Loper Bright Enterprises v. Raimondo, No. 22-451 (slip op., June 28, 2024) — Dissent (Kagan, J.), chunk 33

14 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
long engagement with a regulatory scheme, and policy
choice. It is courts (not agencies) that “have no special competence”—or even legitimacy—when those are the things a
decision calls for.
Second, the majority complains that an ambiguity or gap
does not “necessarily reflect a congressional intent that an
agency” should have primary interpretive authority. Ante,
at 22. On that score, I’ll agr ee with the premise: It doesn’t
“necessarily” do so. Chevron is built on a presumption. The
decision does not maintain that Congress in every case
wants the agency, rather than a court, to fill in gaps. The
decision maintains that when Congress does not expressly
pick one or the other, we need a default rule; and the best
default rule—agency or court?—is the one we think Congress would generally want. As to why Congress would generally want the agency: The ans wer lies in everything said
above about Congress’s delegati on of regulatory power to
the agency and the agency’s special competencies. See supra, at 9–11. The majority appears to think it is a showstopping rejoinder to note that many statutory gaps and
ambiguities are “unintentional.” Ante, at 22. But to begin,
many are not; the ratio between the two is uncertain. See
supra, at 4–5. And to end, why should that matter in any
event? Congress may not have deliberately introduced a
gap or ambiguity into the statute; but it knows that pretty
much everything it drafts will someday be found to contain
such a “flaw.” Given that knowledge, Chevron asks, what
would Congress want? The presumed answer is again the
same (for the same reasons): The agency. And as with any
default rule, if Congress decides otherwise, all it need do is
say.
In that respect, the proof really is in the pudding: Con -
gress basically never says otherwise, suggesting that Chevron chose the presumption aligning with legislative intent
(or, in the majority’s words, “approximat[ing] reality,” ante,
at 22). Over the last four decades, Congress has authorized

15 Cite as: 603 U. S. ____ (2024)
KAGAN, J., dissenting
or reauthorized hundreds of statutes. The drafters of those
statutes knew all about Chevron. See A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the
Canons: Part I, 65 Stan. L. Rev. 901, 928 (fig. 2), 994 (2013).
So if they had wanted a different assignment of interpretive
responsibility, they would have inserted a provision to that
effect. With just a pair of exceptions I know of, they did not.
See 12 U. S. C. §25b(b)(5)(A) (exception #1); 15 U. S. C.
§8302(c)(3)(A) (exception #2). Similarly, Congress has declined to enact proposed legislation that would abolish
Chevron across the board. See S. 909, 116th Cong., 1st
Sess., §2 (2019) (still a bill, not a law); H. R. 5, 115th Cong.,
1st Sess., §202 (2017) (same). So to the extent the majority
is worried that the Chevron presumption is “fiction[al],”
ante, at 26—as all legal presumptions in some sense are—
it has gotten less and less so every day for 40 years. The
congressional reaction shows as well as anything could that
the Chevron Court read Congress right.
II
The majority’s principal arguments are in a different
vein. Around 80 years after the APA was enacted and 40
years after Chevron, the majority has decided that the former precludes the latter. The APA’s Section 706, the ma -
jority says, “makes clear” that agency interpretations of
statutes “are not entitled to deference.” Ante, at 14–15 (emphasis in original). And that provision, the majority continues, codified the contemporaneous law, which likewise did
not allow for deference. See ante, at 9–13, 15–16. But neither the APA nor the pre-APA state of the law does the work
that the majority claims. Both are perfectly compatible
with Chevron deference.
Section 706, enacted with the rest of the APA in 1946,
provides for judicial review of agency action. It states: “To
the extent necessary to decision and when presented, the

16 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an
agency action.” 5 U. S. C. §706.
That text, contra the majority, “does not resolve the Chevron question.” C. Sunstein, Chevron As Law, 107 Geo. L. J.
1613, 1642 (2019) (Sunstein). Or said a bit differently, Section 706 is “generally indeterminate” on the matter of deference. A. Vermeule, Judgi ng Under Uncertainty 207
(2006) (Vermeule). The majority highlights the phrase “decide all relevant questions of law” (italicizing the “all”), and
notes that the provision “prescribes no deferential standard” for answering those questions. Ante, at 14. But just
as the provision does not prescribe a deferential standard
of review, so too it does not prescribe a de novo standard of
review (in which the court starts from scratch, without giving deference). In point of fact, Section 706 does not specify
any standard of review for construing statutes. See Kisor,
588 U. S., at 581 (plurality opinion). And when a court uses
a deferential standard—here, by deciding whether an
agency reading is reasonable—it just as much “decide[s]” a
“relevant question[] of law” as when it uses a de novo standard. §706. The deferring co urt then conforms to Section
706 “by determining whether the agency has stayed within
the bounds of its assigned discretion—that is, whether the
agency has construed [the statute it administers] reasonably.” J. Manning, Chevron and the Reasonable Legislator,
128 Harv. L. Rev. 457, 459 (2014); see Arlington v. FCC, 569
U. S. 290, 317 (2013) (R
OBERTS, C. J., dissenting) (“We do
not ignore [Section 706’s] command when we afford an
agency’s statutory interpretation Chevron deference; we respect it”).2
——————
2 The majority tries to buttress its ar gument with a stray sentence or
two from the APA’s legislative history, but the same response holds. As
the majority notes, see ante, at 15, the House and Senate Reports each
stated that Section 706 “provid[ed] that questions of law are for courts