They Finally Killed Chevron Deference

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: Welcome to Opening Arguments. I'm your host Thomas Smith. That over there is Matt Cameron, real-life lawyer. How are you doing, Matt?

0:00:51 Matt: Thomas, I'll defer to you as the subject matter expert on how I'm doing.

0:00:55 Thomas: You can only defer to me if I've been reasonable, which I haven't. So I'm sorry, you you'd like to understand these jokes, make make sure to keep listening to, to interview with Charles Starr, the ALAB podcast and other things that we'll put in the show notes.

0:01:01 Matt: Yeah.

0:01:11 Matt: And And previously of Mike Dicta, one of the only legal podcasts I've ever actually enjoyed listening to. Know, high praise.

0:01:17 Thomas: Wow. Mean, except one, right?

0:01:20 Matt: Actually really enjoy listening to this one.

0:01:20 Thomas: Yeah. Have to credit Mike Dicta as one of the best podcast names ever. It's so memorable. It you is are never going to forget that one. Fantastic. And then they stopped doing it. So, wait, can we have it? Can I, can I have that name? No, I can't. This is possibly the least of the bad news of the court, which is not saying much. We'll see. We'll see what, what Charles thinks, but, It'd um, be Nice to have not a good thing, but a slightly less bad thing, but I don't know. I'm skeptical. All right. We will after this break, uh, skip all the ads. If you want to go to patreon.com/law, you don't have to hear the ads and also you get the goodies. So So make sure to do that. And after this break, we'll be on with Charles Starr.

0:01:26 Matt: Fantastic.

0:01:39 Matt: Yeah. Has been a little too strong on this one, but we'll talk it out.

0:02:03 Thomas: Thanks so much for joining us today.

0:02:05 Charles: Glad to be here. Thanks for having me on.

0:02:07 Thomas: We're really excited to talk to you. Oh, The scale of horrible things the Supreme Court has done lately, this is maybe I think Matt previewed ahead of time. He's he's making an argument that not as bad as people are making it out to be, and hey, if that's possible, I would love something to be not as bad as we're making it out to be. That'd be fantastic for me.

0:02:09 Charles: Hear that often.

0:02:30 Charles: Well, depends what your baseline is. If your baseline, yeah, if baseline is, well, I guess I meant more temporally.

0:02:35 Thomas: Pretty low, pretty low. Charles, pretty low. Oh.

0:02:42 Charles: The baseline is always low. I mean, my standing rule ever since I started talking about law into a mic was there is no good news, and so, uh, and but if your baseline is 1944, it's not terrible, uh, your baseline is much more recent than that, then it's weird. And honestly, it has less to do with the decision, which is bad, uh, more to do with the trends of the Supreme Court and the conservative courts across the country more generally. Makes I everything a little easier for the kind of fed-suck weenies everywhere to point to, but they were already doing this. So if you accept the fact that we were already ready in an incredibly debased legal environment, this doesn't change that much Yeah, so then it doesn't changed that much, but if you had any sort of hope for things being better ever in your lifetime, then not good.

0:03:01 Thomas: God.

0:03:41 Thomas: I do accept that Okay. Oh.

0:03:55 Thomas: Geez.

0:03:55 Charles: Yeah.

0:03:56 Thomas: Okay, yeah.

0:03:57 Matt: I didn't have that anyway, so we're good. We're fine. Yeah, been strange to watch the last few days the headlines and social media posts about all this dumerism about the end of the government as we know it, when they're talking about overturning something that was put out by a conservative court defending the EPA's right to loosen air pollution rules.

0:03:58 Charles: Yeah.

0:04:12 Thomas: I That was gonna be how I wanted to have launched into it. I agree. Cause I, I do remember, like, we've covered Chevron for a long time on this show and, be explained too many times. Cause it's so weird that most non-lawyers, I think, forget, like, 20 seconds after you've told them what it is, myself included. But I do remember, that I do. Remember, like, wait a minute, wasn't this originally a tool for the right. And so maybe we can go through the history. And if that's true, I guess naively, I might hope, well, if it was a tool for the right, maybe it's not so bad that it's gone, but I don't know.

0:04:42 Charles: I mean, like, like you got to think of a lot of these things as kind of, I, either one-way ratchets, or, or with something like the presidential immunity case, decisions of convenience. And there is Chevron, I, this is what I mean when I say, like, going back to 1944, there's a case called Skidmore v. Swift, which isn't like, like the first of the administrative law cases, but it's a sort of early big one where they say, and this is in the case of, like, the Fair Labor Standards Act. And it's like, it's kind of cool because it's weirdly pro-labor ruling.

0:05:27 Thomas: Yeah.

0:05:27 Charles: You know, there were these guys who worked for some corporation. I guess it would probably be Swift and Company, since that's a defendant in the case. But so they work for this company, and they work basically as a fire watch, right, have to stay on the company grounds, and the way the company pays them is if there's a fire, we pay you to respond to it.

And they sued under the Fair Labor Standards Act, basically saying, so wait, we have to to sit there all night and you only pay us if there's a fire, uh, and the the Fair Labor Standards Administration, or whatever the board or whatever they were in the 1940s, interpreted the rule in in favor of the employees, and said, you say they're not working, they're just waiting, but if you kind of make them wait there, then that's close enough to working for our purposes.

And what the court said was, we don't defer to agencies, right? We don't differ to them. But to the extent we give their opinions persuasive authority, we base it on, and then it's like a four-factor test, the way courts have four-factor tests, right, the thoroughness of the agency's investigation, the validity of the reasoning, consistency

0:06:51 Charles: Of interpretation, right,

0:06:50 Thomas: And if they text you for a code, you enter the code in and then, yeah, that.

0:06:55 Charles: Oh, Do not do that, never give someone else the code, never. So that's it, they they basically say, look, we retain the right to disagree with the agency, but here is a rough guideline for not being an asshole about it, right, We're a court, you're an agency, you have some expertise, we are not like stomping around in your garden, but you can't half-ass it, you have to essentially prove that you took the issue seriously before we will give you deference, right? Sort of a reasonable way of looking at it, right,

0:07:13 Thomas: Yeah. Seems

0:07:40 Matt: This is something I wondered after reading this decision last week is, it seems like Skidmore is still good law, Chevron is not.

