Loper Bright Enterprises v. Raimondo - Analysis of Oral Argument

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OPENINGS

The petitioner's attorney, Mr. Clement, focuses on the challenges imposed by the Chevron doctrine, particularly its impact on small businesses and individuals. He emphasizes the burden faced by his clients, small-scale commercial fishers, who are required to carry federal observers on their vessels and pay their salaries. This requirement, he argues, is excessively costly, consuming up to 20% of their annual returns, far exceeding the caps set by Congress.

Clement criticizes the lower court's deference to the agency's decision, which he views as an overreach of authority, particularly since the statute does not explicitly address who should bear the monitoring costs. He advocates for a de novo review of the statute, focusing on the best interpretation rather than searching for ambiguity.

Additionally, he challenges the Chevron doctrine's methodology, arguing it deserves less deference under the principles of stare decisis. He contends the doctrine is unworkable due to its vague threshold question of ambiguity and destabilizes reliance by enabling agency inconsistencies. Clement concludes by urging the replacement of the Chevron two-step with a singular focus on determining the best reading of the statute.

The respondent's attorney, General Prelogar, counters that the petitioner's characterization of the case as a fundamental question of separation of powers is too broad. She argues that the petitioner has conceded that Congress can delegate authority to define statutory terms and fill gaps, and that there is no constitutional distinction between express and implied delegations of authority. She suggests that the debate is not about the constitutionality of Chevron, but about whether it correctly identifies when a delegation has occurred. She also argues that the practical concerns about Chevron can be managed without overturning it, and that stare decisis should be respected.  

REBUTTAL

The petitioner's attorney, Mr. Clement, argues that the NMFS's rule is problematic because it is based on an implied delegation of authority, which he believes is not as clear or limited as an express delegation. He criticizes the Chevron decision for delegating interpretive authority and for not distinguishing between different types of statutory ambiguity. He suggests that traditional statutory interpretation is a better approach. He also argues that Chevron was a mistake and should be revisited, and that expertise does not necessarily require deference to the agency. He concludes by arguing that the Chevron doctrine cannot be modified without overruling Brand X, and that the Court should simply ask how the statute is best read.

THOMAS

1. Justice Thomas takes interest in the following issues:
  - The use of mandamus as a basis for deference.
  - The role of Congress in limiting remedies.
  - The separation of powers, particularly in relation to statutory interpretation and the role of the courts.
  - The implications of the Chevron v. Natural Resources Defense Council decision on these matters.

2. Justice Thomas asks Mr. Clement to comment on the government's argument regarding the use of mandamus as a basis for deference. Mr. Clement responds by distinguishing between the limitation of remedies by Congress and the deference to statutory interpretation by the courts. He argues that while Congress can limit remedies, it is different from telling the courts to defer their interpretation of the law. He further criticizes the Chevron decision, arguing that it wrongly gives interpretive authority to the executive branch, which should only have implementing authority.

3. Justice Thomas's sentiment towards each issue seems to be one of skepticism towards the government's argument for deference based on mandamus. He appears to be interested in the separation of powers and the role of the courts in interpreting the law, suggesting a possible disagreement with the Chevron decision.

4. Justice Thomas's sentiment towards each party's position is not explicitly stated. However, his question to Mr. Clement suggests that he may be skeptical of the government's argument for deference based on mandamus. His interest in Mr. Clement's critique of the Chevron decision may also suggest a potential agreement with Mr. Clement's position that the decision was wrong.  

SOTOMAYOR

1. Justice Sotomayor takes interest in the following issues:
  - The interpretation of the Act and whether it authorizes the NMFS to promulgate the funding rule.
  - The distinction between recognizing discretion and recognizing delegation in the context of statutory interpretation.
  - The potential for change in technology and circumstances that may affect the interpretation of statutory terms.
  - The potential impact of Chevron v. Natural Resources Defense Council on the case at hand.
  - The potential for agency decisions to be arbitrary and capricious.
  - The potential impact of Chevron on legislative gridlock.
  - The interpretation of Section 706 of the APA and its relationship with Chevron.

