In addition to Justice Gorsuch's concurrence (to be discussed in a later post), the three "liberal" Justices on the Court differed from their colleagues and thought overturning the Chevron precedent to be both erroneous and unnecessary. Their dissent, written by Justice Kagan and joined by Justices Sotomayor and Jackson, took a dim view of the majority's legal reasoning and the consequences of their decision.

Instead of looking into the Court's distant past for support, the dissent begins by reminding the majority (and us) that "[f]or 40 years, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. . . . has served as a cornerstone of administrative law." Unlike the majority, who apparently believe that the Chevron precedent renders judges unable to judge, the dissent apprehends that under this precedent "a court uses all its normal interpretive tools to determine whether Congress has spoken to an is­sue" (and if so "the agency's views make no difference"). It is in the instances where Congress has not spoken clearly, and "if the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap" that the issue is joined whether the agency or the courts, in the first instance decides how the law will be interpreted and applied. The dissenting Justices believe that the agencies, not the courts, are (usually, but not exclusively) best equipped to make these choices and that this allocation of decision-making is the right choice ("the rule is right") and (inherently at least) consistent with Congressional intent. This is because such decisions can involve "scientific or technical subject matter," or require an understanding of "complex and interdependent regulatory programs," neither of which are usually within a court's skill (or knowledge) set. The current regime also accommodates the "chain of command" between the agencies and the President, "who in turn answers to the public for his policy calls" (and is accountable thereto; this, after all was the line of reasoning used by the Chief Justice in upholding the constitutional validity of the Affordable Care Act in National Federation of Independent Business v. Sebelius).

The dissent accuses the majority of "flipping the script" on this "almost obvious choice," with "[a] rule of judicial humility giv[ing] way to a rule of judicial hubris." This is the most recent of a pattern of the Court "too often tak[ing] for itself decision-making authority Congress assigned to agencies," the dissent citing National Federation of Independent Business v. OSHA, 595 U.S. 109 (2022), est Virginia v. EPA, 597 U.S. 697 (2022), and Biden v. Nebraska, 600 U.S. 477 (2023), in support of this allegation. As a consequence, the majority has turned the Court "into the country's administrative czar" "[i]n one fell swoop." And in doing so, the majority has made a "laughing-stock" of stare decisis, which the dissenting Justices assert "remind judges that wisdom often lies in what prior judges have done" and provide "a brake on the urge to convert 'every new judge's opinion' into a new legal rule or regime," Justice Kagan reciting the dissent in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215, 388 (2022), quoting 1 W. Blackstone, Com­mentaries on the Laws of England 69 (7th ed. 1775) (trumping the majority's basis on our history with legal opinion contemporaneous with the Founders). And paralleling the majority's suggestion that Congress could overrule their decision by statute (a false assertion based on the legal grounds for that decision), here the dissent asserts as one basis for considering erroneous the majority's dismissal of stare decisis in this case is that Congress, for the past forty years, has not done so by overruling Chevron (making the application of stare decisis "supercharged" in this instance). The dissent characterizes the majority's opinion as "a bald assertion of judicial authority" that "disdains restraint, and grasps for power."

The dissent also provides its own explication of the origins of the Chevron doctrine and consequences it has had on administrative law for the past four decades. That origin is the unavoidable ambiguities that arise when Congress enacts laws and sometimes where those ambiguities are intentional; see, e.g., the Biologics Price Control and Innovation Act (the subject of a later post), where Congress could not have unintentionally delegated to the Food and Drug Administration responsibility for developing a biosimilar approval pathway (the statute is replete with instructions that "the Secretary" shall act to implement the specific provisions recited therein). In addition, the dissent sets forth the myriad ways Congress through intent or mistake could so delegate, or for which the issue addressed by the agency could not have been anticipated by the drafters (indeed, at its core the issue is the extent to which Congress passes to the Executive branch the responsibility to execute and enforce the laws; for example, once Congress has declared war legislators do not then micromanage how the President or Secretary of Defense, much less military commanders prosecute the war on the battlefield). The dissent discusses instances from the case law developed over the past four decades to illustrate the point, including Teva Pharmaceuticals USA, Inc. v. FDA, 514 F. Supp. 3d 66, 79–80, 93–106 (DC 2020) (regarding the definition of a protein under 42 U.S.C. § 262(i)(1); Northwest Ecosystem Alliance v. United States Fish and Wildlife Serv., 475 F. 3d 1136, 1140–1145, 1149 (CA9 2007) (defining "distinct populations" of certain species of squirrels); Bellevue Hospital Center v. Leavitt, 443 F. 3d 163, 174–176 (CA2 2006) (defining "geographic areas" related to hospital reimbursement); Grand Canyon Air Tour Coalition v. FAA, 154 F. 3d 455, 466–467, 474–475 (CADC 1998) (defining noise levels permissible by aircraft over the Grand Canyon); and Chevron itself, regarding "stationary sources" of air pollution). The dissent recognizes that in each case the statutory language had more than one reading that would be "reasonable" and that the question that thus arises is "Who decides which of the possible readings should govern?"

