Loper Bright Enterprises v. Raimondo, No. 22-451 (slip op., June 28, 2024) — Dissent (Kagan, J.), chunk 34

17 Cite as: 603 U. S. ____ (2024)
KAGAN, J., dissenting
Section 706’s references to standards of review in other
contexts only further undercut the majority’s argument.
The majority notes that Section 706 requires deferential review for agency fact-finding and policy-making (under, respectively, a substantial-evidence standard and an arbitrary-and-capricious standard). See ante, at 14. Congress,
the majority claims, “surely would have articulated a similarly deferential standard applicable to questions of law
had it intended to depart” from de novo review. Ibid.
Surely? In another part of Section 706, Congress explicitly
referred to de novo review. §706(2)(F). With all those ref -
erences to standards of review—both deferential and not—
running around Section 706, what is “telling” ( ante, at 14)
is the absence of any standard for reviewing an agency’s
statutory constructions. That silence left the matter, as
noted above, “generally indeterminate”: Section 706 neither
mandates nor forbids Chevron -style deference. Vermeule
207.
3
——————
rather than agencies to decide in the last analysis.” H. R. Rep. No. 1980,
79th Cong., 2d Sess., 44 (1946); S. Rep. No. 752, 79th Cong., 1st Sess., 28
(1945). But that statement also does not address the standard of review
that courts should then use. When a court defers under Chevron, it reviews the agency’s construction for reasonableness “in the last analysis.”
The views of Representative Walter, which the majority also cites, further demonstrate my point. He stated that the APA would require courts
to “determine independently all releva nt questions of law,” but he also
stated that courts would be required to “exercise . . . independent judgment” in applying the substantial-evidence standard (a deferential
standard if ever there were one). 92 Cong. Rec. 5654 (1946). He therefore
did not equate “independent” review with de novo review; he thought
that a court could conduct independent review of agency action using a
deferential standard.
3 In a footnote responding to the last two paragraphs, the majority
raises the white flag on Section 706’s text. See ante, at 15, n. 4. Yes, it
finally concedes, Section 706 does not say that de novo review is required
for an agency’s statutory construction. Rather, the majority says, “some
things go without saying,” and de novo review is such a thing. See ibid.
But why? What extra-textual considerations force us to read Section 706
the majority’s way? In its footnote, th e majority repairs only to history.

18 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
And contra the majority, most “respected commentators”
understood Section 706 in that way—as allowing, even if
not requiring, deference. Ante, at 16. The finest administrative law scholars of the time (call them that generation’s
Manning, Sunstein, and Vermeule) certainly did. Professor
Louis Jaffe described something very like the Chevron twostep as the preferred method of reviewing agency interpretations under the APA. A court, he said, first “must decide
as a ‘question of law’ whether there is ‘discretion’ in the
premises.” Judicial Control of Administrative Action 570
(1965). That is akin to step 1: Did Congress speak to the
issue, or did it leave openness? And if the latter, Jaffe continued, the agency’s view “if ‘reasonable’ is free of control.”
Ibid. That of course looks like step 2: defer if reasonable.
And just in case that description was too complicated, Jaffe
conveyed his main point this way: The argument that
courts “must decide all questions of law”—as if there were
no agency in the picture—“is, in my opinion, unsound.” Id.,
at 569. Similarly, Professor Kenneth Culp Davis, author of
the then-preeminent treatise on administrative law, noted
with approval that “reasonableness” review of agency interpretations—in which courts “refused to substitute judgment”—had “survived the APA.” Administrative Law 880,
883, 885 (1951) (Davis). Other contemporaneous scholars
and experts agreed. See R. Levin, The APA and the Assault
on Deference, 106 Minn. L. Rev. 125, 181–183 (2021)
(Levin) (listing many of them). They did not see in their
own time what the majority finds there today.
4
——————
But as I will explain below, the majori ty also gets wrong the most relevant history, pertaining to how judicial review of agency interpretations
operated in the years before the APA was enacted. See infra, at 19–23.
4 I concede one exception (whose view was “almost completely isolated,”
Levin 181), but his comments on Section 706 refute a different aspect of
the majority’s argument. Professor John Dickinson, as the majority
notes, thought that Section 706 precluded courts from deferring to
agency interpretations. See Admini strative Procedure Act: Scope and
Grounds of Broadened Judicial Review, 33 A. B. A. J. 434, 516 (1947)

19 Cite as: 603 U. S. ____ (2024)
KAGAN, J., dissenting
Nor, evidently, did the Supreme Court. In the years after
the APA was enacted, the Court “never indicated that section 706 rejected the idea that courts might defer to agency
interpretations of law.” Sunstein 1654. Indeed, not a single
Justice so much as floated that view of the APA. To the
contrary, the Court issued a number of decisions in those
years deferring to an agency’s statutory interpretation.
See, e.g., Unemployment Compensation Comm’n of Alaska
v. Aragon, 329 U. S. 143, 153–154 (1946); NLRB v. E. C.
Atkins & Co., 331 U. S. 398, 403 (1947); Cardillo v. Liberty
Mut. Ins. Co., 330 U. S. 469, 478–479 (1947). And that continued right up until Chevron . See, e.g. , Mitchell v. Budd,
350 U. S. 473, 480 (1956); Zenith Radio Corp. v. United
States, 437 U. S. 443, 450 (1978). To be clear: Deference in
those years was not always gi ven to interpretations that
would receive it under Chevron. The practice then was
more inconsistent and less fully elaborated than it later became. The point here is only that the Court came nowhere
close to accepting the majority’s view of the APA. Take the
language from Section 706 that the majority most relies on:
“decide all relevant questions of law.” See ante, at 14. In
the decade after the APA’s e nactment, those words were
used only four times in Supreme Court opinions (all in footnotes)—and never to suggest that courts could not defer to
agency interpretations. See Sunstein 1656.
The majority’s view of Section 706 likewise gets no support from how judicial review operated in the years leading
up to the APA. That prior hi story matters: As the majority
recognizes, Section 706 was generally understood to “restate[] the present law as to the scope of judicial review.”
——————
(Dickinson); ante, at 16. But unlike the majority, he viewed that bar as
“a change” to, not a restatement of, pre-APA law. Compare Dickinson
516 with ante, at 15–16. So if the majority really wants to rely on Professor Dickinson, it will have to give up the claim, which I address below,
that the law before the APA forbade deference. See infra, at 19–23.