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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. The case before

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Speaker 1: the Supreme Court involved a Vietnam War veteran who says

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Speaker 1: he suffers from post traumatic stress syndrome and wants the

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Speaker 1: Department of Veterans Affairs to reconsider its denial of his

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Speaker 1: claim for benefits. But it's really about a broad issue

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Speaker 1: whether courts should defer to federal agency's interpretations of their

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Speaker 1: own regulations, making it one of the top business cases

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Speaker 1: of the term. Joining me is Stephen Vladdock, professor at

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Speaker 1: the University of Texas School of Law. Steve explained the

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Speaker 1: precedent and ruling that's in question here Hidgens. So the

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Speaker 1: short version is this kissing about an older Supreme courtsition

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Speaker 1: called our au e er an Hour is a lesser

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Speaker 1: known cousin of perhaps better known Chevron case, both of

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Speaker 1: which are about when federal courts will defer to reasonable

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Speaker 1: interpretations of ambiguous language by the government. So Chevron, the

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Speaker 1: sort of better known cases about when a statute is

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Speaker 1: ambiguous and the agency tasked with enforcing the statute says,

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Speaker 1: we think the ambiguity should be resolved this way. Hour

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Speaker 1: is about regulations. Hour is a step past Chevron, where

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Speaker 1: if there's a dispute over the meaning of an ambiguous

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Speaker 1: term in a government regulation, courts will generally side with

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Speaker 1: reasonable interpretations of that ambiguity by the agency. That's what

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Speaker 1: happens here. The Veterans Affairs Department had interpreted its own

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Speaker 1: regulations in a way that precluded the benefits that Mr

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Speaker 1: Kaiswar was seeking, and he's challenging it not on the

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Speaker 1: ground that they acted incorrectly, but that that interpretation was

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Speaker 1: not entitled to deference. Now, the our case was written

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Speaker 1: by a conservative icon, the late Justice antonin Scalia, and

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Speaker 1: yet it's under attacked by conservatives, and all five of

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Speaker 1: the conservative justices have question the our ruling in the past.

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Speaker 1: Why so, Yeah, I mean, we've seen a real shift

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Speaker 1: June in the last five ten years where what really

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Speaker 1: used to not necessarily be an ideological divide over these

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Speaker 1: difference doctrines has turned into one and where the conservative

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Speaker 1: justices we heard this from you know, then Judge Canalla's

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Speaker 1: confirmation here I am have talked about what they view

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Speaker 1: as a democratic accountability gap, that it's given far too

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Speaker 1: much power to unelected, unrepresentative bureaucrats and government agencies to

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Speaker 1: defer to these kinds of interpretations. I think the tricky part, June,

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Speaker 1: is the alternative isn't any more democratic. I mean, if

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Speaker 1: you get rid of these difference doctrines, that's not creating

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Speaker 1: a more room for Congress or for the president to

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Speaker 1: actually created more for courts, and so I think the

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Speaker 1: question is, you know, who do we better want resolving

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Speaker 1: these ambiguities, agencies that are taffed with enforcing of these

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Speaker 1: statutes and rules on a daily basis, or federal judges

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Speaker 1: who may have their own reasons for wanting to resolve

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Speaker 1: the ambiguities one way or the other. Liberal Justice Steven

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Speaker 1: Bryer said that overturning Hour would amount to the greatest

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Speaker 1: judicial power grabs since Marbury versus Madison? Is he going

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Speaker 1: a little far in that that may be a little

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Speaker 1: colorful on Justice Briar's part. I do think though, that

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Speaker 1: it's an important point that gets lost. You know, there's

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Speaker 1: there's so much discussion, there's so many sound bites about

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Speaker 1: how difference doctrines are bad for democracy. You know, Briar's

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Speaker 1: point is that the alternative is not any more democratic, right,

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Speaker 1: It's just about which unelected, unaccountable decision maker, you know,

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Speaker 1: we trust to get it right. Do we trust the

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Speaker 1: agency which is dealing with these often june very complicated,

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Speaker 1: intricate regulations and statutes, or would we prefer you know,

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Speaker 1: federal judges who, for better or for worse, aren't experts

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Speaker 1: in the field. I think reasonable folks can disagree. I

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Speaker 1: think part of the problem with the conversation that's been

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Speaker 1: happening in public about this doctrine is the assumption that

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Speaker 1: the alternative to these difference doctrines is greater accountability. I

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Speaker 1: think justus is Briar's right. The alternatives greater judicial power.

