Gorsuch, J., concurring in judgment
expected, we find an instruction about the decisional process—one requiring the court to apply “de novo review on questions of law” as it considers the parties’ arguments in the course of reaching its judgment. Kisor v. Wilkie, 588 U. S. ___, ___ (2019) (Gorsuch, J., concurring in judgment) (slip op., at 15) (internal quotation marks omitted). Nothing here speaks to remedies.
The remaining statutory language is more of the same. Section 706 goes on to instruct that “[t]he reviewing court shall … hold unlawful and set aside agency action, findings, and conclusions found to be,” among other things, “arbitrary,” “capricious,” “contrary to constitutional right,” “in excess of” statutory authority, or “unsupported by substantial evidence.” §706(2). Looking at the provision as a whole, rather than focusing on two words in isolation, we see further evidence that it governs a court’s scope of review or decisional process. The statute tells judges to resolve the cases that come to them without regard to deficient agency action, findings, or conclusions—an instruction entirely consistent with the usual “negative power” of courts “to disregard” that which is unlawful. Mellon, 262 U. S., at 488.
Other details are telling too. Consider the latter part of §706(2)’s directive to “set aside agency action, findings, and conclusions.” The APA defines “agency action” to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U. S. C. §551(13). A court can disregard any of those things. But what would it even mean to say a court must render null and void an agency’s failure to act? Notice, too, the language about “findings.” Often, judges disregard factual findings unsupported by record evidence and resolve the case at hand without respect to them. See Fed. Rule Civ. Proc. 52(a)(6) (“Findings of fact … must not be set aside unless clearly erroneous.”). None of that means we may pretend to rewrite history and scrub any trace of faulty findings from the record.
