Loper Bright Enterprises v. Raimondo, No. 22-451 (slip op., June 28, 2024) — Dissent (Kagan, J.), chunk 29

JUSTICE KAGAN, with whom J USTICE SOTOMAYOR and
JUSTICE JACKSON join,* dissenting.
For 40 years, Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837 (1984), has served as a
cornerstone of administrative law, allocating responsibility
for statutory construction betw een courts and agencies.
Under Chevron, a court uses all its normal interpretive
tools to determine whether Congress has spoken to an issue. If the court finds Congress has done so, that is the end
of the matter; the agency’s views make no difference. But
if the court finds, at the end of its interpretive work, that
——————
*JUSTICE JACKSON did not participate in the consideration or decision
of the case in No. 22–451 and joins this opinion only as it applies to the
case in No. 22–1219.

2 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
Congress has left an ambiguity or gap, then a choice must
be made. Who should give content to a statute when Con -
gress’s instructions have run out? Should it be a court? Or
should it be the agency Congress has charged with admin -
istering the statute? The answer Chevron gives is that it
should usually be the agency, within the bounds of reasonableness. That rule has formed the backdrop against which
Congress, courts, and agencies—as well as regulated par -
ties and the public—all have operated for decades. It has
been applied in thousands of judicial decisions. It has be -
come part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial
markets honest.
And the rule is right. Th is Court has long understood
Chevron deference to reflect w hat Congress would want,
and so to be rooted in a pres umption of legislative intent.
Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those
statutes will inevitably contain ambiguities that some other
actor will have to resolve, and gaps that some other actor
will have to fill. And it would usually prefer that actor to
be the responsible agency, not a court. Some interpretive
issues arising in the regulatory context involve scientific or
technical subject matter. Agencies have expertise in those
areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs.
Agencies know those programs inside-out; again, courts do
not. And some present policy choices, including trade-offs
between competing goods. Agencies report to a President,
who in turn answers to the public for his policy calls; courts
have no such accountability and no proper basis for making
policy. And of course Congress has conferred on that expert, experienced, and politically accountable agency the
authority to administer—to make rules about and otherwise implement—the statute giving rise to the ambiguity or

3 Cite as: 603 U. S. ____ (2024)
KAGAN, J., dissenting
gap. Put all that together and deference to the agency is
the almost obvious choice, based on an implicit congressional delegation of interpreti ve authority. We defer, the
Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the
courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A., 517
U. S. 735, 740–741 (1996).
Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress
has left an area of interpretive discretion. A rule of judicial
humility gives way to a rule of judicial hubris. In recent
years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has
substituted its own judgment on workplace health for that
of the Occupational Safety and Health Administration; its
own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student
loans for that of the Department of Education. See, e.g.,
National Federation of Independent Business v. OSHA, 595
U. S. 109 (2022); West Virginia v. EPA, 597 U. S. 697 (2022);
Biden v. Nebraska, 600 U. S. 477 (2023). But evidently that
was, for this Court, all too piecemeal. In one fell swoop, the
majority today gives itself exclusive power over every open
issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have
enough on its plate, the majority turns itself into the coun -
try’s administrative czar. It defends that move as one (suddenly) required by the (nearl y 80-year-old) Administrative
Procedure Act. But the Act makes no such demand. To -
day’s decision is not one Congress directed. It is entirely
the majority’s choice.
And the majority cannot des troy one doctrine of judicial
humility without making a laughing-stock of a second. (If
opinions had titles, a good candidate for today’s would be
Hubris Squared.) Stare decisis is, among other things, a

4 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
way to remind judges that wisdom often lies in what prior
judges have done. It is a brake on the urge to convert “every
new judge’s opinion” into a new legal rule or regime. Dobbs
v. Jackson Women’s Health Organization , 597 U. S. 215,
388 (2022) (joint opinion of Breyer, S
OTOMAYOR, and
KAGAN, JJ., dissenting) (quoting 1 W. Blackstone, Com -
mentaries on the Laws of England 69 (7th ed. 1775)). Chevron is entrenched precedent, entitled to the protection of
stare decisis, as even the majority acknowledges. In fact,
Chevron is entitled to the supercharged version of that doctrine because Congress could always overrule the decision,
and because so many governmental and private actors have
relied on it for so long. Because that is so, the majority
needs a “particularly special justification” for its action. Kisor v. Wilkie , 588 U. S. 558, 588 (2019) (opinion of the
Court). But the majority has nothing that would qualify. It
barely tries to advance the usual factors this Court invokes
for overruling precedent. Its justification comes down, in
the end, to this: Courts must have more say over regulation—over the provision of health care, the protection of the
environment, the safety of consumer products, the efficacy
of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls
victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.
I
Begin with the problem that gave rise to Chevron (and
also to its older precursors): The regulatory statutes Con -
gress passes often contain ambiguities and gaps. Sometimes they are intentional. Perhaps Congress “consciously
desired” the administering agen cy to fill in aspects of the
legislative scheme, believing that regulatory experts would
be “in a better position” than legislators to do so. Chevron,
467 U. S., at 865. Or “perhaps Congress was unable to forge
a coalition on either side” of a question, and the contending