0:07:46 Charles: Yeah, they kind of, they basically do, they, kind of kick it back. To They, Skidmore, except, like right after that is a case called Bowles versus Seminole Rock and Sand, which it's really funny when you read cases from the 1940s because this was about wartime price controls, which is just sort of inconceivable to have a precedential case in 2024 about the federal government passing price control laws. But that's what it was. They had the Emergency Price Control Act. And they basically had rules about, you know, maximum prices for scarce goods.

0:07:46 Thomas: Like it. That's interesting.

0:08:30 Thomas: I think that's because pocket sand was a really good weapon in World War II. Thinkthat's why. Yeah, Like, you got to keep that cheap.

0:08:33 Charles: That's right. That's You know, had this contract. They wanted to sell it for, like, I think the numbers are crazy. It's like $1.50 a ton or something like that. And they're like, no, no. You can only sell it $0.60 a ton because it's all fixed to one month in March of 1942 for the maximum prices. And this company had a contract which was signed in 1941, but they delivered in 1942. And then they signed different contracts in March of 1942, which wouldn't be delivered until after.

And they're like, that's the one that matters because we signed the contract in March. But the price control agency, I think, which just wants to keep the prices lower, just says no. The only thing that matters is the delivery in March, and they're, like, well, you know, what they say in Seminole Rock is the agency opinion, this is a quote, becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation, right? So they decide to just be hands -off and defer generally.

So that's the 40s. And it just sort of sits like that for 40 years where they have, like, for certain things, they have no assholes deference where they take you seriously as kind of a little brother, brother, and and they defer to you when they don't think you're completely out of pocket, and then on other things, when the agency is interpreting its own regulations as opposed to the enabling statute, they're like, we're gonna give you pretty wide berth there to interpret your own regulations, right?

And and that's sort of how it sits for 40 years, and then you get Chevron, which, which I guess, as Matt was saying, is actually a fairly, is like, you think that Chevron loses when you hear about Chevron deference being good for agencies. But that's not right, because the case was Chevron versus the Natural Resources Defense defense Council, where the NRDC was trying to force the EPA, run by, I don't know if you've discussed this trivia,

0:11:10 Matt: Gorsuch.

0:11:11 Charles: Neil Gorsuch's mom.

0:11:12 Thomas: Right. Yeah, yeah. Okay, yeah that's where she, I knew she comes in there somewhere. I couldn't remember.

0:11:14 Charles: Yeah, yeah. Neil Gorsuch's mom is the EPA secretary under Reagan.

0:11:21 Thomas: God.

0:11:16 Matt: First to run the EPA for what it's worth.

0:11:24 Charles: Congratulations to her. Yeah. So we're

0:11:25 Matt: Yeah, Yeah.

0:11:25 Thomas: Yeah, Yeah. Know, he looks like a Nepo baby. So I just, he just has a Nepos baby look. I should have known from a mile away.

0:11:27 Matt: It It does.

0:11:29 Charles: Yeah. Yeah, watershed moment. We're all so proud, um,

0:11:37 Matt: Other thing I meant to mention is that you'd think when it's called Chevron, that Chevron would be opposing these regulations, but they're coming in to support them, which tells you something because she's trying to relax the Clean Air Act.

0:11:44 Charles: Correct. Correct. It Yeah. Yeah, interesting because, like, case itself is a little weird and I don't even know if I disagree with it. I disagree WITH IT for maximalist environmental reasons, but the regulation that they were interpreting was one which said that there were maximum emissions, you had maximum emissions from a single source. And so now the question is, what is a single resource?

And what the NRDC wanted to say was a smokestack is a signal source, a kiln is a symbol source, or whatever, like all of these are single sources. And if you do something that increases the pollution from any of your single sources, you run the risk of violating the law. And what Chevron said and what the EPA said was they interpreted the single source rule under something that they call the bubble theory.

And the bubble fury is the plant itself is a single source, regardless of how many devices. And if you do thing A, which makes your smokestack put out more crap, but you also do thing B, which balances it out by increasing the efficiency of some other thing in your plant, then you are net zero and within the rules on the single source rule, right?

0:13:13 Thomas: Hmm.

0:13:13 Charles: And so it did weaken the rule by making it easier to comply, but it's not actually necessarily total nonsense. Even though I don't trust any of these people, superficially, it may not be completely horrible. Like if you trust that there actually is a countervailing benefit, then maybe this is not a completely unreasonable way of making improvements workable, even though like all of your improvements are met with deterioration just so you're net zero and can make sure you're pumping out the most crap. But whatever. That was the interpretation.

And the Supreme Court ultimately sided with the EPA and with Chevron and said, look, we a delegation of authority from Congress to the EPA, which means two-step process. And one, we read the statute and we look at the statute's delegation. Is it ambiguous? If it's not ambiguous, then we decide right there whether you are in conflict with it. And if you're in conflict with it, you get no deference at all because you can't create authority that contradicts the statute that grants you the authority.

But if you are not in conflict with it, if you interpret it reasonably, and this is where Chevron distinguishes itself from Skidmore, if your reasonable about it, courts have to defer to you. Because we want to get courts out of the business of second-guessing agencies because the agency is accountable to the executive in charge whose authority comes from a statute written by Congress. And so it is supposed to be a rule basically of judicial humility, right? Going to step back and let the agencies do their work because that's what Congress wanted them to do and

0:13:23 Thomas: Yeah. Yeah. No, to our Supreme Court. That's like, oh, we don't have any humility. That is stupid.

0:15:32 Charles: None.

0:15:33 Thomas: Why were they doing that?

0:15:33 Charles: None.

0:15:33 Thomas: Yeah. Overturned. No.

0:15:34 Charles: Whatsoever that is basically it. Like this court, this decision, like a part of it where they're like, humility, [bleep] you, right? They, like they literally say that agencies do, and this is a back -to -back sentence, agencies do not have expertise in interpreting statutes, courts do, like explicitly, non-humble, they're they're like, this isn't about expertise in the subject matter, this is about whether you know how to, you, statutory language, and so on, those cases, we're not going to defer at. Oh.

