Justice Kagan with whom Justice sodomy and Justice Jackson join dissenting for 40 years Chevron USA incv natural resources defense Council Inc cour 1984 has served as a Cornerstone of administrative law allocating responsibility for statutory construction between 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 Congress has left an ambiguity or Gap then a choice must be made who should give content to a statute when congress's instructions have run out should it be a court or should it be the agency Congress has charged with administering 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 parties in the public all have operated for decades it has been applied in thousands of judicial decisions it has become 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 this court has long understood Chevron deference to reflect what Congress would want and so to be rooted in a presumption 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 cont text 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 tradeoffs 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 Poli 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 Gap put all that together and deference to the agency is the almost obvious choice based on an implicit Congressional Delegation of interpretive Authority we defer the court has explained because of a presumption that Congress would have desired the agent agency rather than the courts to exercise whatever degree of discretion the statute allows Smiley V City Bank South Dakota na 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 ceg National Federation of Independent Business V OSHA 2022 West Virginia V EPA 2022 Biden V Nebraska 2023 but evidently that was for this court all to peac meal in one Fell Swoop the majority today gives itself exclusive power over every open issue no matter how expertise dry thenen 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 country's administrative Zar it defends that move as one suddenly required by the nearly 80-year-old administrative procedure act but the ACT makes no such demand today's decision is not one Congress directed it is entirely the majority's choice and the majority cannot destroy 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 way to remind judges that wisdom often lies in what prior judges have done it is a break on the urge to convert every new judge's opinion into a new legal rule or regime dosv Jackson Women's Health Organization 2022 join opinion of Brier Sodor and Kagan JJ dissenting quoting 1 W Blackstone commentaries on the laws of England 697 Ed 1775 Chevron is entrenched precedent entitled to the protection of stair 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 wilky 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 healthcare the protection of the environment the safety of consumer products the efficacy of Transportation Systems and so on a long-standing 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 Congress passes often contain ambiguities and gaps some Times They Are intentional perhaps Congress consciously desired the administering agency to fill in aspects of the legislative scheme believing that regulatory experts would be in a better position than legislators to do so Chevron or perhaps Congress was unable to forge a coalition on either side of a question and the contending parties decided to take their chances with the agency's resolution I bid sometimes though the gaps or ambiguities are what might be thought of as predictable accidents they may be the result of sloppy drafting a not infrequent legislative occurrence or they may arise from the well-known limits of language or foresight Accord ante at 722 the subject matter of a statutory provision may be too specialized and varying to capture in its every detail kisore plurality opinion or the provision may give rise years or decades down the road to an issue the enacting Congress could not have anticipated whichever whatever the case whatever the reason the result is to create uncertainty about some aspect of a provision meaning consider a few examples from the case law they will help show what a typical Chevron question looks like or really what a typical Chevron question is because when choosing whether to send some class of questions mainly to a court or mainly to an agency abstract analysis can only go so far indeed it may obscure what matters most so I begin with the concrete under the public health Service Act the Food and Drug Administration FDA regulates biological products including proteins 42 USC stackers 262 i1 when does an alpha amino acid polymer qualify as such a protein must it have a specific defined sequence of amino acids see TAA Pharmaceuticals USA in vfda 514 F sub3 d66 DC 2020 Under The Endangered Species Act the fish and wildlife service must designate endangered vertebrate fish Wildlife species including distinct population segments of those species 16 USC 1532 16533 what makes one population segment distinct from another must the service treat the Washington state population of Western gray squirrels as distinct 0 0 because it is geographically separated from other Western gray squirrels or can the service take into account that the genetic makeup of the Washington population does not differ markedly from the rest test C Northwest ecosystem Alliance V United States fish and wildlife serve 475 f3d 1136 CA 9207 under the