Loper Bright Enterprises v. Raimondo, No. 22-451 (slip op., June 28, 2024) — Dissent (Kagan, J.), chunk 32

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KAGAN, J., dissenting
statutory ambiguities, as Congress well knows, is “often
more a question of policy than of law.” Pauley v. BethEn -
ergy Mines, Inc., 501 U. S. 680, 696 (1991). The task is less
one of construing a text than of balancing competing goals
and values. Consider the statutory directive to achieve
“substantial restoration of the [Grand Canyon’s] natural
quiet.” See supra, at 6. Someone is going to have to decide
exactly what that statute means for air traffic over the canyon. How many flights, in what places and at what times,
are consistent with restoring enough natural quiet on the
ground? That is a policy trade-off of a kind familiar to agencies—but peculiarly unsuited to judges. Or consider Chevron itself. As the Court there understood, the choice be -
tween defining a “stationary source” as a whole plant or as
a pollution-emitting device is a choice about how to “reconcile” two “manifestly competing interests.” 467 U. S., at
865. The plantwide definition relaxes the permitting requirement in the interest of promoting economic growth;
the device-specific definition strengthens that requirement
to better reduce air pollution. See id., at 851, 863, 866.
Again, that is a choice a judge should not be making, but
one an agency properly can. Agencies are “subject to the
supervision of the President, who in turn answers to the
public.” Kisor, 588 U. S., at 571–572 (plurality opinion). So
when faced with a statutory ambiguity, “an agency to which
Congress has delegated policymaking responsibilities” may
rely on an accountable actor’s “views of wise policy to inform
its judgments.” Chevron, 467 U. S., at 865.
None of this is to say that deference to agencies is always
appropriate. The Court over time has fine-tuned the Chevron regime to deny deference in classes of cases in which
Congress has no reason to prefer an agency to a court. The
majority treats those “refinements” as a flaw in the scheme,
ante, at 27, but they are anything but. Consider the rule
that an agency gets no deference when construing a statute
it is not responsible for administering. See Epic Systems

12 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
Corp. v. Lewis , 584 U. S. 497, 519–520 (2018). Well, of
course not—if Congress has not put an agency in charge of
implementing a statute, Congress would not have given the
agency a special role in its construction. Or take the rule
that an agency will not receive deference if it has reached
its decision without using—or without using properly—its
rulemaking or adjudicatory authority. See United States v.
Mead Corp., 533 U. S. 218, 226–227 (2001); Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 220 (2016). Again, that
should not be surprising: Congress expects that authoritative pronouncements on a law’s meaning will come from the
procedures it has enacted to foster “fairness and deliberation” in agency decision-making. Mead, 533 U. S., at 230.
Or finally, think of the “extraordinary cases” involving
questions of vast “economic and political significance” in
which the Court has declined to defer. King v. Burwell, 576
U. S. 473, 485–486 (2015). The theory is that Congress
would not have left matters of such import to an agency, but
would instead have insisted on maintaining control. So the
Chevron refinements proceed from the same place as the
original doctrine. Taken togeth er, they give interpretive
primacy to the agency when—but only when—it is acting,
as Congress specified, in the heartland of its delegated authority.
That carefully calibrated framework “reflects a sensitivity to the proper roles of the political and judicial branches.”
Pauley, 501 U. S., at 696. Where Congress has spoken, Congress has spoken; only its judgments matter. And courts
alone determine when that has happened: Using all their
normal interpretive tools, th ey decide whether Congress
has addressed a given issue. But when courts have decided
that Congress has not done so, a choice arises. Absent a
legislative directive, either the administering agency or a
court must take the lead. And the matter is more fit for the
agency. The decision is likely to involve the agency’s subject-matter expertise; to fall within its sphere of regulatory

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KAGAN, J., dissenting
experience; and to involve poli cy choices, including costbenefit assessments and trade-offs between conflicting values. So a court without relevant expertise or experience,
and without warrant to make policy calls, appropriately
steps back. The court still has a role to play: It polices the
agency to ensure that it acts within the zone of reasonable
options. But the court does not insert itself into an agency’s
expertise-driven, policy-laden functions. That is the arrangement best suited to keep every actor in its proper lane.
And it is the one best suited to ensure that Congress’s statutes work in the way Congress intended.
The majority makes two points in reply, neither convincing. First, it insists that “agencies have no special competence” in filling gaps or resolving ambiguities in regulatory
statutes; rather, “[c]ourts do.” Ante, at 23. Score one for
self-confidence; maybe not so high for self-reflection or
-knowledge. Of course courts often construe legal texts,
hopefully well. And Chevron’s first step takes full advantage of that talent: There, a court tries to divine what
Congress meant, even in the most complicated or abstruse
statutory schemes. The deference comes in only if the court
cannot do so—if the court must admit that standard legal
tools will not avail to fill a statutory silence or give content
to an ambiguous term. That is when the issues look like
the ones I started off with: When does an alpha amino acid
polymer qualify as a “protein”? How distinct is “distinct”
for squirrel populations? What size “geographic area” will
ensure appropriate hospital reimbursement? As between
two equally feasible understandings of “stationary source,”
should one choose the one more protective of the environment or the one more favorable to economic growth? The
idea that courts have “special competence” in deciding such
questions whereas agencies have “no[ne]” is, if I may say,
malarkey. Answering those questions right does not
mainly demand the interpretive skills courts possess. In -
stead, it demands one or more of: subject-matter expertise,