GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES THOMAS H. BUFFINGTON v. DENIS R. MCDONOUGH, SECRETARY OF VETERAN AFFAIRS ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 21–972. Decided November 7, 2022
The petition for a writ of certiorari is denied. JUSTICE GORSUCH, dissenting from the denial of certio- rari. Thomas Buffington served this Nation well but the De- partment of Veterans Affairs (VA) failed him. Relying on its own internal regulations, the agency denied Mr. Buff- ington disability benefits that Congress promised him by statute. Nor is Mr. Buffington’s case an isolated one. The VA’s misguided rules harm a wide swath of disabled veter- ans. Making matters worse, the lower courts in this case turned aside Mr. Buffington’s petition asking them to set aside the agency’s regulations and apply Congress’s statu- tory instructions as written. Instead, the courts invoked “Chevron deference,” bypassed any independent review of the relevant statutes, and allowed the agency to continue to employ its rules to the detriment of veterans. Respectfully, those who have served in the Nation’s Armed Forces de- serve better from our agencies and courts alike. * During his eight years in the Air Force in the 1990s, Mr. Buffington suffered a facial scar, a back injury, and tinni- tus. After his discharge in 2000, he joined the Air National Guard. At about the same time and in recognition of inju- ries he suffered while on active duty, the VA assessed Mr. Buffington 10 percent disabled and awarded him benefits. The VA did this pursuant to a congressional promise that “the United States will pay” compensation “[f]or disability 2 BUFFINGTON v. MCDONOUGH
resulting from personal injury suffered or disease con- tracted in line of duty.” 38 U. S. C. §1131. Mr. Buffington’s time away from active duty proved short lived. In 2003, the federal government called his Guard unit into service. As a result, Mr. Buffington served again on active duty, including from July 2003 to June 2004, and from November 2004 to July 2005. During Mr. Buffington’s time on active duty, the VA suspended his disability bene- fits. In doing so, everyone agrees that the agency acted properly under a statute that empowers it to withhold ben- efits “for any period for which [a service member] receives active service pay.” §5304(c). The trouble began after Mr. Buffington left active duty in 2005 and the VA failed to resume his disability benefits. When Mr. Buffington realized what had happened and in- quired about the problem in January 2009, the agency acknowledged its legal duty to pay and agreed to resume future benefits. But the agency also informed Mr. Buffing- ton that it refused to pay benefits retroactively beyond Feb- ruary 2008. All of which meant that Mr. Buffington missed out on about three years of disability payments, from 2005 to 2008. Why did the VA refuse to pay these benefits? According to current agency rules, a veteran must ask for his disabil- ity payments to resume after a second (or subsequent) stint on active duty. If a veteran fails to ask for his benefits again, the agency will not provide them. Nor will the agency pay benefits retroactively beyond “1 year prior to the date” of a veteran’s reinstatement request. 38 CFR §3.654(b)(2) (2021). In the Court of Appeals for Veterans Claims, Mr. Buffing- ton challenged the agency’s rules as inconsistent with Con- gress’s statutory commands. After all, the law says that the VA may suspend disability payments only for periods when a veteran “receives active service pay.” 38 U. S. C. §5304(c). The court, however, found it unnecessary to decide for itself Cite as: 598 U. S. ____ (2022) 3
G ORSUCH,, J., GORSUCH J, dissenting dissenting