Medicare program reimbursements to hospitals are adjusted to reflect differences in hospital wage levels across Geographic areas 42 USC 1395 Dei how should the Department of Health and Human Services measure a geographic area by city by county by metropolitan area C bellw Hospital Center V levit 443 f163 ca2 2006 Congress directed the department of the interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park specifically to provide for substantial restoration of the Natural Quiet Cocker 3 B1 101 stat 676 cacer 3B 2 how much noise is consistent with the natural quiet and how much of the park for how many hours a day must be that quiet for the substantial restoration requirement to be met see Grand Canyon Air Tour Coalition V FAA 154 f3d 455 cadc1 1998 or take Chevron itself in amendments to the Clean Air Act Congress told states to require permits for modifying or constructing stationary sources of air pollution 42 USC perk 75025 does the term stationary Source refer to each pollution emitting piece of equipment within a plant or does it refer to the entire plant and thus allow escape from the permitting requirement when increased emissions from one piece of equipment are offset by reductions from another C 859 in each case a statutory phrase has more than one reasonable reading and Congress has not chosen among them it has not in any real world sense fixed the single best meaning at the time of enactment to use the majority's phrase anti at 22 a question thus arises who decides which of the possible readings should govern this court has long thought that the choice should usually fall to agencies with courts broadly deferring to their judgments for the last 40 years that Doctrine has gone by the name of Chevron Defence after the 1984 decision that formalized and canonized it in Chevron the court set out a simple two-part framework for reviewing an agency's interpretation of a statute that administers first the reviewing Court must determine whether Congress has directly spoken to the precise question at issue that inquiry is rigorous a court must exhaust all the traditional tools of statutory construction to Divine statutory meaning ID at 843 and9 and when it can find that meaning a single right answer that is the end of the matter the court cannot defer because it must give effect to the unambiguous expressed intent of Congress kisore opinion of the Court chevr Knight 43 but if the court after using its whole legal toolkit concludes that the statute is silent or ambiguous with respect to the specific issue it's in dispute for any of the not uncommon reasons discussed above then the court must seed the primary interpretive role I bid C Supra at at that second step the court asks only whether the agency construction is within the sphere of reasonable readings Chevron if it is the agency's interpretation of the statute that it everyday implements will control that rule the court has long explained rests on a presumption about legislative intent about what Congress wants when a statute it has charged an age and SOI with implementing contains an ambiguity or a gap C Smiley Maya 741 and enacting Congress as noted above knows those uncertainties will arise even if it does not know what they will turn out to be C Supra at and every once in a while Congress provides an explicit instruction for dealing with that contingency assigning primary responsibility to the courts or else to an agency but much more often Congress does not say thus arises the need for a presumption really a default rule for what should happen in that event does a statutory silence or ambiguity then go to a court for resolution or to an agency this court has long thought Congress would choose an agency with court serving only as a back stop to make sure the agency makes a reasonable Choice among the possible readings or said otherwise Congress would select the agency it has put in control of a regulatory scheme to exercise the degree of discretion that the statute's lack of clarity or completeness allows Smiley of course Congress can always refute that presumptive choice can say that really it would prefer courts to wield that discretionary power but until then the presumption Cuts in the agency's favor the next question is why for one because agencies often know things about a statute subject matter that courts could not hope to the point is especially Stark when the statute is of a scientific or technical nature kisore plurality opinion agencies are staffed with experts in the field who can bring their training and knowledge to bear on Open statutory questions Chevron consider for example the first bulleted case above when does an alpha amino acid polymer qualify as a protein C Supra at five I don't know many judges who would feel confident resolving that issue first question what even is an alpha amino acid polymer but the FDA likely has scores of scientists on staff who can think intelligently about it maybe collaborate with each other on its finer points and arrive at a sensible answer or take the perhaps more accessible sounding second case involving The Endangered Species Act C Supra at deciding when one squirrel population is distinct from another and thus warrants protection requires knowing about species more than it does Consulting a dictionary how much variation of what kind Geographic genetic morphological or behavioral should be required a