The answer over the past forty years has been that the agencies should decide, and courts defer in instances where there isn't a "single right answer" (otherwise neither the courts nor the agencies decide, because Congress has spoken; see Ki­sor v. Wilkie, 588 U. S. 558, 588 (2019)). And under Chevron when a court, "after using its whole legal toolkit" finds that there is no unambiguous definition by Congress, the Court has (and should) defer to the agency tasked with implementing the law and (presumably) having the technical and experiential knowledge and expertise to be in the best position to do so, the dissent stating that "the court must cede the primary interpretive role"). The role of the courts, as the dissenting Justices see it, should be (and has been) "only as a backstop to make sure the agency makes a reasonable choice among the possible readings." (In a footnote, the dissent explicates several routine instances and circumstances where what Congress intended is presumed, including ones against extraterritoriality of U.S. laws, prospective (rather than retrospective) application of the laws, and against repeal by implication.) The rationale for agencies rather than courts to resolve ambiguities (the "why" the dissent provides) set forth in the dissenting opinion include the idea that "agencies often know things about a statute's subject matter that courts could not hope to" know (particularly when the statute implicates scientific or technical questions, illustrated by Justice Kagan by the portion of the biosimilar statute regarding when an amino acid polymer is considered a protein, the Justice posing that the first question facing a court trying to resolve the ambiguity would be "What even is an alphaamino acid polymer?"). Another example is the decision regarding distinct vel non species of squirrels; in this case, the dissent speculates that "[a] court could, if forced to, muddle through that issue and announce a result" but reasons that the specialized expertise of the Fish and Wildlife Service would "do a better job of the task."

The dissent next addresses a different scenario, wherein the ambiguity arises from "a complex regulatory regime" and how it functions effectively. Taking the squirrel example again, the dissent cites instances where prior decisions can be understood by the agency (but perhaps slightly less effectively, seeing as the cited earlier case law might be effectively understood by a court). The dissent's better point is that an agency makes these distinctions all the time as part of its operations as an agency, while courts address these issues much more sporadically. A similar scenario, and an agency's superior ability to reasonably interpret the law, cited in the dissent involves the Medicare reimbursement issue involving the term "geographic area" mentioned above, the dissent positing:

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[,]

and suggesting that the Department of Health and Human Services is better equipped to make these assessments. (In this regard, the majority's suggestion that evidence from the parties and amici can substitute seems particular jerry-rigged in comparison.)

Turning to the policy rationale, the dissent minimizes the legal basis for the decisions the majority's decision shifts from the agency to the courts. Using the regulation of noise levels over the Grand Canyon as an example, the dissent recognizes that the question of "How many flights, in what places and at what times, are consistent with restoring enough natural quiet on the ground?" is "a policy trade-off of a kind familiar to agencies—but peculiarly unsuited to judges." In addition, to expertise and familiarity the dissent asserts that because Federal agencies are "subject to the supervision of the President, who in turn answers to the public," citing Kisor, Congress may rely on the "accountable actor" to better use "wise policy to inform its judgements" rather than an independent judiciary (turning on its head the majority's argument of the historical antecedents and necessity of judicial primacy).