2. Summary of Justice Sotomayor's questions and the attorneys' responses:
  - To Mr. Clement, Justice Sotomayor questioned the distinction between recognizing discretion and recognizing delegation, and the potential for change in circumstances that may affect the interpretation of statutory terms. Mr. Clement argued that Chevron fails to distinguish between these two concepts and that certain statutory terms have a binary interpretation.
  - To General Prelogar, Justice Sotomayor asked why Chevron did not address Section 706 of the APA and how to respond to Mr. Clement's interpretation of the statute. General Prelogar argued that Section 706 has never been understood to dictate a de novo standard of review for all statutory interpretation questions, and that there is no inherent tension between Section 706 and Chevron.

3. Analysis of Justice Sotomayor's sentiment towards each issue:
  - Justice Sotomayor seems to be skeptical of the argument that Chevron should be overruled or clarified. She appears to believe that the Act does authorize the NMFS to promulgate the funding rule and that Chevron provides a useful framework for interpreting statutory ambiguity.
  - She also seems to be open to the idea that circumstances and technology can change over time, which may affect the interpretation of statutory terms.
  - She appears to be concerned about the potential for agency decisions to be arbitrary and capricious, and the potential impact of Chevron on legislative gridlock.

4. Analysis of Justice Sotomayor's sentiment towards each party's position:
  - Justice Sotomayor seems to be more sympathetic to the government's position, as she appears to believe that the Act does authorize the NMFS to promulgate the funding rule and that Chevron provides a useful framework for interpreting statutory ambiguity.
  - She seems to be skeptical of Mr. Clement's argument that Chevron should be overruled or clarified, and she appears to disagree with his interpretation of the statute.  

ROBERTS

1. Justice Roberts takes interest in the following issues:
  - The interpretation of the Act and whether it authorizes the NMFS to promulgate the funding rule.
  - The application of the Chevron doctrine and whether it should be overruled or clarified.
  - The concept of statutory silence and ambiguity.
  - The application of Chevron to constitutional questions.

2. Summary of Justice Roberts' questions and the attorneys' responses:
  - To Mr. Clement, Justice Roberts questioned the interpretation of the Act and the application of the Chevron doctrine. Mr. Clement argued that the best reading of the statute favors his client and that the Chevron doctrine should not be applied differently in cases where the agency is a party. He also suggested that the Chevron experiment has failed.
  - To General Prelogar, Justice Roberts asked about the application of Chevron to constitutional questions. General Prelogar clarified that Chevron only applies to statutory interpretation and not to constitutional questions. She also defended the Chevron doctrine, arguing that it reflects Congress's intent and is useful in situations of genuine ambiguity.

3. Analysis of Justice Roberts' sentiment towards each issue:
  - Justice Roberts seems skeptical about the interpretation of the Act and the application of the Chevron doctrine. He questions whether the Act is ambiguous and whether the Chevron doctrine should be applied in this case.
  - Justice Roberts also seems interested in the concept of statutory silence and ambiguity, suggesting that these concepts may be relevant to the interpretation of the Act.
  - Regarding the application of Chevron to constitutional questions, Justice Roberts seems to be probing for clarity and understanding.

4. Analysis of Justice Roberts' sentiment towards each party's position:
  - Justice Roberts appears to be skeptical of Mr. Clement's argument that the best reading of the statute favors his client and that the Chevron doctrine should not be applied differently in cases where the agency is a party.
  - Justice Roberts seems to be more receptive to General Prelogar's arguments, particularly her clarification that Chevron only applies to statutory interpretation and not to constitutional questions. However, he still probes for clarity and understanding.  

KAGAN

1. Justice Kagan takes interest in the following issues:
  - The interpretation and application of the Chevron doctrine.
  - The role of Congress in authorizing or reversing the Chevron doctrine.
  - The concept of stare decisis and its application to the Chevron doctrine.
  - The potential impact of reversing the Chevron doctrine on existing court decisions.
  - The concept of "Kisorizing" Chevron, or applying the principles of the Kisor v. Wilkie case to the Chevron doctrine.

2. Summary of Justice Kagan's questions and the attorneys' responses:
  - To Mr. Clement, Justice Kagan questioned the interpretation of the Chevron doctrine and its application. Mr. Clement argued that ambiguity in legislation should not automatically be seen as a delegation of authority to an agency. He also suggested that the Chevron doctrine has led to a lack of legislative action on major societal issues.
  - To General Prelogar, Justice Kagan asked about the concept of "Kisorizing" Chevron. General Prelogar suggested that the court could reinforce the rigor of the step 1 analysis, emphasize that the enterprise only gets off the ground in a me-type situation, and look at any other statutory indication that Chevron deference was not meant to apply.