court could if forced to muddle through that issue and announce a result but wouldn't the fish and wildlife service with all its specialized expertise do a better job of the task of saying what in the context of species protection the open-ended term distinct means one idea behind the Chevron presumption is that Congress the same Congress that charged the service with implementing the ACT would answer that question with a resounding yes a second idea is that Congress would value the agency's experience with how a complex regulatory regime functions and with what is needed to make it effective let's stick with squirrels for a moment except broaden the lens in construing a term like distinct in a case about squirrels the service likely would benefit from its historical familiarity with how the term has covered the population segments of other species Martin V occupational safety and health review common 1991 ceg Center for biological diversity V ziny 900 f3d 1053 ca9 2018 Arctic grailing Center for biological diversity V ziny 868 f310 t156 ca9 20177 Desert Eagle just as a common law Court makes better decisions as it sees multiple variations on a theme an agency's construction of a statutory term benefits from its unique exposure to all the related ways the term comes into play or consider for another way regulatory familiarity matters the example about adjusting Medicare reimbursement for Geographic wage differences C Supra at six according to a dictionary the term geographic area could be as large as a multi-state region or as small as a census tract how to choose it would make sense to gather hard information about what reimbursement levels each approach will produce to explore the ease of administering each on a nationwide basis to survey how Regulators have dealt with similar questions in the past and to confer with the hospitals themselves about what makes sense noting that agencies are able to conduct factual inves tigations and consult with affected parties Congress knows the Department of Health and Human Services can do all those things and that courts cannot still more chevron's presumption reflects that resolving statutory ambiguities as Congress well knows is often more a question of policy than of law paiva Beth energy Minds Inc 1991 the task is less one of construing a text than of balancing competing goals and values consider the statute directive to achieve substantial restoration of the grand Canyon's Natural Quiet C 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 tradeoff of a Kind familiar to agencies but peculiarly unsuited to judges or consider Chevron itself as the court there understood the choice between defining a stationary source as a whole plant or as a pollution emitting device is a choice about how to reconcile to manifestly competing interests 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 C 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 minus 572 plurality opinion so when faced with a statutory ambiguity an agency to which Congress has delegated policy-making responsibilities May rely on an accountable actor's views of wise policy to inform its judgments Chevron 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 anti at 27 but they are anything but consider the rule that an agency gets no difference when construing a statute it is not responsible for administering C Epic Systems Corp V Lewis 2018 well of course not if Congress has not put an agency in charge of implementing a statute Congress would not 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 C United States V me Corp 2001 in Ceno Motorcars LLC V Navaro 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 me 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 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 together 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 the sensitivity to the proper roles of the political and judicial branches paully 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 they 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 experience and to involve policy choices including cost benefit assessments and trade-offs between conflicting value 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 Ed 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 courts doe 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 Court tries to Divine what Congress meant even in the most complicated or abstruse statutory schemes the difference 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 is if I may say Malarkey answering those questions right does not mainly demand the interpretive skills courts possess instead it demands one or more of subject matter matter expertise 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 anti at 22 on that score I'll agree 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 answer lies in everything said above about congress's delegation of regulatory power to the agency and the agency special competencies C Supra at the majority appears to think it is a showstopping rejoinder to note that many statutory gaps and ambiguities are unintentional anti at 22 but to begin many are not the ratio between the two is uncertain C Supra at 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 Congress basically never says otherwise suggesting that Chevron chose the presumption aligning with legislative intent or in the majority's words approximating