whether Mr. Buffington’s reading of the law was the best one. Instead, the court concluded that “Congress did not speak to the precise question at issue: Whether the Secre- tary may predicate the effective date for the recommence- ment of benefits on the date of the veteran’s claim.” Buff- ington v. Wilkie, 31 Vet. App. 293, 301 (Ct. App. Vet. Cl. 2019). Given that asserted ambiguity, the court invoked Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), and deferred to the agency’s rules. More of the same awaited Mr. Buffington in his ap- peal to the Federal Circuit. See 7 F. 4th 1361 (2021). Still, not everyone saw the case the same way. In the Federal Circuit, Judge O’Malley dissented, arguing that Mr. Buffington should have prevailed based on bedrock principles of statutory interpretation. The law Congress adopted promised Mr. Buffington benefits from the moment he left active duty in 2005; the VA had no business requir- ing him to petition for them a second time; and the agency had no business withholding three years’ worth of overdue payments. See id., at 1367–1368. In the Court of Appeals for Veterans Claims, Judge Greenberg contended that the majority’s invocation of Chevron was “nothing more than a rubber stamping of the Government’s attempt to misuse its authority granted” by Congress. 31 Vet. App., at 308. Courts, he said, must “stop this business of making up ex- cuses for judges to abdicate their job of interpreting the law.” Id., at 307 (internal quotation marks omitted). I very much doubt that the courts below did right by Mr. Buffington. As Judges O’Malley and Greenberg high- lighted, Congress has instructed the VA to make disability payments to injured veterans like Mr. Buffington. In §5304(c), Congress suspended that obligation only for peri- ods when a veteran “receives active service pay.” Nothing in the statute requires a veteran to ask the agency to re- sume benefits it is already legally obligated to pay. Nor 4 BUFFINGTON v. MCDONOUGH
does anything in the statute allow the VA to withhold over- due benefits. It seems that even the VA once acknowledged all this. Before adopting its current rules, the agency’s pre- vious rule imposed no time bar and indicated that payments “may be resumed the day following release from active duty if otherwise in order.” 26 Fed. Reg. 1599 (1961) (emphasis added) (establishing 38 CFR §3.654(b)). Even more troubling than the answer the lower courts reached in this case, however, is how they got there. Nei- ther the Court of Appeals for Veterans Claims nor the Fed- eral Circuit offered a definitive and independent interpre- tation of the law Congress wrote. Instead, both courts simply deferred to the agency’s (current) regulations as “reasonable” ones and said this Court’s decision in Chevron required them to do so. That kind of judicial abdication dis- serves both our veterans and the law. * From the beginning of the Republic, the American people have rightly expected our courts to resolve disputes about their rights and duties under law without fear or favor to any party—the Executive Branch included. See A. Bamzai, The Origins of Judicial Deference to Executive Interpreta- tion, 126 Yale L. J. 908, 987 (2017). In this country, it was “well established” early on that courts are not “bound by . . . administrative construction[s]” of the law and those con- structions may “be taken into account only to the extent that [they are] supported by valid reasons.” Burnet v. Chi- cago Portrait Co., 285 U. S. 1, 16 (1932). To be sure, as the administrative state spread its wings in the 1940s this Court toyed with the possibility of “de- part[ing] from [this] longstanding tradition of independent, non-deferential judicial determination of questions of law,” at least when it came to “so-called mixed questions of law and fact.” E. Bernick, Envisioning Administrative Proce- dure Act Originalism, 70 Admin. L. Rev. 807, 814 (2018); Cite as: 598 U. S. ____ (2022) 5
see, e.g., Gray v. Powell, 314 U. S. 402, 411–412 (1941); NLRB v. Hearst Publications, Inc., 322 U. S. 111, 131 (1944). But it didn’t take long for a chorus of prominent voices to denounce that prospect. For example, Roscoe Pound, a former Dean of Harvard Law School, led a com- mittee of the American Bar Association (ABA) that pro- tested against the “recen[t]” trend of “giving the interpreta- tion of [statutes] to the executive, or to administrative officials”—a trend that Pound worried would lead to “ad- ministrative absolutism.” The Place of the Judiciary in a Democratic Polity, 27 A. B. A. J. 133, 136–137 (1941) (Pound); see also Gray, 314 U. S., at 418–421 (Roberts, J., dissenting) (warning this Court against “abdicat[ing] its function as a court of review” and “complete[ly] revers[ing] . . . the normal and usual method of construing a statute”). In 1946, Congress put any question in this area to rest when it adopted the Administrative