3. Analysis of Justice Kagan's sentiment towards each issue:
  - Justice Kagan appears to support the Chevron doctrine, arguing that it is a doctrine of humility that recognizes the expertise of agencies in areas where congressional direction is unclear. She also emphasizes the importance of stare decisis and the potential impact of reversing the Chevron doctrine on existing court decisions.
  - Regarding the concept of "Kisorizing" Chevron, Justice Kagan seems open to the idea and seeks clarification on what it would entail.

4. Analysis of Justice Kagan's sentiment towards each party's position:
  - Justice Kagan appears to disagree with Mr. Clement's interpretation of the Chevron doctrine and his argument for its reversal. She challenges his views and emphasizes the role of Congress in authorizing or reversing the doctrine.
  - Justice Kagan seems more aligned with General Prelogar's position, asking for clarification on how the principles of the Kisor v. Wilkie case could be applied to the Chevron doctrine.  

BARRETT

1. Issues that Justice Barrett takes interest in:
  - The principle of stare decisis and its potential disruptive consequences if overruled.
  - The relationship between Brand X and the proposal to "Kisorize" Chevron.
  - The interpretation of statutory language and the role of the agency in interpreting ambiguous terms.
  - The impact of overruling Chevron on the court's emergency docket and major questions doctrine.
  - The unique position of Chevron among other canons of statutory interpretation.

2. Summary of the Justice's questions and the attorneys' responses:
  - To Mr. Clement, Justice Barrett asked about the potential disruptive consequences of overruling stare decisis. Mr. Clement argued that overruling would provide new stability to the law and that Chevron's interpretation of the statute was unworkable and led to a lack of legislative action on major issues.
  - To General Prelogar, Justice Barrett asked about the relationship between Brand X and the proposal to "Kisorize" Chevron. General Prelogar argued that Brand X only applies when Chevron deference is granted under step two, and that overruling Chevron would not resolve the inherent indeterminacy in interpreting ambiguous terms.

3. Analysis of the Justice's sentiment towards each issue:
  - Stare decisis: Justice Barrett seems concerned about the potential disruptive consequences of overruling stare decisis, indicating a cautious approach towards changing established legal principles.
  - Statutory interpretation: Justice Barrett appears to be interested in the role of the agency in interpreting ambiguous terms and the potential impact of overruling Chevron on this process.
  - Major questions doctrine: Justice Barrett seems to be skeptical that overruling Chevron would resolve issues related to the major questions doctrine, suggesting a nuanced understanding of the complexities involved.

4. Analysis of the Justice's sentiment towards each party's position:
  - Towards Mr. Clement's position: Justice Barrett appears to be open to Mr. Clement's arguments but also challenges his views, particularly on the potential disruptive consequences of overruling stare decisis.
  - Towards General Prelogar's position: Justice Barrett seems to question General Prelogar's interpretation of Brand X and the proposal to "Kisorize" Chevron, indicating a critical stance towards the government's position.  

ALITO

1. Issues that Justice Alito takes interest in:
  - The initial popularity of Chevron and the reasons behind it.
  - The changes in statutory interpretation since the inception of Chevron.
  - The effectiveness of agencies in interpreting statutes correctly.
  - The reliance on agency expertise in interpreting statutes.

2. Summary of Justice's questions and responses:
  - Justice Alito asked Mr. Clement about the initial popularity of Chevron and whether anything has changed since then. Mr. Clement responded that the initial popularity of Chevron was partially correct. He stated that statutory interpretation has evolved significantly since Chevron, with a greater focus on the text of the statute. He also pointed out that agencies' track record before the Court is not impressive, indicating that their expertise may not be as reliable as assumed.

3. Analysis of the Justice's sentiment towards each issue:
  - Justice Alito seems to question the continued relevance and effectiveness of Chevron, given the changes in statutory interpretation and the track record of agencies. He appears to be skeptical about the reliance on agency expertise in interpreting statutes.

4. Analysis of the Justice's sentiment towards each party's position:
  - Justice Alito's questions to Mr. Clement suggest that he may be open to reconsidering the Chevron doctrine. His line of questioning indicates a willingness to consider arguments that challenge the continued relevance and effectiveness of Chevron. However, it's not clear whether he favors Mr. Clement's position specifically.  