reality anti at too over the last four decades Congress has authorized or reauthorized hundreds of statutes the drafters of those statutes knew all about Chevron C A Gluck and El bresman statutory interpretation from the inside an empirical study of congressional drafting delegation and the Cannons part one 65 Stan L rev 901 928 fig2 9994 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 C12 USC track 25b fa a exception number one 15 USC 8302 c3a exception number two similarly Congress has declined to enact proposed legislation that would abolish Chevron across the board CS 99116 Kong first CS 2 2019 still a bill not a law hr5 115th Kong first cess 202 2017 same so to the extent the majority is worried that the Chevron presumption is fictional anti 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 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 majority says makes clear that agency interpretations of statutes are not entitled to deference anti at emphasis in original and that provision the majority continues codified the contemporaneous law which likewise did not allow for deference C anti-at but neither the APA nor the prea state of the law does the work that the majority claims both are perfectly compatible with Chevron Defence 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 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 USC 706 that text Contra the majority does not resolve the Chevron question sunstein Chevron as law7 go 1613 1642 2019 sunstein or said a bit differently section 706 is generally indeterminate on the matter of deference a vermo judging under uncertainty 20706 vermo the majority highlights the phrase decide all relevant questions of law italicizing the all and notes that the provision prescribed no differential standard for answering those questions anti at 14 but just as the provision does not prescribe a deferential standard of review so too it does not prescribe a denovo 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 kisore plurality opinion and when a court uses a differential standard here by deciding whether an agency reading is reasonable it just as much decides a relevant question of law as when it uses a denovo standard 706 the deferring Court then conforms to section 706 by determining whether the agency has stayed why 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 rev 457 459 2014 C Arlington vfcc 2013 Robert CJ dissenting we do not ignore section 706 command when we afford an agency statutory interpretation Chevron Defence we respect it section 706 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 policym under respectively a substantial evidence standard and an arbitrary and capricious standard C anti at 14 Congress the majority claims surely would have articulated a similarly differential standard applicable to questions of law had it intended to depart from denovo review ibid surely in another part of section 706 Congress explicitly referred to denovo review farction 7062 f with all those references to standards of review both deferential and not running around section 706 what is telling anti 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 shevron style deference vermule 207 and Contra the majority most respected commentators understood section 76 in that way as allowing even if not requiring Defence anti at 16 the finest administrative law Scholars of the time called them that generation's Manning sunstein and vermo certainly did Professor Louie jaff 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 One did Congress speak to the issue or did it leave openness and if the latter jaffy continued The agency's View if reasonable is free of control I bid that of course looks like step two defer if reasonable and just in case that description was too complicated jaff 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 at 569 similarly professor Kenneth kulp 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 888838 1851 Davis other contemporaneous Scholars and experts agreed crl the APA and the assault on Defence 106 men L rev 125 20211 listing men many of them they did not see in their own time what the majority finds there today 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 ceg unemployment compensation common of Alaska V Aragon 1946 nlrb V EC Atkins and& Co 1947 cardillo V Liberty mute inco 1947 and that continued right up until Chevron ceg Mitchell vbd 1956 Zenith radio Corp V United States 1978 to be clear deference in those years was not always given 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 fro M section 706 that the majority most relies on decide all relevant questions of law C anti at 14 in the decade after the apa's enactment 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 history matters as the majority recognizes section 706 was generally understood to restate the present law as to the scope of judicial review depte of Justice attorney general's manual on the administrative procedure act 108 1947 anti at the problem for the majority is that in the Years preceding the APA courts became ever more deferential to agencies New Deal administrative programs had by that point come into their own and this court and others in a fairly short time had abandoned their initial resistance and gotten on board Justice Brier wearing his administrative law scholar hat characterized the pre-ap period This Way