0:16:00 Thomas: Okay. Yeah.

0:16:19 Thomas: Hold That Is why there is only one type of lawyer, right? Lawyers are just good at interpreting laws and there is one type lawyer and you don't need any others.

0:16:26 Matt: Yeah. And I should point out, Supreme Court did a great job of setting this up by very reasonably interpreting the bribery statute, as well as the Sarbanes -Oxley Act. They had fantastic interpretations of both of those within like 72 hours of this decision. So, absolutely.

0:16:41 Thomas: Yeah, totally.

0:16:38 Charles: My god. Oh. My God, I spent an hour a few years ago on my own podcast ranting about the Bridgegate decision and how they do not take an opportunity to [bleep] up public corruption law by making it less and less possible that anyone could ever be charged with anything, you

0:17:03 Matt: Yeah. Yeah.

0:17:12 Thomas: Take it back to this, I want to make sure, I know you've already said it, but to just to reiterate that subtle difference, I wanna make sure I have it between Chevron and, uh, was it Skidmore?

0:17:22 Charles: Skidmore?

0:17:22 Thomas: Yeah. So what was that subtle little difference again?

0:17:25 Charles: So, the it's not that subtle, the big difference between the big, yeah, no, no, no, it, it's It's now I'm no, I'm not I'm I'm saying it just, I think people misunderstand it, the, the difference is, is in Skidmore they were like, it's kind of best practices to defer, and in Chevron the rule is defer, like, get out of the way Unless they're being unreasonable, right? So it kind of, it kind of makes it, puts more teeth in it, puts more teeth in Skidmore, and it more specifically gives more, more compelling direction to lower courts, right? It's like Skidmore is kind of wishy-washy on how, how well you think they're working, whereas under Chevron, you're like, okay, I don't know that I'd have interpreted it that way as a matter of first impression, but it is ambiguous, this isn't a crazy reading, they're the agency that's supposed to have direct control over this, so we'll kind of let that go, right? Because

0:17:27 Thomas: Oh, okay. Well then I'm an idiot. It's not that subtle, Thomas. You're just, just dumb, no I'm kidding sure Okay. Yeah.

0:18:41 Thomas: Wait,

0:18:41 Charles: You made, you, I mean, Thomas, you made the joke about, you know, there being only one kind of lawyer, which isn't true, but there is only one type of judge, and the judge interprets environmental cases and patent cases Yeah, I

0:18:55 Thomas: Is that actually true? I I thought the immigration judges that Matt talks about are very weird.

0:19:00 Charles: Not a judge, those aren't judges, yeah,

0:19:01 Thomas: Okay. Fair,

0:19:00 Matt: Those aren't judges. Those are just DOJ lawyers in robes.

0:19:03 Thomas: Yeah, okay, yeah, I stand corrected, yeah, yeah,

0:19:05 Charles: Yeah, they're not judges, those are like the agency people who get second guessed by you, know, immigration lawyers work for, uh, I guess it's Homeland now, um, it used to be Immigration and Naturalization Services, right, uh, those, so those don't, they're, they're not really judges, they're administrative law judges, but judges have general jurisdiction, right? It's a little different in like Delaware, which has a special business court, but in most places, they'll decide patent cases or criminal cases or tort cases or whatever, whatever comes in front of them, they have to do it, they're all generalists, which is to say they don't fucking know shit about most of this stuff until they get on the bench and read briefs from conflicting parties.

0:19:09 Matt: They are agency people. Yeah, and there's

0:19:56 Thomas: Which fair enough, like, we actually talked about this recently, recently because, was, you mentioned that, like, these judges rely on the lawyers often to represent the law properly, and at first you're like, oh, shouldn't they know the law? It's like, well, no, I mean, they handle a million cases and that, you Know, yeah.

0:20:10 Matt: A lot of it.

0:20:11 Thomas: And this, this, whoever the lawyer is presumably has put a lot of time into the research. And if you have two opposing sides and I, you KNOW, it kind of makes sense that you would expect that you're getting the best arguments most of the time.

0:19:57 Charles: Right, yeah, okay,

0:20:22 Matt: So wanted to pull back there for a second and ask, because this is what's been on my mind. Because obviously, I think about Chevron a lot, because I am an immigration attorney and obviously a lot of our cases were by the Board of Immigration Appeals, which right now was actually expanded by Trump and is stacked with pretty hard right people, that they were picked because they denied asylum cases at astonishing rates.

0:20:28 Charles: Yeah, I covered, actually, I don't remember what it was, I think it was like an, an opinion by, uh, Sessions who, like, really pared back the interpretive, it's so long ago that I I don't remember the case, but, you know, like really pulling back the rules of decision for immigration judges.

0:20:47 Matt: Did a few of those. He appointed more immigration judges and had more overall effect on the system. So immigration lawyers, for the most part, were very happy to see Chevron go because there are any number of circuit decisions. And by the way, generally speaking, they make the Fifth Circuit look pretty reasonable on immigration. That's what we're talking about. So it's pretty good to see the Board of Immigration Appeals actually challenged and overruled by an actual court. And that's why, I guess, just coming from my background for the last 18 years, and my colleagues sort of all agreeing that it's good, good to see Chevron gone for the most part for us. I don't think that Chevron is inherently ideological. And I think that part of the problem we're seeing here is that people need to squeeze every Supreme Court decision into a red or blue box. And it's

0:21:13 Charles: Oh, God.

0:21:13 Thomas: What the, well, but isn't the court doing that though? That's what what I'm worried about is like, it feels like a lot of these things, we're talking about the immunity case today, but it feels to me, I'm not the lawyer. It feels to be like a lot of things are, this gives us a better ability to play heads. I win tails, you lose like, like it just gives us that ability to say, oh, well here, you know, obviously we got to defer to them because they're doing a thing we like, and here we don't have to, because they'RE doing a thing. We don't like,

0:22:03 Matt: True that, of course, when Chevron was decided, Ronald Reagan was the president and was running the executive branch all the way through the 80s. They were happy to defer to executive agencies at the time. And Obama and Biden appointees in these agencies, right? So I can see the argument there. But Scalia loved Chevron for most of his career. He turned on it eventually, I think. But I think it says something that this is not... just nothing really left or right about this as an administrative law principle. It really is about who's in charge of the agencies, I think.

