DOJ's Dec. 15 SCOTUS Brief Is Its Last Shot Before Oral Argument to Defend Chevron

The government will have a final opportunity before Jan. 17 oral argument at the U.S. Supreme Court to stand by its defense of Chevron deference when it files its responding brief Dec. 15 in Relentless v. Commerce Department (docket 22-1219).

The three fishing companies that are parties to Relentless constitute the second set of petitioners to ask SCOTUS to do away with Chevron. The petitioners devoted large portions of their opening brief Nov. 20 to attacks on the government’s Chevron defenses (see 2311210001). The Relentless petitioners' reply brief is due Jan. 5, only 12 days before SCOTUS holds oral argument on Relentless "in tandem" with the other pending Chevron case, Loper Bright Enterprises v. Raimondo (docket 22-451).

In the view of the petitioners in Relentless, and the many interests that support its position, Chevron violates the Constitution “by compromising judges’ independence when interpreting the law,” said the opening brief. Chevron also violates the Fifth Amendment’s guarantee of due process of law, it said. By requiring courts to resolve ambiguities in favor of the government, it introduces “systematic bias into the adjudication of cases,” it said.

Yet the government’s “substantive defense” of Chevron rests on “a fictional presumption that Congress deliberately delegated the power to interpret ambiguous statutes” to federal agencies, said the opening brief. “That fiction is just that -- a fiction -- and it cannot be allowed to distort our constitutional structure,” it said.

The government’s “delegation theory” also holds that agencies can exercise their Chevron-granted interpretive authority by imposing their preferred policy outcomes, said the opening brief. But that “conflates legal interpretation with policymaking,” and law and policy “are different.”

Determining the meaning of the words enacted by Congress “requires legal judgment, focused on a close analysis of text, structure, history, precedent, and traditional tools of construction,” said the opening brief. It’s not “an exercise in policymaking,” it said. Article III judges “are free to respectfully consider the views of federal agencies, but they may not defer, even in hard cases,” it said.

The government’s case for “upholding” Chevron agency deference under the doctrine of stare decisis (to stand by things decided) is “just as flawed,” said the opening brief. Stare decisis “aims to foster consistency and stability in the development of law,” it said. But Chevron “is a singularly destabilizing influence,” it added. It allows agencies “to overrule courts and the agencies’ own prior interpretations, thereby leaving key questions of federal law perpetually unresolved.”