SUPREME COURT OF THE UNITED STATES
Case Nos. 11–1545 and 11–1547 | Original Ruling here.
Case 11–1545: CITY OF ARLINGTON, TEXAS, ET AL., PETITIONERS
FEDERAL COMMUNICATIONS COMMISSION ET AL.
Case 11–1547: CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, PETITIONER
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[May 20, 2013]
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether an agency’s interpretation of a statutory ambiguity that concerns the scope of its regulatory authority (that is, its jurisdiction) is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).
Wireless telecommunications networks require towers and antennas; proposed sites for those towers and antennas must be approved by local zoning authorities. In the Telecommunications Act of 1996, Congress “impose[d] specific limitations on the traditional authority of state and local governments to regulate the location, construction, and modification of such facilities,”
~Rancho Palos Verdes v. Abrams, 544 U. S. 113, 115 (2005),
and incorporated those limitations into the Communications Act of 1934, see 110 Stat. 56, 151. Section 201(b) of that Act empowers the Federal Communications Commission to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.” Ch. 296, 52 Stat. 588, codified at 47 U. S. C. §201(b). Of course, that rulemaking authority extends to the subsequently added portions of the Act. See AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 377–378 (1999).
The Act imposes five substantive limitations, which are codified in 47 U. S. C. §332(c)(7)(B); only one of them, §332(c)(7)(B)(ii), is at issue here.
That provision requires state or local governments to act on wireless siting applications “within a reasonable period of time after the request is duly filed.”
Two other features of §332(c)(7) are relevant.
- First, subparagraph (A), known as the “saving clause,” provides that nothing in the Act, except those limitations provided in §332(c)(7)(B), “shall limit or affect the authority of a State or local government” over siting decisions.
- Second, §332(c)(7)(B)(v) authorizes a person who believes a state or local government’s wireless-siting decision to be inconsistent with any of the limitations in §332(c)(7)(B) to “commence an action in any court of competent jurisdiction.”
In theory, §332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities. But in practice, wireless providers often faced long delays.
- In July 2008, CTIA — The Wireless Association,1 which represents wireless service providers, petitioned the FCC to clarify the meaning of §332(c)(7)(B)(ii)’s requirement that zoning authorities act on siting requests “within a reasonable period of time.”
- In November 2009, the Commission, relying on its broad statutory authority to implement the provisions of the Communications Act, issued a declaratory ruling responding to CTIA’s petition. In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994, 14001. The Commission found that the “record evidence demonstrates that unreasonable delays in the personal wireless service facility siting process have obstructed the provision of wireless services” and that such delays “impede the promotion of advanced services and competition that Congress deemed critical in the Telecommunications Act of 1996.” Id., at 14006, 14008. A “reasonable period of time” under §332(c)(7)(B)(ii), the Commission determined, is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications. Id., at 14005.
Some state and local governments opposed adoption of the Declaratory Ruling on the ground that the Commission lacked “authority to interpret ambiguous provisions of Section 332(c)(7).” Id., at 14000. Specifically, they argued that the saving clause, §332(c)(7)(A), and the judicial review provision, §337(c)(7)(B)(v), together display a congressional intent to withhold from the Commission authority to interpret the limitations in §332(c)(7)(B). Asserting that ground of objection, the cities of Arlington and San Antonio, Texas, petitioned for review of the Declaratory Ruling in the Court of Appeals for the Fifth Circuit.
Relying on Circuit precedent, the Court of Appeals held that the Chevron framework applied to the threshold question whether the FCC possessed statutory authority to adopt the 90- and 150-day timeframes. 668 F. 3d 229, 248 (CA5 2012) (citing Texas v. United States, 497 F. 3d 491, 501 (CA5 2007)). Applying Chevron, the Court of Appeals found “§332(c)(7)(A)’s effect on the FCC’s authority to administer §332(c)(7)(B)’s limitations ambiguous,” 668 F. 3d, at 250, and held that “the FCC’s interpretation of its statutory authority” was a permissible construction of the statute. Id., at 254. On the merits, the court upheld the presumptive 90- and 150-day deadlines as a “permissible construction of §332(c)(7)(B)(ii) and (v) . . . entitled to Chevron deference.” Id., at 256.