0:22:16 Charles: Yeah. Right.

0:22:32 Matt: Is that what you...

0:22:33 Charles: I think, yeah, I agree with that. I hate legal realism, right? Not because it's wrong, because it actually has a lot of explanatory power when you look back at something, and even a fair amount of predictive power, Like it's a good way to place your bets. But I find it very intellectually unsatisfying because you end up like going – it proves too much to always say that power wins. Like it just makes it boring. And so that doesn't necessarily make it wrong, though. And one of the ways that it's not wrong is, I think, with respect to this decision, is not ideological necessarily to move the decision making from agencies, especially to the extent it's about the agency interpreting their own remit.

I don't think it's necessarily ideological to say that actually courts should be doing that. It is ideological for this court to be saying it because this court hates excessive regulation, number one. Two, it does it against the background of a completely sclerotic Congress that will not solve any of the problems they create by clarifying the ambiguities, right? Congress, at least one branch of it and one veto branch branch of it is hostile to excess regulation. So these gaps don't get filled. It basically takes the law and just throws it into turmoil, especially especially given the hostility to regulation from so much of the lower courts, right?

The federal bench, as appointed by Trump, this is like hunting season for them. Every case that comes before them, if they find an ambiguity, they are going to refuse to defer and call for hearings and block the regulations before they take effect. And it essentially is a permission slip to hamstring the administration now, or even the Obama stuff that, you know, has been kicking around in regulatory hell for seven years, you know, with notice and comment, and then something finally gets issued.

And some judge is like, I don't know. I don't know if this is within your authority. And that is exactly, by the way, how Roberts writes all of his opinions with a kind of faux humility that he's not really doing much.

0:22:33 Matt: Yeah. Yep. Yes.

0:23:42 Thomas: Right. Yeah.

0:25:28 Matt: Yeah, for

0:25:28 Charles: But it's, I think, intentionally dishonest. It's at its worst in the immunity opinion, but it's really bad here.

0:25:36 Matt: Sure.

0:25:41 Thomas: Arguments is brought to you by Green Chef. Green Chef is the number one meal kit for clean eating, delivering pre -portioned and prepped quality whole foods with limited processed ingredients. Chief sends fresh produce, responsibly sourced proteins, and chef -designed recipes in every box box for satisfying, nourishing, and convenient meals that make it easy to stick to a clean routine. Lydia and I could not function without meal kits. I mean, I guess we could, but we'd eat absolute garbage if we didn't have them.

Meal kits are fantastic. Know who in this year of our Lord 2024 has not tried a meal kit before, but if you haven't, highly recommend, and I recommend Green Chef. Send you only what you need. They you don't have to think of something you want to make and then write down a list of ingredients and then go to the store and then buy those ingredients and buy exactly the right amounts of them, otherwise you don't have enough or you waste too much and it goes rotten.

All of that is impossible and no one has ever done it, ever, not once. They won't tell you that, but it's true. Instead, go with Green Chef. It's got quality ingredients. It's got only in the amounts you need. It's shipped right to your door.

And if you're someone like me who has a particular diet, for example, I'm a vegetarian, it's got good variety, and and that's not just vegetarian, Mediterranean, plant -based gluten -free protein -packed keto, calorie smart, gut health, all these different kinds, preferences you can choose. And through all that, you'll get unique ingredients and unexpected flavor combinations, and it is really, we could not live without it. I'm not even been exaggerating.

Save so much time and mental energy that Lydia and I just don't have with the kids and 50 podcasts, so I recommend it. Give it a try. Go to greenchef .com slash OA50 and use code oa 50 to get 50% off plus 20% % off your next two months. What an offer. Again, again, go to greenchef .com slash OA50 and use code OA50 to get 50% % off plus 20% % off your next two months. That to try. It's worth trying anyway, but let alone with that amazing deal, 50% off. Come on. Greenchef .com slash 0850. Chef, the number 1 meal kit for eating, well.

0:27:50 Thomas: Realizing we didn't give like kind of the facts of the case that actually did overturn this, uh,

0:27:54 Matt: And they found really really good plaintiffs for this case, I have to say. I mean, they're very good at putting these cases together. Are some, I guess we'll say, fisher people, people that catch fish.

0:27:55 Thomas: Yeah. Yeah. If You saw the movie Coda, which was a fantastic movie. It was depicted kind in that movie. Yeah.

0:28:09 Matt: Of some, it believes, defunding in the appropriate agency, have to pay something like $700 a day to have a monitor on board on their boat. So of course, this is incredibly financially burdensome. And it's completely understandable why they wouldn't want this regulation to exist. I don't want the regulation to exist when I read that. Here in New England, that's a real issue. These people are barely making a living. So great work, whoever found these plaintiffs.

0:28:23 Thomas: Yep.

0:28:33 Thomas: And great work, whoever somehow made that happen. I don't know what the result of or how that resulted, but I can't think of a better way to embitter people against any sort of regulatory anything than by by being like, oh yeah, you people who are barely staying afloat, so to speak, you have to pay for this.

0:28:49 Matt: Yeah, yeah.

0:28:52 Charles: Well, but I mean, though, it depends, you know, it's how far back you want to peel the onion, right? If they were properly funded as an agency, then they Would be employed and paid For by the government, but if you strip out all of the funding for fisheries management, then You know, you're left with the agency fucking pulling their pockets inside out, Like they're on, you know, a community immunity chest card, and And and telling the, you know, this, you know, the Gorton's fisherman that he's got a fork over 700 bucks a day, right?

0:29:01 Matt: Right. Sure.

0:29:02 Thomas: Yeah. Yeah, yeah, yeah.

0:29:27 Thomas: I mean, it's part of the right wing effort to just bankrupt government and then complain that it doesn't work and then get rid of it. It seems like. Yeah yeah.

0:29:33 Charles: Exactly.

0:29:35 Matt: Libertarian dream. I will say that they picked the wrong name though, I think. There were two cases that went up here, and one of them was Loper Bright, and the other one is Relentless Inc., which is Awesome. I think that would have been a much better name for this if you're going

0:29:44 Charles: Yeah. I'm looking at the, like, one of them is, uh, one of them is a scombrous one. It's

0:29:54 Matt: That's a great name, man.

