Wednesday’s arguments were all about whether the Supreme Court should do away with the unworkable Chevron deference. //

Another common theme pushed, especially by Kagan, concerned the question of “who decides?” If there is an ambiguity, Kagan posed several times, do we want the agency or the courts to make the policy decision?

The correct answer, however, is neither: Congress should make policy decisions and draft statutes that provide clarity on the law. When Congress delegates authority to administrative agencies, such authority should similarly be clear.

Chevron deference has allowed Congress for far too long to avoid making tough calls, and while some of the justices seemed fine with that approach, it is inconsistent with our constitutional structure. //

Businesses need certainty, the solicitor general argued, and overturning Chevron would destroy the predictability of the law.

On the contrary, the fishing businesses’ attorneys stressed, what creates uncertainty is Chevron deference, which allows for each new administration to reverse prior regulations. Several justices seemed to share that viewpoint as well. Further, as several of the justices noted, the unworkability of a legal rule can justify its reversal, notwithstanding stare decisis — and several of the exchanges on Wednesday showed Chevron deference, in its current iteration, is unworkable. //

Right there could be the reason two undecided justices join to form a majority to overturn Chevron — it is just not workable because the lower courts won’t do the work required.