at least it might nothave as big of an effect. And
I was wondering, Professor your thoughtson if the Court does go hull hog
and overrule Chevron, or at leastreject the reasoning of Chevron, what the
implications might be. Yeah, Ithink I want to you know, and

(48:36):
I had worded this in my openingcomments, but Chris really nailed it too.
I think that the consequences for bigcases are likely to be very muted,
both because Chevron is already tacitly,if not quite overrule, at least
narrowed, and because of the riseof the major questions doctrine. I also
think it's important to keep in mindthat Need and cases like it have already
narrowed the remit of Chevron pretty considerablyover the last fifty years. So for

(49:00):
the big cases, I think thateffectively muted the thing that I'm worried about
the smaller cases. And you cantell a story about how actually it won't
matter that much that the intuition thatElan is offering that like there are lots
of policy questions that courts oughten deferon, will end up animating. Moving
the courts to simply adopt the agency'sinterpretation is a reasonable one on stuff within

(49:23):
their competence son, even if theystruggle with less inclined to defer on pure
interpretive questions. However, you dividethat line between interpretation and policy, you
know a lot of the times theagency is still going to win. But
the worry that I have is twofold. First, I worry a lot that

(49:45):
the tone of skepticism the cases likeLow or Bright are signaling to the lower
courts is going to lead them tobe more aggressive. If I'm going to
be a little more polemical, littlemore arrogant about their role in the constitutional
structure, it's going to lead themto be more aggressive, especially when they're
reviewing interpretations offered by the president ofthe opposing party than the one that appointed

(50:07):
them. And that that kind offorward leaning is not the results strictly of
lober Bright, but of a broadermood of skepticism that's taken hold in the
federal courts that lober Break could accelerate. I worry about that. I worry
too that the effects are you know, I think as lawyers were tempted to
look at particular cases and say,like, did that case come up differently

(50:30):
than it might have otherwise? Andthen we count them up and we sort
of try to figure out, like, what was the effect based on the
cases that we see. We forgetthat the cases that we see are like
they're the tip of the iceberg ofwhat the administrative state does, and that
the rules that we devise have enormousimplications for agency how agencies go about their
business. So, if you're anagency official and you're thinking to yourself,

(50:51):
am I going to do a rulemakingright now? Am I going to actually
try to give some clarity to theregulator industry? Am I going to actually
try to achieve a political objective thatI think is widely Do I think there's
some benefit to be gained relative tothe costs of imposing this new rule,
Like I think it's important for theAmerican public? Am I going to do
it well? Now you're going tosay to yourself, listen, before I
could at least get Chevron difference ifI did everything right, I go through

(51:13):
notice comment, I take all thecomments, I cross all its, I
dot all my eyes. Now Idon't fucking know, Like what am I
gonna do right? Like go throughthis process, spend a ton of time
and resources and attention, and Ihave limited resources and time and attention on
my hands already. I've got lotsof stuff that I could be doing.
Am I going to put it towardsthis effort that I think will help the
American public? Or do you thinkI'm just going to shelve it and maybe

(51:35):
do some lower profile things that Icould get away with that could help on
the margin and maybe me look goodand like my clippings. That's the effect
I really worry about. And Ithink that we have and I think the
movement to undo Chevron does not takeseriously seriously enough the challenges of governing in
the twenty first century, and thecomplexity of the task that agencies have in

(51:57):
front of them. So that's mytwo cents. I want to turn to
Professor Walker because you had mentioned earlierthat you're in a unique and interesting position
that you know, you're you're somebodywho is a judicial conservative and at the
same time, you know, supportiveof Chevron, or at least you know,
not in favor of overruling it.You know, at one point you

(52:21):
were not exactly in the minority,right, I mean, Chevron at one
point, as you mentioned, hadbeen supported by conservatives, were at large
in particular Justice Scalia perhaps the greatestor one of the greatest conservative jurists of
all time. But now you know, I think you'd acknowledge a lot of
the energy on the right in legalcircles is around overruling Chevron's rule of decision.