0:29:55 Charles: A scomerous One, I have to say that all the time.

0:29:56 Matt: Yeah. I just feel if, like, you're gonna, you're going to do major precedent overrule, you might as well go with Relentless. That's just such a badass name. But The statutory issue here is the Magnuson-Stevens Fishery Conservation and Management Act, as summarized here. Here's the MSA. And the MSAs I've ever seen, the agency in play here is the National Marine Fisheries Service, which, as we were saying, has been somewhat defunded. Course, there's a whole pile of regulations associated with fisheries. The observer thing here is as to conservation and management to make sure, of course, that we're not overfishing. And comes down to is whether this regulation actually requires Atlantic herring fishermen to be required to bear the costs associated with the observers. And they were interpreting it to believe that they did. This is brought up on that particular thing. But of course, what this really is, is a Koch brothers libertarian project to try to kill Chevron. So these are the plaintiffs they picked for that purpose.

0:30:05 Thomas: Yeah. It's

0:30:49 Charles: Right, and, like, I'm looking at, you know, the case for the statute and I, my guess is that that they promulgated the regulation under, take notes, Section 1853B14, which says that they can prescribe other measures, requirements, or conditions as are determined to be necessary and appropriate, right? So they said that there have to be monitors, and so you can't kick the monitor off. And then eventually they were like, well, we can't pay for the monitors and you have to have a monitor.

So it's necessary and appropriate for you to pay for the monitor who's on your ship. And they promulgated a rule and approved the amendment. And that was in 2020. And so that's why this suit is now, right? Right. Like, it takes a few years to work through the court, but they they want to pay for this service. It says that this can be up to 20 percent of their annual returns. So, like you said, Sympathetic plaintiff. Right. That could be 700 bucks a day really eats into it. So that's it. But it gets decided under Chevron because they're like, well, the statutory text is ambiguous. It doesn't say that them pay for the monitor, but it doesn't say you can't make them pay for them monitor. And so it's reasonable to a regulation that makes you pay for them, and so that's it, that's what the DC Circuit said. Yeah.

0:31:56 Thomas: Jeez.

0:32:23 Matt: There's the Companion First Circuit case that basically came out the same way regarding Roland Lessant. So that's the actual vessels. All just an excuse to get to the point where Roberts can confidently say that it is overruled, they say very directly here. And I will say, and I think we're probably going to get into this anyway, but it's been functionally, maybe not in life support, but it has been diminished quite a lot. And the Supreme Court hasn't been using it very much, as far as I know. Certainly, the circuits have, but...

0:32:27 Charles: Yeah. Exactly. Yeah.

0:32:42 Thomas: Yeah.

0:32:47 Charles: Mean, he makes a point of saying Roberts that they haven't actually deferred to an agency since 2016, which is how you know the writing is kind of on the wall on this, you know, there Was a case a few years ago called Kaiser v. Wilkie, which is more like the Seminole Rock case than like Skidmore, where the agency was defining their own regulations. And Seminole Rock got reaffirmed in a case called Auer, which was a Scalia case back in 97. But that's been under the gun the whole time, right? Kaiser v. Wilkie just sort of sanded that down to almost nothing, basically you writing, who are we kidding? We never think anything is ambiguous because

0:33:34 Thomas: Some

0:33:00 Matt: Well,

0:33:34 Charles: We're geniuses and we can always find a meaning. And so they kind of whittled it down to basically nothing with, you know, the majority was written by Kagan, basically on her knees begging for, uh, some kind of you deference to stick around, but it's nothing left.

0:33:55 Thomas: Think What's really interesting about this is I can't really think of another kind issue we've ever covered like this where at every step of the way it seems like the decision at least was kind of the right one, like, like all the, all, All the deference decisions that you went through history, it's like, well, yeah, kind of makes sense, kind of makes sens, kind makes sense. That's interesting. But also, unless you think I'm wrong on that, but also, maybe stupid question, could they not have just not deferred in this instance rather than get rid of the concept of Chevron deference? Like, why would that, couldn't there some way to just rule on that one instance rather rather than just get rid of this entire concept?

0:33:55 Charles: Really An interesting question, I think I would probably have to spend a little more time with the statute and the regulation to see if I I, you thought that there was an ambiguity there, but they certainly could have done that. But they wouldn't have taken the case to deal with step one, right? The number of cases they take, they wouldn't have taken the case to reverse on step one.

0:34:47 Thomas: Oh, yeah no. I'm not saying there was a chance this court was going to. I just meant logically speaking.

0:34:49 Charles: Yeah, no, no. Yeah. No, No, I will. But I meant just sort of as a matter of Supreme Court practice, in the same way you don't get published just by reproving someone else's research. You take the case either to clarify or to reverse, and they didn't want to clarify here. They wanted to say, if you think it's ambiguous, and I guess agreed that it was because doesn't speak to the funding and who's is responsible for funding the observers. And so they were like, well, the statute doesn't really say anything about this. And they actually didn't decide the case, right?

0:34:52 Thomas: Yeah. Mm -hmm. Yeah. Mm -mm. Mm.

0:35:33 Charles: It goes back to the DC Circuit, and the DC Circuit could ultimately decide that that it the best interpretation of the statute, that it falls comfortably under something, something necessary to blah, blah, blah, right? They could fit it in, but it does knock them back to square one, because they kind of have to re-justify it in front of the district court in the first instance, right?

Now they actually have to justify themselves, you know, like getting in the ring for the first time, instead of having a thumb on the scale of being generally reasonable, right. I think that's, I think a lot lot of it comes down to how administrative law practitioners think of government and the way the Supreme Court thinks of government. And I don't even mean that in a legal realist way.

I mean it that way from one side, which is to say, I think people who work in the area of administrative law like deference because it makes the whole thing work, right? You've created Yeah, you've created these agencies. They have to have some room to make decisions. And so deferring to them means that the gears function. If they are constantly being held up by district courts who have no respect for their opinions or the work that they do or the years of notice and comment rulemaking that goes before a rule is promulgated, then even fucking right?

