Here's an article where they are trying to tell us this is a bad thing. But I would replace the word "chaos" with "freedom."

https://www.law360.com/tax-authority/federal/articles/1787079

'Chaos' Warning Resonates As Justices Mull Chevron's Fate

By Jeff Overley · 2024-01-18 00:21:25 -0500 ·

A conservative-led campaign against the 40-year-old doctrine of judicial deference to federal regulators appeared vulnerable at U.S. Supreme Court arguments Wednesday to predictions of a litigation tsunami, as justices fretted about an onslaught of suits and politicization of the federal judiciary.

The potential weakness appeared repeatedly during climactic arguments in two cases aimed at ending or eroding so-called Chevron deference, which dates to a 1984 Supreme Court decision and obligates federal judges to accept reasonable agency readings of ambiguous laws, even if those judges prefer a different reading.

If deference disappears, a wave of suits would swiftly inundate courthouses nationwide and threaten "profound disruption," U.S. Solicitor General Elizabeth B. Prelogar told the justices in her opening remarks Wednesday. An immediate goal, Prelogar said, would be the undoing of past rulings that deferred to the government's views when shooting down challenges to regulations or administrative proceedings.

"Thousands of judicial decisions sustaining an agency's rulemaking or adjudication as reasonable would be open to challenge," the solicitor general said.

Justice Amy Coney Barrett, a conservative and potential swing vote in the two cases, seemed to take that warning seriously, asking if aggrieved challengers would inevitably seek to reprise past cases that they lost.

"Isn't the door then open for litigants to come back?" Justice Barrett asked Latham & Watkins LLP partner Roman Martinez, counsel for challengers in one of the cases. "Isn't it inviting a flood of litigation, even if for the moment those holdings stay intact?"

Martinez conceded that "it's true that people could come and say, 'Look, the interpretive methods have changed ... and we think that a different result now should apply.'" But "it would be the rare case" where a prior decision was so clearly incorrect and important to warrant a different outcome, and "that would be the safeguard," Martinez added.

John J. Vecchione of the New Civil Liberties Alliance, counsel to challengers in one of the two cases, told Law360 in a Wednesday interview that multiple justices — "especially Justice Barrett" — wanted answers about the potential torrent of lawsuits.

"It's very important, and that is why the litigants" have trotted out "the parade of horribles," Vecchione said. But, he added, even if a deluge of new challenges arises in a post-Chevron world, statutes of limitations and other procedural obstacles will often prove insurmountable.

"I do think that it's an overblown concern," Vecchione said.

The high court's three liberal justices also voiced various worries during Wednesday's three-and-a-half-hour arguments in the two cases: Relentless Inc. v. U.S. Department of Commerce and Loper Bright Enterprises v. Raimondo. Each case involves herring fishery regulations, and each asks the high court to overrule its landmark decision in Chevron USA Inc. v. Natural Resources Defense Council.

If Chevron is overruled and upheaval ensues, it could come in several forms. There's the potential that seemingly settled matters will be relitigated. There's the potential for far more litigation if critics of agency regulations believe they have better odds in a post-Chevron world. And there's the possibility of conflicting decisions on the same issues.

On that latter point, Justice Ketanji Brown Jackson invoked the high court's 2013 decision in City of Arlington v. Federal Communications Commission . In that case, Justice Antonin Scalia adamantly defended the "stabilizing purpose of Chevron" and cautioned that it would be "replaced by chaos" if the doctrine's critics succeeded in weakening it.

"What do we do about the chaos that we talked about in the City of Arlington case?" Justice Jackson asked, raising the specter of divergent decisions on the same topics in "different courts from all of these different jurisdictions."

Prelogar echoed that rhetoric, at one point forecasting "thousands of decisions that could stand to be displaced and create chaos if Chevron is overruled."

Martinez — as well as Clement & Murphy PLLC partner Paul D. Clement, who argued for challengers in Loper Bright — each appeared to acknowledge the likelihood of more litigation and more conflicting decisions in a post-Chevron world. But they also pushed back on the implication that those increases would be bad; the two attorneys insisted that the status quo reflects a legal playing field tilted in the government's favor, making people reluctant to bring meritorious cases and unlikely to prevail if they do so.

If Chevron endures, "you're going to have parties being less likely to challenge agency action that is unlawful under the best interpretation of the statute, because they know that when they go into court, the judge is not going to apply its independent, neutral judgment, and instead is going to tilt the scales and defer to the agency," Martinez said.

Clement offered a related observation, telling the justices that "the kind of uniformity that you get under Chevron is something only the government could love, because every court in the country has to agree on the current administration's view of a debatable statute."

Ideology is another point of contention. In the Loper Bright case, two administrative law scholars — Kent Barnett of the University of Georgia School of Law and Christopher J. Walker of the University of Michigan Law School — filed an amicus brief that discussed empirical research on circuit court opinions and averred that "Chevron limits politics in judicial decision-making."

"The most liberal panels agreed with conservative agency statutory interpretations only 24% of the time when they did not use Chevron deference but 51% when they did. Likewise, the most conservative panels agreed with liberal agency interpretations only 18% of the time without Chevron deference but 66% with it," Barnett and Walker told the justices in their brief.

Justice Elena Kagan alluded to that issue on Wednesday, saying that different approaches among different judges "were part of the impetus for Chevron because those differences were looking awfully ideological in nature, awfully partisan in nature. And Chevron, all the empirical evidence suggests, dampens that kind of ideological division between courts."

The justices ultimately appeared closely divided, and it seemed possible that they might ultimately issue a decision like the one in Kisor v. Wilkie . That 2019 decision dealt with so-called Auer deference to agency interpretations of ambiguous regulations, and it preserved the deference in a watered-down form.

Prelogar suggested Wednesday that a similar decision might also be "the right thing to do" with Chevron deference. Importantly, the Kisor v. Wilkie decision stressed that "abandoning Auer deference would cast doubt on many settled constructions of rules" and likely "allow relitigation of any decision based on Auer."

Robin Thurston, legal director of the left-leaning Democracy Forward Foundation, which filed an amicus brief for small-business groups that Prelogar cited Wednesday, told Law360 in an interview that Chief Justice John G. Roberts Jr. and Justice Brett Kavanaugh also offered glimmers of hope for Chevron supporters by making clear that Congress can appropriately delegate authority to agencies.

"Emphasizing that ... delegation of policymaking authority is really important, regardless of how the justices rule altogether on Chevron," she said. "That would remain an incredibly important way for agencies to carry out congressionally authorized statutes and programs and things that benefit people."

Thurston also told Law360 that "Justice Barrett's emphasis on floodgates of litigation is promising," saying it could result in a middle-ground opinion that preserves some sort of deference toward agency expertise.

"I found it hopeful that she raised that point," Thurston said. "It remains to be seen whether it carries the day with the court."

The cases are Loper Bright Enterprises et al. v. Gina Raimondo et al., number 22-451, and Relentless Inc. et al. v. U.S. Department of Commerce et al., number 22-1219, before the Supreme Court of the United States.

--Editing by Emily Kokoll and Jay Jackson Jr.