Procedure Act (APA). Despite sharp divisions along partisan lines, Congress passed the APA unanimously thanks to a “hard-fought com- promise” based in part on proposals from Pound and the ABA. G. Shepherd, Fierce Compromise: The Administra- tive Procedure Act Emerges From New Deal Politics, 90 Nw. U. L. Rev. 1557, 1560, 1646–1647, 1649–1652 (1996). On the one hand, the APA allowed agencies to issue binding regulations and required courts to defer to agency factfind- ings. See 5 U. S. C. §§553, 556–557, 706(2)(E). On the other hand, the APA provided that courts “shall decide all relevant questions of law, interpret constitutional and stat- utory provisions, and determine the meaning or applicabil- ity of the terms of agency action.” §706 (emphasis added); see also §§706(2)(A)–(C) (instructing courts to “hold unlaw- ful and set aside” agency actions “not in accordance with law”). In short, the APA appeared “unequivocally to instruct courts to apply independent judgment on all questions of law.” T. Merrill, The Chevron Doctrine: Its Rise and Fall, 6 BUFFINGTON v. MCDONOUGH
and the Future of the Administrative State 47 (2022) (Mer- rill 2022). As a leading contemporary scholar of adminis- trative law put it, the statute imposed a “clear mandate” for courts to decide questions of law “for [themselves] in the ex- ercise of [their] own independent judgment.” J. Dickinson, Administrative Procedure Act: Scope and Grounds of Broadened Judicial Review, 33 A. B. A. J. 434, 516 (1947). “More explicit words to impose this mandate could hardly be found.” Ibid. After the APA’s passage, courts more or less followed this mandate faithfully for decades. As Justice Robert H. Jack- son—himself an ardent New Dealer before joining the bench—explained, courts would respectfully consider Exec- utive Branch interpretations of the law, but the weight courts afforded them “depend[ed] upon the[ir] thorough- ness . . . , [their] consistency with earlier and later pro- nouncements, and all those factors which g[i]ve [them] power to persuade.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944); accord, United States v. American Trucking Assns., Inc., 310 U. S. 534, 544 (1940) (“The interpretation of the meaning of statutes, as applied to justiciable contro- versies, is exclusively a judicial function”). In fact, many prominent judicial opinions in the decades following the adoption of the APA never even mentioned Executive Branch interpretation of disputed statutory terms. See J. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Over- ruled, 42 Conn. L. Rev. 779, 792 (2010). As some tell it, Chevron effected a revolution in 1984. As the story goes, the decision overthrew all that came before and enshrined a new rule requiring courts to defer to Exec- utive Branch interpretations of the law. No longer did ex- ecutive officials have to be right about the law’s meaning to prevail in court—all they had to do was point to some rele- vant statutory ambiguity or silence and avoid being egre- giously wrong. The lower courts in this case adopted just Cite as: 598 U. S. ____ (2022) 7
this line of reasoning when they turned aside Mr. Buffing- ton’s appeal. That view of Chevron, however, reads too much into too little. Doubtless, Chevron contained language that later courts would read as representing a “significant depar- tur[e]from prior law.” T. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 255 (2014) (Merrill 2014). Most notably, Chevron included a passage musing that, “if [a] statute is silent or ambiguous with respect to [a] specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” 467 U. S., at 843. But Chevron also proceeded to restate the traditional rule: “If a court, em- ploying traditional tools of statutory construction, ascer- tains that Congress had an intention on the precise ques- tion at issue, that intention is the law and must be given effect.” Ibid., and n. 9. Tellingly, too, Chevron did not express disagreement with (let alone purport to overrule) precedents reciting the tradi- tional rule that judges must exercise independent judgment about the law’s meaning. Nor did the decision argue that the APA either tolerates or commands deference to Execu- tive Branch views of the law. To the contrary, Chevron pro- fessed merely to apply “well-settled