0:36:38 Thomas: Really ties the room together.

0:37:10 Thomas: Yeah.

0:37:11 Charles: One judge in a small district who was appointed by, you know, a president who's hostile to all of it, right, can just undo all of that. What But is the point of having agencies?

0:37:26 Thomas: Right. Yeah. I was just going to say. Is this the kind of thing where because we're talking about federal agencies. It's not the case that it's like. Oh, okay. Well, but there's going to be like California decisions. That'll be cool. And there's going to be, you know, red state decisions that will suck. It's like, you can just judge get, shop for any of these things and instantly get a kind of a national stay on it. Or is that not right?

0:37:47 Matt: Obviously going to wind up with massive circuit splits in a way that we didn't before, because the Supreme court can't possibly review all of this, and there are going to be so many more opportunities to challenge things. So, we might end up with very different Ninth Circuit law from Fifth Circuit law. I mean, we already do in lots of places, but I think much more dramatically, it seems to me.

0:38:01 Charles: And the federal government is always the defendant, there is effectively a nationwide stay on a lot of these things because the judge says you can't enforce this regulation. And I mean, sometimes, like it used to be that they would be sometimes more modest than that. The Supreme Court hates nationwide stays, but the lower courts that are conservative always find reasons that they're the exception to tie the federal government's hands. And so what it ends up with is like a kind of chaotic background where like cases that go at the same time, you could end up with a circuit split.

But if one of them is an injunction against the government, it's not a helpful split to the government. So, you be interesting to see how it shakes out. But the lack of deference means that it gives courts an insane, insane amount of power. And I mean, like for one other example of like the fake humility of the opinion, he says that the case was decided by Chevron, was decided by a bare quorum of the court, which is true. There were only six judges because Rehnquist, O 'Connor, and Marshall, who probably all had Chevron stock or something closely related. I mean, I don't even mean that judgmentally.

0:38:54 Matt: Right. Sure.

0:38:54 Thomas: Right. Yeah. Hey,

0:39:37 Charles: They're people who have investments.

0:39:39 Thomas: They they had the decency to recuse that we don't have that anymore. So there's saints in my mind. Are you going to tell you about to tell me that this decision, even though it had a bear, whatever was five or more of them.

0:39:40 Charles: They did. Exactly.

0:39:52 Charles: -0.

0:39:53 Thomas: Well, but it was a bear quorum you know, as we, yeah, even

0:39:54 Charles: It was a six. It was a bare quorum of people hearing it, but six judges. So even if the other three thought it was wrong, like what would he have written? Would This have been like merely a 6 -3 decision like today's.

0:40:08 Thomas: Even if the other three were allowed to bring like a plus one, the best they could have done is to, that is

0:40:09 Matt: Yeah.

0:40:14 Charles: That's right. That That's right. If Martha Ann had shown up with a flag to vote against it, though, this was pre Alito.

0:40:17 Thomas: Insane. Yeah. Yeah, and my flag gets a vote too, yeah Unreal.

0:40:23 Charles: Yeah, this is pre-Alito. But he just adds in this kind of these layers of bullshit to make it sound more plausible. And it's not right. I said, it's superficially plausible. Like it does. The Skidmore versus Swift rule is not facially horrible. Is horrible in the context of what you know the lower courts and even ultimately the Supreme Court want to do with this, you know, and that's when I kind of have to give props to the legal realists because it's like, yeah, I know what's going on here.

0:40:37 Thomas: Mm -hmm, yeah Yeah. Yeah.

0:41:01 Matt: Sure, it's right there. Actually,

0:41:01 Charles: Oh,

0:41:01 Thomas: I mean, you could Imagine that if the reality of the, I federal circuit system or something was different. Legal realism in me says that they probably wouldn't have ruled that way if it meant that like, oh, somehow the levers are the other way and the left is going to get their way with all that. Um, and also I just have to say, it's one of those, uh, incredibly tough, like would you you rathers but would you rather have the fake humility of a Roberts and have to read that or the zero humility of a Gorsuch and read that just just question for the panel or Lito? Yeah.

0:41:33 Charles: Good.

0:41:30 Matt: Or a little, yeah. Yeah, I like it when they just show themselves. I'd much rather, because I've represented the immunity too, which we're going to talk about. But the immunity decision, again, has that same kind of like, looks like a law. It looks like, but when you break it down, he's doing what he's going.

0:41:35 Thomas: Yeah.

0:41:45 Charles: Mean, I mean, good news, you get both. Buy one, get one free because Gorsuch wrote a concurrence and

0:41:48 Matt: Right. Yeah, it's all in there. A long concurrence.

0:41:51 Thomas: Oh, Yeah. I Think that was on the coupon that the billionaire, uh, buy one, get one free for giving them a private jet ride. Yeah. Yeah.

0:41:59 Matt: Yeah.

0:41:57 Charles: Yeah. Yeah. No, he did, no, he get it tricked out, uh, coach, and you get wife, uh, of the, uh, justice opening a legal recruiting consultancy where everyone who wants to do business before the court calls her first, um, is actually her job. So Gorsuch wrote the opinion concurring saying, I gotta be honest, I think all of the people at agencies are idiots and we should never have been deferring to them. It's a huge separation of powers problem, and the fact that we ever thought that the wheels of making government work in a helpful way was a reasonable way of approaching this is madness.

0:42:04 Thomas: Yeah.

0:42:15 Matt: Naturally.

0:42:42 Matt: Well, and of course, this to him is what Alito was to Dobbs, right? So what Dobbs is to Alito. I mean, this is his life work is to dismantle the administrative state and take on Chevron, and he's done it now.

0:42:45 Charles: Yeah.

0:42:48 Thomas: Yeah, I didn't learn civics very well as a kid, but I don't remember the balance and separation of powers being only in effect as long as you don't think one of the branches sucks. Like, I thought that wasn't like a prerequisite. Like, we'll respect the other branch unless we disagree with them. Then no.

0:43:06 Charles: Gotta read the footnotes.