(52:44):
Can you talk a little bit abouthow how we got here and why
that might have come to be?I think he's calling you old Chris.
I know I feel I do nosuch thing the older generation. You know,
I have to say on this front. If you go on Twitter or
you read a lot of large viewarticles on Chevron, like kind of the
intellectual history, which is we're justcalled history. You know. The really

(53:07):
cynical take is that conservators now controlthe courts and so we might as well
roll through it. But that actuallydoesn't track at all with history. I
mean, the dislike with Chevron,happened long before Justice Kennedy had retired.
You know, this is a mucholder move, and I think we saw
really intensify in the second term ofthe Bond administration. I can imagine a

(53:29):
number of different reasons why. Imean, one is Justice Kennedy said in
his last opinion on the Court,the lower courts submit a mess of Chevron
to some degree, I think myper work shows is not quite as a
mess as Justice Kennedy, but Ithink the Supreme Court and others view that
it does include encouraged judges to bea little bit lazier about what a statute
means. I think the larger explanationmight be the second term of deministration,

(53:53):
where we saw kind of more aggressivepresidentialism with presidents trying to go to along
without Congress. That continue to theTrump administrations continue the Biden administration as well,
where presidents are really pushing old statutesto do new things in aggressive ways
that we never thought of. AndI think that's one reason why one major

(54:14):
reason we see the major questions doctrine. And the third reason, whether it's
real or just perceived, I thinkthe fact that we see Congress not legislating
regularly, not revisit these statutory delegations, not even reauthorizing statutes they're required to
be authorize. Again, I wantto say real or perceived, because I

(54:35):
think actually Congress has done a lotduring the first term of the Biden administration.
But I think that's also another thingthat's made kind of Article one.
You know, Congressional concervative is concernedis that the idea is that courts defer
to agencies because Congress will revisit statutesif they don't like what the agency is
doing. It's harder to see thatas actually being how Congress interacts today.

(54:57):
So I think those are the threemain reasons. I don't buy the theory
that courts are captured, you know, they concerned as you know, run
the courts. Now that I thinkthat is largely true is like a but
I don't think that's the reason whywe got Chevron, Like skepticism. I
think a skepticism because lower courts weren'tapplying it perhaps as well as the Spreme
Court hoped, because Congress isn't reallydoing the role that concertives Article one Concertives

(55:21):
thought, and because presidents are justrunning wild and doing really aggressive things with
statutes that are are really not naturallyfit to do what they're trying to do
with them excellently. I go toProfessor Wrman here for a final question before
we wrap up. You know,you mentioned earlier about the possibility that a
good amount of what agencies are doingis policymaking as opposed to interpretation, and

(55:45):
assuming that the court takes that view, and maybe it takes that view in
cases that involve grants for agencies todo what is reasonable or to do what
is appropriate or in the public interest. Yeah, I wonder, if not
different, how do courts police thosesort of agency policy making activities. Yeah,

(56:06):
I mean I think it would justbe this arbitrary and capricious standard,
which is not much of an answer. I mean, that's the duct frinal
answer, but it's not much ofan answer because when you really look at
the various tests, you know,arbitrary and capricious review versus substantial evidence versus
legal deference. I mean, they'vedone studies on this and turns out that

(56:27):
the agency ferments rate is basically thesame. But my only point is that
I do think there's a difference betweenyou know, denovo review of an interpretation
versus differential review of interpretation, andso to the extent those questions really are
interpretive, I do think that there'scash out there. But yeah, for
the rest of it is just arbitraryand capricious review. And as Chris said,

(56:49):
isn't that what's going on anyway ina lot of these step two cases,
you know, read brand X,what's going on at step two?
Is that just arbitrary capricious review.Whether the agents ces designation of Internet service
providers as telecommunity tele communications carriers asinformation service providers can does it allow them

(57:10):
to circumvent, you know, thepurposes of the statue to circumvent this idea
that telecommunications providers should be able tohave should have comic carry regulations by just
packaging it with something like voicemail.I don't know. Is it not just
arbitrary and capricious review? And thenit's fine. I think that's highly differential
to the agencies, as it shouldbe if they're truly policy making questions.

(57:32):
Excellent, well, Professor Bagley,Professor Walker, Professor Worman. I am
so grateful to the three of youfor taking the time today for an excellent
conversation on chevron on low or bright. The cour is going to be considering
it this term. I regret thatthere are a few audience questions we didn't
have occasion to get to. Icould go on for hours with the three
of you onvious subject, but well, we'll have to end it here.

(57:55):
So thanks to the three of you, and thanks to the Federal Society for
us a forum today to have thisimportant discussion about administrative law. Thanks everyone,
Ellie, thanks so much for moderatinga great conversation, and on behalf
of the Federal Society. I wantto thank our panelists as well for your
time and your expertise. Thank youto our audience for joining us. We

(58:15):
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us on all major social media platformsat fedsock to stay up to date with
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(58:36):
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