principles.” Id., at 845. Many of the cases Chevron cited to support its judgment stood only for the traditional proposition that courts afford respectful consideration, not deference, to executive inter- pretations of the law. See, e.g., Burnet, 285 U. S., at 16 (“The Court is not bound by an administrative construction, and if that construction is not uniform and consistent, it will be taken into account only to the extent that it is sup- ported by valid reasons”); United States v. Moore, 95 U. S. 760, 762–763 (1878) (an executive interpretation that had “always heretofore obtained” was “entitled to the most re- spectful consideration”). And the decision’s sole citation to legal scholarship, 467 U. S., at 843, was to Roscoe Pound, 8 BUFFINGTON v. MCDONOUGH
who long championed de novo judicial review. Pound 136– 137. If Chevron amounted to a revolution, it seems almost eve- ryone missed it. The decision, issued by a bare quorum of the Court, sparked not a single word in concurrence or dis- sent. Chevron’s author, Justice Stevens, later character- ized the decision as a “simpl[e] . . . restatement of existing law, nothing more or less.” Merrill 2014, at 275, and n. 77. And in the “19 argued cases” in the following term “that presented some kind of question about whether the Court should defer to an agency interpretation of statutory law,” this Court cited Chevron just once. Merrill 2014, at 276. By many estimations, Chevron seemed “destined to obscurity.” Merrill 2014, at 276. In truth, it took years for Chevron to morph into some- thing truly revolutionary. Three years after Chevron, Jus- tice Scalia wrote a concurrence that seized on its passing musings about deference and argued for a new rule requir- ing courts to defer to “reasonable” Executive Branch inter- pretations of the law whenever a “ ‘statute is silent or am- biguous.’ ” NLRB v. Food & Commercial Workers, 484 U. S. 112, 133–134 (1987). Two years later, Justice Scalia con- tinued his campaign in an academic article. See Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511 (1989). Eventually, these efforts began to bear fruit as a majority of the Court came to embrace Jus- tice Scalia’s view. See Merrill 2022, at 93–94. * Over time, however, experience has exposed grave prob- lems with this expansive reconstruction of Chevron. So much so that even the initial champion of the project came to express a change of heart. Not only does reading Chevron so broadly badly stretch the terms of the original decision. Not only does it call on courts to depart from the terms of Cite as: 598 U. S. ____ (2022) 9
the APA and our longstanding and never-overruled prece- dent. It also turns out to pose a serious threat to some of our most fundamental commitments as judges and courts. In this country, we like to boast that persons who come to court are entitled to have independent judges, not politi- cally motivated actors, resolve their rights and duties under law. Here, we promise, individuals may appeal to neutral magistrates to resolve their disputes about “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Every- one, we say, is entitled to a judicial decision “without re- spect to persons,” 28 U. S. C. §453, and a “fair trial in a fair tribunal,” In re Murchison, 349 U. S. 133, 136 (1955). Under a broad reading of Chevron, however, courts often fail to deliver on all these promises. Rather than provide individuals with the best understanding of their rights and duties under law a neutral magistrate can muster, we out- source our interpretive responsibilities. Rather than say what the law is, we tell those who come before us to go ask a bureaucrat. In the process, we introduce into judicial pro- ceedings a “systematic bias toward one of the parties.” P. Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187, 1212 (2016). Nor do we exhibit bias in favor of just any party. We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else. In these ways, a maximalist account of Chevron risks turning Marbury on its head. Overreading Chevron introduces still other incongruities into our law. Often we insist that it is a basic requirement of due process that “ ‘no man can be a judge in his own case.’ ” Williams v. Pennsylvania, 579 U. S. 1, 8–9 (2016). As far back as Calder v. Bull, 3 Dall. 386 (1798), this Court recognized that it would be “against all reason” to “entrust a Legislature” with the power to “mak[e] a man a Judge in his own cause,” and therefore “it cannot be presumed that [the people] have done it,” id., at 388 (opinion of Chase, J.) 10 BUFFINGTON v. MCDONOUGH