0:43:07 Thomas: Oh, that's the, that's what got me. I never did. I never read those footnotes. Arguments is brought to you by Quince! You ever open your closet and think, why did I buy that? I open my closet and I'm like, think why doesn't anything fit? I really do have a hard time with clothes that I think are fine. And then all of a sudden don't seem fine. Once I get home, home. I don't know what that is. Think it's because mannequins are so good looking. That's the thing. You can't beat, you see the mannequin, you're like, boy, that guy looks awesome.

I want to look like that. And then you go home and you got all these features that are, I have eyebrows and teeth, and that just ruins the look. But, but, forget all that crap. Since shopping with Quince, the percentage of things I actually like has gone up astronomically. Quince has all the seasonal must -haves like 100% European linen shirts for $30, performance polos, and wear. Best part, all Quince items are priced 50 to 80% less than similar brands.

Pull that off by partnering directly with top factories. And so Quince cuts out the cost of the middlemen and passes the savings on to us. Quince only works with factories that use safe, ethical, and responsible manufacturing practices, with premium fabrics and finishes. What's not to love? Love the shorts. I got from Quince because I don't know if you know this. It is, it was 113 degrees today. So pants aren't an option. Not gonna lie. I need shorts. These are great shorts.

Shorts have gotten so so much better looking and stylish, say, didn't tell me to focus on shorts or anything, it's just really hot so I want to emphasize, they have everything, it's juste that I'm thinking about shorts because it's a million degrees. Anyway, if you'd like to fill your closet with timeless pieces you'll be wearing for summers to come with, with Quince, go to quince.com/OA for free shipping on your order and 365-day returns. That's Q-U-I-N-C-E dot com slash OA to get free shipping and 365-day returns. That is almost a year. Dot com slash OA.

0:43:12 Charles: Yeah.

0:45:23 Matt: The other decision from July 1st, because it does supercharge this Loper-Bright decision. Corner Post got really overlooked because of the obvious, so should talk about Corner Post for a second, a Barrett decision. When you combine it with Loper Bright, because I'm saying maybe Loper Bright, in the end,, I think it is going to be consequential, but it's not going to be the sky is falling the way people are talking about. But when you combine find out with Corner Post, the sky is looking a lot darker because you're looking at the ability just to break down what Corner Post was very quickly. Was a case that was brought by a truck stop in North Dakota, which didn't like the debit card transactions.

0:45:29 Charles: Yep.

0:45:55 Thomas: Like the actual truck stop, right? Like a sentient truck stop.

0:45:57 Matt: Yeah, yeah. Corner Post, yeah, it rose up and it's

0:46:00 Charles: Corporations

0:45:59 Thomas: Oh, okay. Oh gotcha. Yeah. That's true. Yeah, man. I am just not, I'm not sharp today.

0:46:01 Charles: Are people, Thomas come on this has

0:46:03 Matt: Right. Yeah.

0:46:05 Thomas: Yeah what

0:46:05 Charles: To have come up before

0:46:07 Thomas: Do

0:46:06 Matt: So under the Administrative Procedures Act, you get six years to challenge, as a statute of limitations, to challenge and say that you've been injured by a regulation. They opened about a year, I think, after the statute of had passed and whatever regulation they're challenging for debit card transactions. And so Barrett finds, very concerningly, that you can work from the date of the injury and not the date of when the regulation was passed, which means this is just open season on regulations now. That just means anybody can just step in and challenge any regulation from any time. And when you combine that with Loper Bright and Relentless here saying that the courts have absolute authority basically to not have to defer if they don't want to, of course, they still can defer. Just don't have to. Concerns me when you add that factor. That's not great.

0:46:46 Charles: Yeah. Yeah, and I mean, and what they said was, I always have to worry about a court that like rules by inference, and you know, and so they're like, look, they know they know how they say Congress knows how to write a statute of repose. A statute of repos is like a supercharged statute of limitations because there can be exceptions to statutes of limitations, things like, you know, the statute doesn't start running until, you know, you've been injured, that kind of thing.

0:46:55 Matt: Yeah.

0:46:58 Thomas: You mean by that exactly? Yeah, good.

0:47:22 Charles: Right, where someone cheats you on a contract, contract, but they hid the fact that you were cheated until after the statute expired or whatever, so they can expand the statute. But a statute of repose says that there's a drop dead date with no exceptions from when you can bring an action, and they're like, well, Congress knows how to write a statute of repose, and this regulation doesn't even say that it's a statute of repose.

And so injury is the benchmark of when the statute of limitations starts running, right? And so that, like I said, the same thing about Corner Post actually on Blue Sky, that it was like a combination of ways to sort of, you bring all of these cases.

And it's interesting that you brought up the, you know, the immigration context, where the Board of Immigration Appeals is like a nightmare to deal with, like, doesn't give me a lot of hope that this judicial system is going to be any kinder, even though it's possible that they will be. I do not think generally, because, you know, they, you know, the Supreme Court is generally very hostile to, uh, giving an inch on immigration when the federal government doesn't want to, like,

0:47:21 Thomas: Yeah right.

0:48:27 Thomas: Yeah, well,

0:48:48 Matt: Sure.

0:48:48 Charles: They, the immigrants never get the benefit of the doubt, right?

0:48:48 Matt: But I have some faith at least in some of the circuits. And then again, as long as we're talking about where our baseline is, I know this is pretty bad. But at least we're going to have the ability to not have the Ninth Circuit, the First Circuit, Third Circuit overruled constantly as they have been by the BI under Brandeis. So there's at least that, because not all of these are going to... I mean, very few of these going to get to the Supreme Court, but I generally do agree that it goes both ways in all of those things. It's just a lot of nuance.

0:48:55 Charles: Yeah. Yeah. Think that the agency is a persistent nightmare, then it might be nice to have the judge in the United States take a crack at it. But, you I said, there's no good news.

0:49:32 Matt: Yeah. I think Corner Post really got slipped in there. It's strange that it was on the last decision day along with, because it's big for administrative law, but I don't think it's as earth -shaking as the immunity decision,

0:49:41 Thomas: I hadn't heard about it. Kind of sounds like it just, it really just gives them a bevy of choices in how to get rid of what they don't like in, in agencies, and yeah, and exactly, it's kind of what it sounds like.

0:49:51 Matt: Yeah. Yeah, yeah.