GORSUCH

1. Issues that Justice Gorsuch takes interest in:
  - The interpretation of the Act and whether it authorizes the NMFS to promulgate the funding rule.
  - The concept of Chevron deference and whether it should be overruled or clarified.
  - The role of statutory silence in creating ambiguity that requires deference to the agency.
  - The concept of delegation and whether it should be inferred from linguistic ambiguity.
  - The impact of the government's interpretation on individual liberty and the right to be heard.
  - The role of notice and comment in rulemaking and adjudications.

2. Summary of Justice Gorsuch's questions and the attorneys' responses:
  - To Mr. Clement, Justice Gorsuch questioned the interpretation of the Act and the concept of Chevron deference. Mr. Clement agreed that reconsidering a methodological error is part of judicial humility and that Chevron was heedless of Section 706 of the APA.
  - To General Prelogar, Justice Gorsuch questioned the clarity of the statute, the concept of delegation, and the role of notice in rulemaking and adjudications. General Prelogar argued that the statute is clear, that delegation is not a fiction, and that the Court should retain Mead.

3. Analysis of Justice Gorsuch's sentiment towards each issue:
  - Justice Gorsuch seems skeptical about the interpretation of the Act and the concept of Chevron deference. He appears to believe that the Act does not authorize the NMFS to promulgate the funding rule and that Chevron deference should be clarified.
  - Justice Gorsuch seems concerned about the impact of the government's interpretation on individual liberty and the right to be heard. He appears to believe that the government should not always win in cases of linguistic ambiguity.
  - Justice Gorsuch seems to value the role of notice and comment in rulemaking and adjudications. He appears to believe that affected parties should have the opportunity to be heard.

4. Analysis of Justice Gorsuch's sentiment towards each party's position:
  - Justice Gorsuch seems to challenge both parties' positions. He questions Mr. Clement's interpretation of the Act and the concept of Chevron deference, and he challenges General Prelogar's arguments about the clarity of the statute, the concept of delegation, and the role of notice in rulemaking and adjudications.  

KAVANAUGH

1. Issues that Justice Kavanaugh takes interest in:
  - The interpretation of Skidmore and Chevron doctrines and their application in the case.
  - The concept of judicial restraint or humility in terms of Chevron.
  - The reliance of judges on Chevron.
  - The potential overruling of Chevron and its implications on the case.
  - The experience of states with Chevron and its abolition in some states.
  - The issue of agencies changing their interpretations and the impact on affected parties.

2. Summary of Justice Kavanaugh's questions and responses:
  - To Mr. Clement, Justice Kavanaugh discusses the interpretation of Skidmore and Chevron, and the implications of agency flip-flopping. Mr. Clement agrees with Justice Kavanaugh's interpretation and adds that Skidmore allows for industry consistency to be considered.
  - Justice Kavanaugh also asks about the reliance of judges on Chevron. Mr. Clement provides statistics showing that courts reach step two of Chevron in a significant number of cases, indicating a reliance on the doctrine.
  - To General Prelogar, Justice Kavanaugh asks about the experience of states with Chevron. General Prelogar acknowledges that some states have abolished deference to administrative agencies but argues that the lack of uniformity is less concerning at the state level.
  - Justice Kavanaugh also asks about the impact of agencies changing their interpretations on affected parties. General Prelogar argues that agencies must justify their decision-making and take account of reliance interests.

3. Analysis of Justice Kavanaugh's sentiment towards each issue:
  - Justice Kavanaugh seems to question the application of Chevron and Skidmore, suggesting that he may favor a more nuanced approach that considers industry consistency and the potential for agency flip-flopping.
  - He appears concerned about the potential for judicial abdication to the executive branch and the need for balance between judicial restraint and preventing executive overreach.
  - He seems skeptical about the reliance of judges on Chevron, suggesting that he may favor a review or overruling of the doctrine.
  - He appears interested in the experiences of states that have abolished Chevron, suggesting that he may be open to considering alternatives to the doctrine.

4. Analysis of Justice Kavanaugh's sentiment towards each party's position:
  - Justice Kavanaugh seems to agree with Mr. Clement's interpretation of Skidmore and Chevron and his argument about the importance of industry consistency.
  - He appears to question General Prelogar's defense of Chevron, suggesting that he may be skeptical of the doctrine's application in the case. However, he also seems to acknowledge the importance of agencies justifying their decision-making and considering reliance interests.