(emphasis deleted). Yet a broad reading of Chevron re- quires us to presume exactly that. So long as Executive Branch officials can identify a statutory ambiguity or si- lence, we must assume that the law permits them to judge the scope of their own powers and duties—at least so long as their decisions can be said to be “reasonable.” See K. Saunders, Agency Interpretations and Judicial Review: A Search for Limitations on the Controlling Effect Given Agency Constructions, 30 Ariz. L. Rev. 769, 788–789 (1988). Then there are the ancient doctrines of lenity and contra proferentem. From the founding, courts in this country have construed ambiguities in penal laws against the gov- ernment and with lenity toward affected persons—here, we promise, our courts favor individual liberty, not prosecu- tors, prison time, and penal fines. See Wooden v. United States, 595 U. S. ___, ___ (2022) (GORSUCH, J., concurring in judgment) (slip op., at 6). Traditionally, too, our courts have long and often understood that, “as between the gov- ernment and the individual[,] the benefit of the doubt” about the meaning of an ambiguous law must be “given to the individual, not to authority; for the state makes the laws.” Lane v. State, 120 Neb. 302, 232 N. W. 96, 98 (1930); see, e.g., Caldwell v. State, 115 Ohio St. 458, 460–461, 154 N. E. 792, 793 (1926). A rule requiring judicial deference to executive interpretations of statutory laws—especially laws that carry both civil and criminal penalties for their violation (as so many do)—cannot be easily reconciled with either of these historic commitments. A broad reconstruction of Chevron defies still other norms. When reading statutes, we insist that courts pay careful attention to text, context, and traditional tools of in- terpretation. We demand interpretations that comport with how a reasonable reader would have understood the law at the time of its adoption. See, e.g., New Prime Inc. v. Oliveira, 586 U. S. ___, ___ (2019). A rule requiring us to Cite as: 598 U. S. ____ (2022) 11
suppose that statutory silences and ambiguities are both al- ways intentional and always created by Congress to favor the government over its citizens fits with none of this. A rule like that is neither a traditional nor a reasonable way to read laws. It is a fiction through and through—and “one that requires a pretty hefty suspension of disbelief at that.” Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142, 1153 (CA10 2016) (Gorsuch, J., concurring). Nor has the maximalist reading of Chevron even proven workable in practice. To this day, the federal government, Chevron’s biggest beneficiary, has yet to offer a coherent ex- planation for when a statute is sufficiently ambiguous to trigger deference. See, e.g., Tr. of Oral Arg. in American Hospital Assn. v. Becerra, O. T. 2021, No. 20–1114, pp. 71– 72 (Assistant to the Solicitor General: “I don’t think I can give you an answer to th[e] question” of “[h]ow much ambi- guity is enough”). Thanks to all this ambiguity about am- biguity, courts have pursued “wildly different” approaches. B. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2152 (2016) (Kavanaugh). Along the way, too, Chevron has become pitted with exceptions and caveats— including for cases of “vast economic and political signifi- cance,” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (internal quotation marks omitted), and those in which Congress has not delegated authority to an agency “to make rules with force of law,” United States v. Mead Corp., 533 U. S. 218, 237 (2001). Far from proving a clear and stable rule, the maximalist account of Chevron has left behind only a wake of uncertainty. Overreading Chevron has profound consequences for how our government operates as well. It encourages executive officials to write ever more ambitious rules on the strength of ever thinner statutory terms, all in the hope that some later court will find their work to be at least marginally rea- sonable. When one administration departs and the next ar- rives, a broad reading of Chevron frees new officials to undo 12 BUFFINGTON v. MCDONOUGH