The dissent recognizes that deference is not always the answer, stating that the Chevron regime had been "fine-tuned" over time in recognition of this reality. The majority's disparagement of these refinements as evincing flaws in the system "are anything but" according to the dissent, citing Epic Systems Corp. v. Lewis, 584 U.S. 497, 519–520 (2018) (which preclude an agency from interpreting a statute it does not implement); United States v. Mead Corp., 533 U.S. 218, 226–227 (2001); and Encino Motor­cars, LLC v. Navarro, 579 U. S. 211, 220 (2016) (for instance where the agency fails to use, or use properly, its "rulemaking or adjudicatory authority"). The dissent notes that the Court has even fashioned an "extraordinary cases" exception to Chevron's general rule of deference, in instances where questions of vast "economic and political significance" are involved, citing King v. Burwell, 576 U.S. 473, 485-486 (2015).

The result of Chevron and its forty years of application has been a "carefully calibrated framework [that] 'reflects a sensitiv­ity to the proper roles of the political and judicial branches'" according to the dissenting Justices' assessment, citing Pauley v. Beth En­ergy Mines, Inc., 501 U.S. 680, 696 (1991). That framework is expressly set forth in the dissent:

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 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 dissent then addresses and rejects the majority's "points in reply." First is the assertion that courts, not agencies, have any "specialized competence" in resolving the ambiguities that raise the questions before the Court. The dissent responds, "Score one for self-confidence; maybe not so high for self-reflection or -knowledge" (and later calling the majority's position "malarkey") and while acknowledging a court's capacity to "construe legal texts, hopefully well" credits the first step of the Chevron test to "take full advantage of that talent." The reason for deference under Chevron, the dissent asserts, is when a "court must admit that standard legal tools will not avail to fill a statutory silence or give content to an ambiguous term." The question is not one of legal acumen but rather "one or more of: subject-matter expertise, long engagement with a regulatory scheme, and policy choice," in which courts "'have no special competence'—or even legitimacy."

The majority's second argument is that the existence of an ambiguity or gap in statutory language does not "necessarily reflect a congressional intent that an agency" have "primary interpretive authority." The dissent concedes the premise, but the basis for the Chevron regime is a presumption that is applied in a case-by-case basis because while it "does not maintain that Congress in every case wants the agency, rather than a court, to fill in gaps" there needs to be a "default rule" regarding which would be the best source of the best resolution of the ambiguity or gap. The majority's contention that ambiguities and gaps are unintentional is an insufficient justification for the dissent, first because many are not unintentional (in the sense of being unforeseen) and second (the dissent asks) why should that matter, if it is merely an inherent consequence of the legislative process and execution of the statutes by the appropriate agency? (And the dissent's rejoinder, as in the majority on the converse position is that if Congress doesn't want the agency to take this role "all it needs to do is say [so]"). Which Congress has never done (being "the proof . . . in the [legislative] pudding") and has in fact rejected proposed legislation that would have abolished the Chevron regime "across the board," citing S. 909, 116th Cong., 1st Sess., §2 (2019) (still a bill, not a law); H. R. 5, 115th Cong., 1st Sess., §202 (2017) (same).