0:49:53 Charles: Feel, I like the only reason Corner Post was on the last day is because it probably cites Loper Bright. You know, and so you know, it just you kind of, kind of forced them, uh, they just sort of had to hold that one until the other one came out.

0:49:58 Matt: Oh, right. You don't want to give away the game. Yeah?

0:50:09 Charles: Um, it obviously, like, that isn't like a bury the case kind of thing, you bad for administrative law purposes, but the idea that, um, statute of limitations runs from the date of injury is fairly standard for statute of limitation purposes, and so, and though, like I said, Congress will never fix it because they never fix anything, anything, uh, they wanted to make it into a statute of repose, they could, right, very easily could give agencies that kind of six year, you can't challenge it on, you, these grounds, um,

0:50:08 Thomas: Right, and

0:50:09 Matt: Sure, sure. No, no, yeah, right, for other things. Sure.

0:50:48 Thomas: This is the part of the show where I say, hey, if we just wanted to vote enough, we could actually do it, like, I, you know, it's not going to fix everything in the world, but like, this is another one of those things where they've been, the, the, the Supreme Court has been relying on this gimmick, as you're saying, of like, hey, Congress wanted to do this. Well, they could, all along knowing that Congress just cannot do anything for various reasons. But if we, you know, if there were enough Democrats in Congress, things could happen, maybe we could try that. Should we try that? I don't know. Just a thought.

0:50:53 Charles: I know, if, if we don't all clap, Tinkerbell dies. Mean, I, yeah, except you do, you beat the structural problems of the Constitution, like, but that's ultimately why, I mean, that there's never any good news because we have two senators from Wyoming who count just as much as the two senators from New York. We have, uh, districts all, all over the country that overweight land with respect to people because Democrats tend to cluster in small geographic areas around, you and, universities, whereas the vast expanse of nothing is, you know, most of the districts.

0:51:35 Thomas: Yeah. Yep.

0:52:00 Thomas: It's very political, that vast expanse of nothing. It's Very Politically Active. It's got a lot of opinions, that land. Yeah, okay, so what's the, like, super easy solution that I'm missing? I just feel like it's a bunch of bad solutions. Yeah, there's no easy ones. Yeah, yeah.

0:52:03 Charles: It is. They care a lot. No. No, there are no solutions. Like, That's I don't even know why I do this. Because end, like, there's a real sort of sad futility to it all. Like, it feels almost like necromancy. Who cares? Because you can study administrative law for 30 years, feel like you have a sense of how it works, and then a new set of judges get appointed and I've, they're like, you know, looked into the seer stone and I have discovered.

0:52:43 Thomas: Nepo baby judges, yeah? Like, damn it, I should have studied divination, not necromancy. What was I thinking?

0:52:50 Charles: Yeah. Yeah, that's it. Like, all of a sudden I have recovered something that 250 years of constitutional interpretation is, is missed and so this is now the new rule.

0:53:02 Thomas: Yeah.

0:53:06 Matt: Yeah pretty much.

0:53:06 Thomas: All right, well, that sucks. Normally I'm the cynic of the show, but you've really outdone me on that one. I don't know.

0:53:13 Charles: Oh. No, no.

0:53:14 Thomas: The part where you've like decided, why am I even here? What am I doing?

0:53:14 Charles: No, yeah. Look. I most you ever see Airplane, how everyone who everyone talking about to the pilot about his flashbacks is in some mode of suicide, when it cuts back after the flashback, that's what you get from talking to me about law.

0:53:21 Thomas: Yeah. Back in the day. Yeah, all right. Well, the National Suicide Prevention Hotline is, and then we'll put, dub that in there. Wait, no, the court just got rid of that. Sorry, darn. No. Right. Well, this was a pleasure. We'll obviously have the plugs that we know about in the show notes and all that, but if there's anything you'd like to send our listeners to, what would it be?

0:53:41 Charles: Right. Yeah, yeah.

0:53:54 Matt: Anywhere else we can hear you about talk the futility of law?

0:53:57 Charles: Uh, well, there are a couple, uh, ALAB series, uh, is at alabseries.com, that's All Lawyers Are Bastards, um, right now, now we're in the middle of a miniseries on Alex Jones, particularly with respect to the Sandy Hook litigation. Have covered like of his background and the of his show and the kind of freak show that surrounds him by way of his guests.

And we will be getting to you the litigation itself and kind he completely dropped the ball and we also just sort of cover other uh stuff it's more about honestly it's about legal culture and the idiosyncrasies of legal culture than it is the kind of thing that I did here today whenever I try to talk about the Supreme Court they shove me in a closet they do they have no interest in that um that was more Mike Dick the terrain it's more kind of how Five Four, you know, talks about things that's not like they don't want me to do that and that's number one and then when football season rolls around I have a Saints podcast called uh City Saint and Country Saint with a friend of mine because I'm a weirdo from Queens who is a Saints but I

0:54:05 Thomas: To agree.

0:54:11 Matt: Excellent. It's

0:54:12 Thomas: Yeah,

0:55:16 Charles: Have a friend who is from outside of New Orleans, you we have an in-season Saints podcast where we talk about each game with a guest who roots for the other team. And uh and we we talk with them after the game where whoever wins gets you know anywhere from one to three minutes to absolutely shit on whoever lost just just walk all over them and then we kind of talk about whatever um football sometimes not yeah then uh you girls on all socials edit uga rles on

0:55:16 Thomas: That is weird.

0:55:26 Thomas: Oh, that's funny.

0:55:54 Thomas: That sounds so fun. I really appreciate this. Helped It me understand it better. I'm just so optimistic after listening to you.

0:55:59 Charles: Yeah uh right thanks so much all

0:56:04 Matt: Talking to you. Great.

0:56:05 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:56:22 Charles: You know just that I also make the jokes along the way

0:56:25 Thomas: Sure. Yeah, that's great, too, yeah.

0:56:25 Charles: Yeah

0:56:26 Matt: I got a few too. I'm not joke -less.

0:56:27 Thomas: Hey, yeah, we can all make jokes. I never claimed a monopoly on jokes. Might start doing law, though, if I if you're gonna make jokes, I'm

0:56:33 Charles: I, yeah. Certainly can, just don't do it for money.