judicial review of administrative action was curtailed and particular agency decisions were frequently sustained with judicial obeisance to the mysteries of administrative expertise s Brier at Al administrative law and Regulatory policy 21 7th Ed 2011 and that description extends to review of an agency's statutory constructions an influential study of administrative practice published 5 years before the apa's enactment described the state of play judicial review May in some instances at least be limited to the inquiry whether the administrative construction is a permissible one final report of Attorney General's committee on administrative procedure 1941 reprinted an administrative procedure in government agencies s DOC number 8 77th Kong first c78 1941 or again where the statute is reasonably susceptible of more than one interpretation the court May accept that of the administrative body at two prominent Supreme Court decisions of the 1940s put those principles into action gravy Powell 1941 was then widely understood as the leading case on review of agency interpretations Davis 882 C I bid noting that it established what is known as the doctrine of graay V Powell there the court deferred to an agency construction of the term producer as used in a statutory exemption from Price controls Congress the court explained had committed the scope of the exemption to the agency because its experience in the field gave promise of a better informed more Equitable adjustment of the conflicting interests gray accordingly the court concluded that it was not the province of a court to substitute its judgment for the agencies I bid 3 years later the court decided nlrb V Hurst Publications Inc 1944 another acknowledged leading case Davis 882 C at 884 the court again deferred this time to an agency's construction of the term employee in the National Labor Relations Act the scope of that term the court explained belong to the agency to answer based on its e everyday experience in the administration of the statute Hurst the court therefore limited its review to whether the agency's reading had warrant in the record and a reasonable basis in law IID die at 131 recall here that even the majority accepts that section 706 was meant to restate the present law as to judicial review C anti at Supra well then it sure would seem that the provision allows a deference regime the majority has no way around those two noteworthy decisions it first appears to distinguish between pure legal questions and the so-called mixed questions in gry and Hurst involving the application of a legal standard to a set of facts on at 11 if in drawing that distinction the majority intends to confine its whole ding to the pure type of legal issue thus enabling courts to defer when law and facts are entwined I'd be glad but I suspect the majority has no such intent because that approach would preserve Chevron in a substantial part of its current domain Wilkinson V Garland 2024 Alit OJ dissenting noting in the immigration context that the Universe of mixed questions swamps that of pure legal ones it is frequently in the consideration of mixed questions that the scope of statutory terms is established and their meaning defined CH monan Marberry and the administrative State 83 column Elm rev 129 1983 administrative application of law is Administrative formulation of law whenever it involves elaboration of the statutory Norm how does a statutory interpreter decide as in heurst what an employee is in large part through cases asking whether the term covers people performing specific jobs like in that case news boys or consider one of the examples I offered above how does an interpreter decide when one population segment of a species is distinct from another Often by considering that requirement with respect to particular species like Western gray squirrels so the distinction the majority offers makes no real world or even theoretical sense if the hearse Court was deferring to an agency on whether the term employee covered News Boys it was deferring to the agency on the scope and meaning of the term employee the majority's next rejoinder that the court was far from consistent in deferring Falls equally flat anti at 12 I am perfectly ready to acknowledge that in the preaa period a deference regime had not yet taken complete hold I'll go even further let's assume that deference was then an on again off function as the majority seems to suggest C anti at n13 N3 even on that assumption the majority main argument that section 706 prohibited deferential review collapses once again the majority agrees that section 706 was not meant to change the then prevailing law C anti at and even if inconsistent that law cannot possibly be thought to have prohibited deference or otherwise said if section 706 did not change the law of judicial review as we have long recognized then it did not prescribe a deferential standard then known and in use ker opinion the majority's whole argument for overturning Chevron relies on Section 706 but the text of section 706 does not support that result and neither does the contemporaneous practice which that text was supposed to reflect so today's decision has no basis in the only law the majority deems relevant it is grounded on air and still there is worse because abandoning Chevron subverts every known principle of stair decisis of course respecting precedent