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Speaker 1: And you know, some folks will see as a future,

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Speaker 1: but others will as a bug. Greg's Store was at

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Speaker 1: the arguments and he said that it appears the court

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Speaker 1: will divide along ideological lines in the case. Is it

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Speaker 1: more likely that they'll completely overturn the precedent or scale

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Speaker 1: it back? So you know, it's interesting. I was a

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Speaker 1: little surprised by the position that the Trump administration took.

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Speaker 1: The Solicitor General, you know, who's the putitive defendant in

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Speaker 1: this case, took the position the court actually shouldn't overrule Hour,

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Speaker 1: that it should just be a little bit tighter and

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Speaker 1: when Hour is appropriate, that is to say, narrow the

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Speaker 1: circumstances in which courts will defer to reasonable interpretations of

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Speaker 1: regulations by the agency that promulgated them. I think that's

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Speaker 1: probably the position that's most likely to carry the day.

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Speaker 1: But we've been seeing, especially from the conservative justices Hins

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Speaker 1: dropping left and right in opinion after opinion, that this

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Speaker 1: is not just about the our doctrine um. This is

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Speaker 1: actually also about the Chevron doctrin, which June is a

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Speaker 1: much bigger deal and ultimately, I think a much more

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Speaker 1: important referendum on the role of courts versus agencies when

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Speaker 1: it comes to these highly technical, highly complex federal statutes

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Speaker 1: and rules. Business groups have been urging that our be overturned,

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Speaker 1: especially in this case. Explain why, well, I mean, I

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Speaker 1: think it's a bit of a simplification, but you know,

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Speaker 1: for the most part, the power that agencies have in

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Speaker 1: a world in which there's our deference is a power

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Speaker 1: that is often used to regulate private entities, to regulate banks,

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Speaker 1: if you are you know, the financial regulation agencies, to

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Speaker 1: regulate you know, industrial concerns, if you are like the

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Speaker 1: Environmental Protection Agency. And so I think the big corporations

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Speaker 1: worry that the sort of the regulatory powers of agencies

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Speaker 1: are most often directed at them. They won't necessarily win

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Speaker 1: all of these cases if instead these decisions are being

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Speaker 1: made by judges. But I think, you know, especially looking

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Speaker 1: at who's been appointing judges over the last two years,

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Speaker 1: you know, these kinds of corporations are making a strategic

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Speaker 1: decision that they'd rather take their chance is with these

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Speaker 1: judges than with these agencies. But Steve might have hurt

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Speaker 1: the Trump administration's attempt to roll back Obama era rules,

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Speaker 1: for example, like those protecting the environment, if it's up

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Speaker 1: to judges instead of the agency. So I mean, in

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Speaker 1: one sense, June, I think it will it will make

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Speaker 1: it harder. Anything that gives agencies less power is obviously

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Speaker 1: bad for the current president because it gives the current

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Speaker 1: president less flexibility. On the other hand, I mean, I

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Speaker 1: think if you are the Trump administration and you know,

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Speaker 1: one of your big pushes in judicial confirmations has been

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Speaker 1: judges who share your concerns about overregulation or about deregulation.

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Speaker 1: Maybe you're actually not that worried about the judges making

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Speaker 1: those moves now, and you're more worried about the next

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Speaker 1: president who may not share your views about deregulation, and

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Speaker 1: that this is a sort of long term game or

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Speaker 1: a long term strategy to generally weaken the authority of agencies,

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Speaker 1: even if the cost is short term weakening of this administration.

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Speaker 1: We have to leave it there, Steve, this is a

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Speaker 1: fascinating topic, though. We'll have you back what the decision

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Speaker 1: is made. That's Stephen Vladdock. He's a professor at the

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Speaker 1: University of Texas School of Law. Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot

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Speaker 1: com slash podcast. I'm June Grosso. This is Bloomberg