the ambitious work of their predecessors and proceed in the opposite direction with equal zeal. In the process, we en- courage executive agents not to aspire to fidelity to the stat- utes Congress has adopted, but to do what they might while they can. See R. Pierce, The Combination of Chevron and Political Polarity Has Awful Effects, 70 Duke L. J. Online 91, 92 (2021). Consider the regulations before us. Some time ago, the VA promulgated a rule consistent with Congress’s instruc- tions, one providing that a veteran’s disability benefits “may be resumed the day following [his] release from active duty.” 26 Fed. Reg. 1599 (establishing 38 CFR §3.654(b)). In the years that followed, Congress did not amend its laws in any relevant way. Yet agency officials proceeded to re- vise their rules anyway to place new burdens on veterans and make their own jobs easier. Expansive views of Chev- ron encourage and reward just these sorts of self-serving gambits. Overreading Chevron holds still other consequences for the rule of law. When the law’s meaning is never liquidated by a final independent judicial decision, when executive agents can at any time replace one reasonable interpreta- tion with another, individuals can never be sure of their le- gal rights and duties. Instead, they are left to guess what some executive official might “reasonably” decree the law to be today, tomorrow, next year, or after the next election. “[E]very relevant actor may agree” that the agency’s latest pronouncement does not represent best interpretation of the law, yet all the same each new iteration “carries the force of law.” Kavanaugh 2151. Fair notice gives way to vast uncertainty. Nor does everyone suffer equally. Sophisticated entities may be able to find their way. They or their lawyers can follow the latest editions of the Code of Federal Regula- tions—the compilation of Executive Branch rules that now Cite as: 598 U. S. ____ (2022) 13
clocks in at over 180,000 pages and sees thousands of fur- ther pages added each year. The powerful and wealthy can plan for and predict future regulatory changes. More than that, they can lobby agencies for new rules that match their preferences. Sometimes they can even capture the very agencies charged with regulating them. But what about or- dinary Americans? Today, administrative law doesn’t confine itself to the regulation of large and sophisticated entities. Our admin- istrative state “touches almost every aspect of daily life.” Free Enterprise Fund v. Public Company Accounting Over- sight Bd., 561 U. S. 477, 499 (2010). And often it is ordinary individuals who are unexpectedly caught in the whipsaw of all the rule changes a broad reading of Chevron invites. Mr. Buffington’s case illustrates the impact on disabled veter- ans. Those who left active service before the VA changed its rule received all their promised benefits; those who served later do not. Not because of any change in law, only a change in an agency’s view. So many other individuals who interact with the federal government have found them- selves facing similar fates—including retirees who depend on federal social security benefits, immigrants hoping to win lawful admission to this country, and those who seek federal health care benefits promised by law. See, e.g., Lambert v. Saul, 980 F. 3d 1266, 1275–1276 (CA9 2020); Valent v. Commissioner of Social Security, 918 F. 3d 516, 525 (CA6 2019) (Kethledge, J., dissenting); Gonzalez v. United States Atty. Gen., 820 F. 3d 399, 404–406 (CA11 2016) (per curiam); Padilla-Caldera v. Holder, 637 F. 3d 1140 (CA10 2011). * With the passage of time, the problems with reading too much into Chevron have become widely appreciated. Even Justice Scalia reconsidered his earlier support for broad ju- dicial deference to executive interpretations of the law. See 14 BUFFINGTON v. MCDONOUGH