is not an inexorable command pay V Tennessee 1991 but overthrowing it requires far more than the majority has offered up here Chevron is entitled to stare deisis strongest form of protection the majority thus needs an exceptionally strong reason to overturn the decision above and beyond thinking it wrong and it has nothing approaching such a justification proposing only a bewildering theory about chevron's unworkability anti at 30 2 just 5 years ago this court in ker rejected a plea to overrule our V Robbins 1997 which requires judicial deference to agency's interpretations of their own regulations C 5589 opinion of the Court the case against overruling Chevron is at least as strong in particular the majority's decision today will cause a massive shock to the legal system casting doubt on many settled constructions of statutes and threatening the interests of many parties who have relied on them for years opinion of the Court adherence to precedent is a foundation stone of the rule of law Michigan V Bay Mills Indian Community 2014 stod decisis promotes the even hand dead predictable and consistent development of legal principles pain it enables people to order their lives in Reliance on judicial decisions and it contributes to the actual and perceived Integrity of the judicial process by uring that those decisions are founded in the law and not in the personal preferences of Judges at 828 Do's dissenting opinion perhaps Above All Else stere decisis is a doctrine of judicial modesty IID at 363 in that it sharees something important with Chevron both tell judges that they do not know everything and would do well to attend to the views of others so today the majority rejects what judicial humility councils not just once but twice over and Chevron is is entitled to a particularly strong form of stare decisis for two separate reasons first it matters that Congress remains free to alter what we have done Patterson V's McLean Credit Union 1989 C kisor opinion of the Court making the same point for our difference in a constitutional case the court alone can correct an error but that is not so here our deference decisions are balls tossed into congress's court for acceptance or not as that branch elects 5588 opinion of the court and for Generations now Congress has chosen acceptance throughout those years Congress could have abolished Chevron across the board most easily by amending the APA or it could have eliminated deferential review in discreet areas by amending old laws or drafting new laws to include an anti- Chevron provision instead Congress has spurned multiple opportunities to do a comprehensive rejection of Chevron and has hardly ever done a targeted one Kimble V Marvel entertainment LLC 2015 C Supra at or to put the point more affirmatively Congress has kept Chevron as is for 40 years it maintained that position even as members of this court began to call Chevron into question C anti at 30 from all it appears Congress has not agreed with the view of some justices that they and other judges should have more power second Chevron is by now much more than a single decision this court alone acting as Chevron allows has upheld an agency's reasonable interpretation of a statute at least 70 times see brief for United States in number P 27 app at 68a 72a collecting cases lower courts have applied the Chevron framework on thousands upon thousands of occasions CK Barnett and C Walker Chevron and stair deisis 31 geason l rev 75477 and n122 24 noting that at last count Chevron was cited in more than 18,000 Federal Court decisions the Kaiser Court observed when upholding hour that deference to reasonable agency interpretations of ambiguous rules pervades the whole Corpus of administrative law opinion of the court so too does deference to reasonable agency interpretations of ambiguous statutes except more so Chevron is as embedded as embedded gets in the law the majority says differently because this court has ignored R lately all that is left of the decision is a decaying husk with bold pretensions ante at 33 tell that to the DC circuit the court that reviews a large share of agency interpretations where Chevron remains alive and well ceg LK V commissioner 68 f41 1312 2023 solar energy Industries assen V FK 59 f41 1287 2023 but more to the point the majority's argument is a bootstrap this court has avoided deferring under Chevron since 2016 anti at 32 because it has been preparing to overrule Chevron since around that time that kind of self-help on the way to reversing precedent has become almost routine at this court stop applying a decision where one should throw some gratuitous criticisms into a couple of opinions issue a few separate writings questioning the decisions premises anti at 30 give the whole process a few years and voila you have a justification for overruling C the decision Janice V state county and Municipal Employees 2018 Kagan J dissenting discussing the overruling of Abu V Detroit Bey of Ed 1977 SE also EG Kennedy V Bremerton School dist Soder J dissenting similar for lemon V curtzman 1971 Shelby County V holder 2013 Ginsburg J descenting similar for South Carolina V katsen boach 19 66 I once remarked that this overruling through enfeeblement technique mocked stared decisis Janice dissenting opinion I have seen no reason to change my mind the majority does no better in its main justification for overruling