We granted certiorari, 568 U. S. ___ (2012), limited to the first question presented: “Whether . . . a court should apply Chevron to . . . an agency’s determination of its own jurisdiction.” Pet. for Cert. in No. 11–1545, p. i.
As this case turns on the scope of the doctrine enshrined in Chevron, we begin with a description of that case’s now canonical formulation. “When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.” 467 U. S., at 842.
- First, applying the ordinary tools of statutory construction, the court must determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id., at 842–843.
- But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id., at 843.
Chevron is rooted in a background presumption of congressional intent: namely, “that Congress, when it left ambiguity in a statute” administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740–741 (1996). Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. See Iowa Utilities Bd., 525 U. S., at 397. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.
The question here is whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, its jurisdiction). The argument against deference rests on the premise that there exist two distinct classes of agency interpretations: Some interpretations— the big, important ones, presumably—define the agency’s “jurisdiction.” Others—humdrum, run-of-the-mill stuff— are simply applications of jurisdiction the agency plainly has. That premise is false, because the distinction between “jurisdictional” and “nonjurisdictional” interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.
The misconception that there are, for Chevron purposes, separate “jurisdictional” questions on which no deference is due derives, perhaps, from a reflexive extension to agencies of the very real division between the jurisdictional and nonjurisdictional that is applicable to courts. In the judicial context, there is a meaningful line: Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all. Congress has the power (within limits) to tell the courts what classes of cases they may decide, see Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50, 63–64 (1944); Lauf v. E. G. Shinner & Co., 303 U. S. 323, 330 (1938), but not to prescribe or superintend how they decide those cases, see Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 218–219 (1995). A court’s power to decide a case is independent of whether its decision is correct, which is why even an erroneous judgment is entitled to res judicata effect. Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires.
That is not so for agencies charged with administering congressional statutes. Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they [agencies] act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question—whether framed as an incorrect application of agency authority or an assertion of authority not conferred—is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as “jurisdictional.”
An example will illustrate just how illusory the proposed line between “jurisdictional” and “nonjurisdictional” agency interpretations is. Imagine the following validly enacted statute:
[Option A:] COMMON CARRIER ACT
SECTION 1. The Agency shall have jurisdiction to prohibit any common carrier from imposing an unreasonable condition upon access to its facilities.
There is no question that this provision—including the terms “common carrier” and “unreasonable condition”— defines the Agency’s jurisdiction. Surely, the argument goes, a court must determine de novo the scope of that jurisdiction.
Consider, however, this alternative formulation of the statute:
[Option B:] COMMON CARRIER ACT
SECTION 1. No common carrier shall impose an unreasonable condition upon access to its facilities.
SECTION 2. The Agency may prescribe rules and regulations necessary in the public interest to effectuate Section 1 of this Act.
Now imagine that the Agency, invoking its Section 2 authority, promulgates this Rule: “(1) The term ‘common carrier’ in Section 1 includes Internet Service Providers. (2) The term ‘unreasonable condition’ in Section 1 includes unreasonably high prices. (3) A monthly fee greater than $25 is an unreasonable condition on access to Internet service.”
By this Rule, the Agency has claimed for itself jurisdiction that is doubly questionable: Does its authority extend to Internet Service Providers? And does it extend to setting prices? Yet Section 2 makes clear that Congress, in petitioners’ words, “conferred interpretive power on the agency” with respect to Section 1. Brief for Petitioners in No. 1545, p. 14. Even under petitioners’ theory, then, a court should defer to the Agency’s interpretation of the terms “common carrier” and “unreasonable condition”—that is to say, its assertion that its “jurisdiction” extends to regulating Internet Service Providers and setting prices.