Decker v. Northwest Environmental Defense Center, 568 U. S. 597, 617–618, 621 (2013) (opinion concurring in part and dissenting in part) (calling on the Court to overrule the related Auer deference doctrine, which Justice Scalia had also pioneered); Perez v. Mortgage Bankers Assn., 575 U. S. 92, 109–110 (2015) (opinion concurring in judgment). Many other Members of this Court have expressly questioned Chevron maximalism. See, e.g., Pereira v. Sessions, 585 U. S. ___, ___ (2018) (Kennedy, J., concurring); Michigan v. EPA, 576 U. S. 743, 760–764 (2015) (THOMAS, J., concur- ring); Arlington v. FCC, 569 U. S. 290, 312–328 (2013) (ROBERTS, C. J., dissenting); Gutierrez-Brizuela, 834 F. 3d, at 1153 (Gorsuch, J., concurring); Kavanaugh 2150–2156. The federal government itself now often waives or forfeits arguments for Chevron deference before this Court—and it does so even in cases that might have once seemed obvious candidates for the doctrine’s application. See, e.g., Hol- lyFrontier Cheyenne Refining, LLC v. Renewable Fuels Assn., 594 U. S.___, ___ (2021) (slip op., at 11) (because the government did not seek Chevron deference we “decline[d] to consider” it). As a result of these developments, this Court has not invoked the broad reading of Chevron in many years. Lower federal courts have also largely disavowed the pro- ject. One recent survey revealed that a substantial major- ity of federal appellate judges disapprove of the broad read- ing of Chevron and avoid applying it when they can. See A. Gluck & R. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Ap- peals, 131 Harv. L. Rev. 1298, 1312–1313 (2018). An ex- traordinary number of federal judges have written about the problems associated with reading Chevron broadly too. See, e.g., Egan v. Delaware River Port Auth., 851 F. 3d 263, 278 (CA3 2017) (Jordan, J., concurring); Voigt v. Coyote Creek Mining Co., 980 F. 3d 1191, 1203–1204 (CA8 2020) (Stras, J., dissenting); Valent, 918 F. 3d, at 524 (Kethledge, Cite as: 598 U. S. ____ (2022) 15
J., dissenting); United States v. Havis, 907 F. 3d 439, 448– 450 (CA6 2019) (Thapar, J., concurring), rev’d en banc, 927 F. 3d 382 (per curiam); Carter v. Welles-Bowen Realty, Inc., 736 F. 3d 722, 729–736 (CA6 2013) (Sutton, J., concurring). Other notable voices have also spoken. Several state courts have refused to import a broad understanding of Chevron in their own administrative law jurisprudence. See, e.g., Tetra Tech EC, Inc. v. Wisconsin Dept. of Revenue, 2018 WI 75, ¶67, 382 Wis. 2d 496, 554–555, 914 N. W. 2d 21, 50; Ellis-Hall Consultants v. Pub. Serv. Comm’n, 2016 UT 34, ¶32, 379 P. 3d 1270, 1275; see generally L. Phillips, Chevron in the States? Not So Much, 89 Miss. L. J. 313, 364 (2020) (observing that most States have declined to follow Chevron). Fifteen States have filed an amici brief in this case asking us to follow their lead. Brief for Indiana et al. as Amici Curiae on Pet. for Cert. 1. And courts in other countries that often consult American administrative law practices have declined to adopt the doctrine. See, e.g., K. Barnett & L. Vinson, Chevron Abroad, 96 Notre Dame L. Rev. 621, 651 (2020) (under British law, an “error of law” is generally “subject to judicial review de novo”); M. Ber- natt, Transatlantic Perspective on Judicial Deference in Administrative Law, 22 Colum. J. European L. 275, 313 (2016) (“[I]t is clear, that there is no counterpart to the Chevron doctrine on the EU level”); E. Jordão & S. Rose- Ackerman, Judicial Review of Executive Policymaking in Advanced Democracies: Beyond Rights Review, 66 Admin. L. Rev. 1, 8 (2014). Unsurprisingly given all this, the aggressive reading of Chevron has more or less fallen into desuetude—the gov- ernment rarely invokes it, and courts even more rarely rely upon it. The Federal Circuit’s decision at issue here is thus something of an outlier. And maybe that is a reason to deny review of this case. Maybe Chevron maximalism has died of its own weight and is already effectively buried. But even if all that’s true, it offers little comfort for Mr. Buffington 16 BUFFINGTON v. MCDONOUGH
and the future veterans who will be forced to live with the VA’s rule and the Federal Circuit’s precedent. The same goes for other Americans who still find themselves caught in Chevron’s maw from time to time. No measure of silence (on this Court’s part) and no number of separate writings (on my part and so many others) will protect them. At this late hour, the whole project deserves a tombstone no one can miss. We should acknowledge forthrightly that Chev- ron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s mean- ing in the cases that come before the Nation’s courts. Some- day soon I hope we might.