Chevron that the decision is unworkable anti at 30 the majority's first theory on that score is that there is no single answer about what ambiguity means some judges turn out to see more of it than others s do leading to different results ante at but even if so the legal system has for many years in many contexts dealt perfectly well with that variation take contract law it is hornbook stuff that when but only when a contract is ambiguous a court interpreting it can consult extrinsic evidence C cnh industrial nvv Reese 2018 perum and when all interpretive tools still leave ambiguity the contract is construed against the drafter C Lamps Plus Inc V verella 2019 so I guess the contract rules of the 50 states are unworkable now or look closer to home to doctrines this court regularly applies in deciding whether a government has waved sovereign immunity we construe any ambiguities in the statutory language in favor of immunity faav Cooper 2012 similarly the rule of lenity tells us to construe ambiguous statutes in favor of criminal defendants C United States V Castleman 2014 and the Canon of constitutional avoidance instructs us to construe ambiguous laws to avoid difficult constitutional questions see United States Oakland cannabis buyers Cooperative 2001 I could go on but the point is made there are ambiguity triggers all over the law somehow everyone seems to get by and Chevron is an especially puzzling decision to criticize on the ground of generating too much judicial Divergence there's good empirical meaning non-im personis evidence on exactly that subject and it shows that as compared with denovo review use of the Chevron two-step framework Fosters agreement among judges c k Barnett C Boyd and C Walker administrative laws political Dynamics 71 van L rev 1463 1502 2018 Barnett more particularly Chevron has a powerful constraining effect on partisanship in judicial decision-making Barnett 146 3 italics deleted C sunstein 1672 a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines so if consistency among judges is the majority's load star then the court should not overrule Chevron but return to using it the majority's second theory on workability is likewise a make weight Chevron the majority complains has some exceptions which so the majority says are difficult and complicate D to apply anti at 32 recall that courts are not supposed to defer when the agency construing a statute one has not been charged with administering that law two has not used deliberative procedures I.E notice and comment rulemaking or adjudication or three is intervening in a major question of great economic and political significance C Supra anti as I've explained those exceptions the majority also aptly calls them refinements fit with chevron's rationale they Define circumstances in which Congress is unlikely to have wanted agency views to govern anti at 27 C Supra at and on the difficulty scale they are nothing much has Congress put the agency in charge of administering the statute in 99 of 100 cases every o NE will agree on the answer with scarcely a moment's thought did the agency use notice in comment or an adjudication before rendering an interpretation once again I could stretch my mind and think up a few edge cases but for the most part the answer is an easy yes or no the major questions exception is I acknowledge different there many judges have indeed disputed its nature and scope compare EG West Virginia 724 with I Kagan J dissenting but that disagreement concerns on everyone's view a tiny subset of all agency interpretations for the most part the exceptions that so upset the majority require merely a rote check the boox inquiry if that is the majority's idea of a dizzying break dance anti at 32 the majority needs to get out more and anyway difficult as compared to what the majority's prescribed way of proceeding is no walk in the park first the majority makes clear that what is usually called Skidmore Defence continues to apply C an8 under that decision agency interpretations constitute a body of EXP experience an informed judgment that may be entitled to respect Skidmore V Swift and Co 1944 if the majority thinks that the same judges who argue today about where ambiguity resides C anti at 30 are not going to argue tomorrow about what respect requires I fear it will be Gravely disappointed second the majority directs courts to comply with the varied ways in which Congress in fact delegates discretionary authority to agencies anti at for example Congress May authorize an agency to define or delimit statutory terms or concepts or to fill up the details of a statutory scheme anti it 17 and N5 or congress may use in describing an agency's regulatory Authority inherently flexible language like appropriate or reasonable ante at 17 and n6 attending to every such delegation as the majority says is necessary in a world without Chevron but that task involves complexities of own indeed one reason Justice Scalia supported Chevron was that it replaced such a statute by- statute evaluation which was assuredly a font of uncertainty and litigation with an across theboard presumption a scelia Judicial deference to administrative interpretations of law 1989 Duke LJ 51516 as a lover of the predictability that rules create Justice Scalia thought the latter unquestionably better I at 517 on the other side of of the balance the most important stair decisis