Turning to the majority's reliance on the Administrative Procedures Act (APA) and its putative incompatibility with Chevron purported in the majority opinion, the dissent asserts that Chevron and the APA are "perfectly compatible." In the dissent's view, Section 706 (cited extensively in the majority opinion) merely provides for judicial review of agency actions. Citing academic legal authorities, the dissent says that the text itself "does not resolve the Chevron question" as the majority interprets it to do. As the dissent sees it, the deficiency is that Section 706 does not set forth any standard for judicial review, either deferential under Chevron or de novo as the majority opinion would have it. The dissent notes that Section 706 does specify standards of review, for example deference to agency factfinding (substantial evidence) and policymaking (abuse of discretion). The dissent differs with the majority's conclusion that Congress would have included similarly deferential review standards for legal questions if that was its intent; there are other portions of the Section where a de novo standard of review is set forth (resulting in references to standards of review "running around Section 706"). The dissent also notes that most "respected commentators" (including contemporaneous writers such as Professor Kenneth Culp Davis) agree with the preference in the Section for deferential review ("They did not see in their own time what the majority finds there today"), citing examples (perhaps not the commentators that the majority Justices read or respect) and conceding in a footnote that at least one such "respected commentator" took the contrary view agreeing with the majority. But this is a new interpretation of the APA by the Supreme Court, which until this decision did not appreciate the invalidating contradictions between Chevron and the APA asserted by the majority (although this is a feature of most instances where the Court reverses longstanding precedent, perhaps accounting for the rarity thereof). And history is not on the majority's side, either according to the dissent, insofar as courts had become more deferential to administrative agencies during the New Deal (and to be fair, World War II), citing Justice Breyer's contribution to an administrative law treatise for this information and Supreme Court decisions, Gray v. Powell, 314 U. S. 402 (1941) and NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944), as examples of deferential judicial review of agencies' statutory interpretation. The dissent asserts additional cases (to counter the majority's allegation that these Justices "plucked" these two cases as exceptions) and dismisses the majority's reliance on purportedly inconsistent instances of deference pre-APA as making the majority's further argument that Section 706 prohibits deference "fall[] flat."

Finally, the dissent addresses the abandonment of stare decisis by the majority on the basis that while not intended to be an "inexorable command" to do so requires "far more" than the majority provides in its opinion. The extent of this "far more" for the dissent is "above and beyond thinking it wrong." This is particularly the case where, as here, the decision "will cause a massive shock to the legal system, 'cast[ing] doubt on many settled constructions' of statutes and threatening the interests of many parties who have relied on them for years," citing Kisor. Stare decisis is a doctrine of "judicial modesty" that, like Chevron itself, "tell judges that they do not know everything, and would do well to attend to the views of others." As a practical matter, the dissent asserts that the Court itself has upheld Chevron "at least 70 times" and the inferior courts have made decisions based on Chevron on "thousands and thousands of occasions" (more than 18,000 at last count). And the dissent criticizes the majority for "overruling-through-enfeeblement" of decisions a majority disagrees with by refusing to apply a precedent and disparaging it in those opinions as the basis to overrule (finding equally feeble the majority's argument/evidence that the Chevron regime is "unworkable" due to there being "no single 'answer' about what 'ambiguity' means," which seems to be a reasonable definition of ambiguity). Paradoxically, the dissent contends, Chevron promotes agreement between how judges interpret ambiguous statutes (as compared with de novo review) and thus does not deserve the majority's contention that it causes "too much judicial divergence." Perhaps equally paradoxically in the dissent's view the regime the majority impose to replace Chevron is itself problematic to implement, and these Justices see the deference to an agency's "body of experience and informed judgment" under Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), to be at future risk for judicial meddling (it would not take much to infer a similar judgment about the majority's opinion here).

"At its core," the dissent concludes, "Chevron is about respecting that allocation of responsibility—the conferral of primary authority over regulatory matters to agencies, not courts" coming from a time when "when we [the Court] knew what we are not." The majority, according to the dissent, does not respect that judgment, giving courts "power to make all manner of scientific and technical judgments," "the power to make all manner of policy calls, including about how to weigh com­peting goods and values," and "puts courts at the apex of the administrative process as to every con­ceivable subject—because there are always gaps and ambi­guities in regulatory statutes." "In every sphere of current or future federal regulation," the dissent assert, "expect courts from now on to play a commanding role" which "is not a role Congress has given to them" but "a role this Court has now claimed for itself, as well as for other judges."

Albeit easy to cast along conventional philosophical lines, both the majority and dissenting opinions were outcome-oriented, although the dissent was frankly so while the majority opinion dressed up this aspect with a patina of history and how the Founders would consider the question (in an age where the modern concept of an administrative agency was unknown). Indeed, the majority was almost disdainful toward the consequences of wiping out forty years of precedent to reach their outcome, showing somewhat flexible allegiance towards stare decisis and other legal principles. This attitude is fraught with at least some danger, insofar as the Court's institutional authority is intimately related to and dependent upon its institutional integrity. To the extent that the majority reject Chevron as being completely wrongly decided (even going so far as to dismiss the Court's judgment by six Justices in a decision supported by just as many (or few) here) both are brought into question.

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