Factor call it the jolt to the legal system issue weighs heavily against overruling Chevron dos Robert CJ concurring in judgment Congress and agencies alike have relied on Chevron have assumed its existence in much of their work for the last 40 years statutes passed during that time reflect the expectation that Chevron would allocate interpretive Authority between agencies and courts rules issued During the period like wise presuppose that statutory ambiguities were the agencies to reasonably resolve those agency interpretations may have benefited regulated entities or they may have protected members of the broader public either way private parties have ordered their Affairs their business and financial decisions their health care decisions their educational decisions around agency actions that are suddenly now subject to challenge in ker this court refused to overrule our because doing so would cast doubt on many long-standing constructions of rules and thereby upset settled expectations opinion of the Court overruling Chevron and thus raising new doubts about agency constructions of statutes will be far more disruptive the majority tries to alleviate concerns about a piece of that problem it states that judicial decisions that have upheld agency action as reasonable under Chevron should not be overruled on that account alone see anti at that is all to the good there are thousands of such decisions many settled for decades see Supra at 26 but first reasonable Reliance need not be predicated on a prior judicial decision some agency interpretations never challenged under Chevron now will be expectations formed around those constructions thus could be upset in a way the majority's Assurance does not touch and anyway how good is that Assurance really the majority says that a decision's mere Reliance on Chevron is not enough to counter the force of stair deis a challenger will need an additional special justification anti at 34 the majority is sanguin I am not so much courts motivated to overrule an old Chevron based decision can always come up with something to label a special justification maybe a court will say the quality of the precedent reasoning was poor anti at 29 or maybe the court will discover something unworkable in the decision like some exception that has to be applied anti at 30 all a court need do is look to today's opinion to see how it is done four judges are not experts in the field and are not part of either political branch of the government Chevron USA Inc V natural resources defense Council Inc 1984 those were the days when we knew what we are not when we knew that as between courts and agencies Congress would usually think agencies the better choice to to resolve the ambiguities and fill the gaps in regulatory statutes because agencies are experts in the field and because they are part of a political Branch with a claim to making interstitial policy and because Congress has charged them not us with administering the statutes containing the open questions at its core Chevron is about respecting that allocation of responsibility the conferral of primary authority over regulatory matters to agencies not courts today the majority does not respect that judgment it gives courts the power to make all manner of scientific and Technical judgments it gives courts the power to make all manner of policy calls including about how to weigh competing goods and values see Chevron itself it puts Courts at the apex of the administrative process as to every conceivable subject because there are always gaps and ambiguities in regulatory statutes and often of great import what actions can be taken to address climate change or other environmental challenges what will the nation's Health Care System look like in the coming decades or the financial or Transportation Systems what rules are going to constrain the development of AI in every sphere of current or future Federal Regulation expect courts from now on to play a commanding role it is not a role Congress has given to them in the APA or any other statute it is a role this court has now claimed for itself as as well as for other judges and that claim requires disrespecting too this Court's precedent there are no special reasons of the kind usually invoked for overturning precedent to eliminate Chevron Defence and given chevron's pervasiveness the decision to do so is likely to produce large-scale disruption all that backs today's decision is the majority's belief that Chevron was wrong that it gave agencies too much power and courts not enough but shifting views about the worth of regulatory actors and their work do not justify overhauling a Cornerstone of administrative law in that sense too today's majority has lost sight of its proper role and it is impossible to pretend that today's decision is a one-off in either its treatment of agencies or its treatment of precedent as to the first this very term presents yet another example of the Court's resolve to roll back agency Authority despite Congressional direction to the contrary C secv JY 603 us score 2024 4 see also Supra at 3 as to the second just my own defenses of stair deisis my own descent to this Court's reversals of settled law by now fill a small volume CS Mina 364 joint opinion of Brier Sodor and Kagan JJ Edwards V vanoi 2021 Nick V Township of Scott 2019 Janice Mina 932 once again with respect I desent