In the first case, by contrast, petitioners’ theory would accord the agency no deference. The trouble with this is that in both cases, the underlying question is exactly the same: Does the statute give the agency authority to regulate Internet Service Providers and cap prices, or not?2 The reality, laid bare, is that there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its “jurisdiction”) and its exceeding authorized application of authority that it unquestionably has.
“To exceed authorized application is to exceed authority. Virtually any administrative action can be characterized as either the one or the other, depending on how generally one wishes to describe the ‘authority.’” Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381 (1988) (SCALIA, J., concurring in judgment); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 29 (1983) (“Administrative application of law is administrative formulation of law whenever it involves elaboration of the statutory norm.”).
This point is nicely illustrated by our decision in National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U. S. 327 (2002). That case considered whether the FCC’s “jurisdiction” to regulate the rents utility-pole owners charge for “pole attachments” (defined as attachments by a cable television system or provider of telecommunications service) extended to attachments that provided both cable television and high-speed Internet access (attachments for so-called “commingled services”). Id., at 331–336. We held, sensibly, that Chevron applied. 534 U. S., at 333, 339.
Whether framed as going to the scope of the FCC’s delegated authority or the FCC’s application of its delegated authority, the underlying question was the same: Did the FCC exceed the bounds of its statutory authority to regulate rents for “pole attachments” when it sought to regulate rents for pole attachments providing commingled services?
The label is an empty distraction because every new application of a broad statutory term can be reframed as a questionable extension of the agency’s jurisdiction. One of the briefs in support of petitioners explains, helpfully, that “[j]urisdictional questions concern the who, what, where, and when of regulatory power: which subject matters may an agency regulate and under what conditions.” Brief for IMLA Respondents 18–19. But an agency’s application of its authority pursuant to statutory text answers the same questions. Who is an “outside salesman”? What is a “pole attachment”? Where do the “waters of the United States” end? When must a Medicare provider challenge a reimbursement determination in order to be entitled to an administrative appeal? These can all be reframed as questions about the scope of agencies’ regulatory jurisdiction— and they are all questions to which the Chevron framework applies. See Christopher v. SmithKline Beecham Corp., 567 U. S.
___, ___, ___ (2012) (slip op., at 2, 8); National Cable & Telecommunications Assn., supra, at 331, 333; United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 123, 131 (1985); Sebelius v. Auburn Regional Medical Center, 568 U. S.
___, ___, ___ (2013) (slip op., at 1, 11).
In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is “jurisdictional” or “nonjurisdictional.” Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not. See H. Edwards & L. Elliott, Federal Standards of Review 146 (2007) (“In practice, it does not appear to matter whether delegated authority is viewed as a threshold inquiry.”). The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not engaged in reasoned decisionmaking.
Fortunately, then, we have consistently held “that Chevron applies to cases in which an agency adopts a construction of a jurisdictional provision of a statute it administers.” 1 R. Pierce, Administrative Law Treatise §3.5, p. 187 (2010). One of our opinions explicitly says that no “exception exists to the normal [deferential] standard of review” for “‘jurisdictional or legal question[s] concerning the coverage’” of an Act. NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 830, n. 7 (1984). A prime example of deferential review for questions of jurisdiction is Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986). That case involved a CFTC interpretation of 7 U. S. C. §18(c), which provides that before the Commission takes action on a complaint, the complainant must file a bond to cover “any reparation award that may be issued by the Commission against the complainant on any counterclaim by respondent.” (Emphasis added.) The CFTC, pursuant to its broad rulemaking authority, see §12a(5), interpreted that oblique reference to counterclaims as granting it “the power to take jurisdiction over” not just federal-law counterclaims, but state-law counterclaims as well. Schor, supra, at 844. We not only deferred under Chevron to the Commission’s “eminently reasonable . . . interpretation of the statute it is entrusted to administer,” but also chided the Court of Appeals for declining to afford deference because of the putatively “‘statutory interpretation jurisdictional’ nature of the question at issue.” 478 U. S.,at 844–845.
Similar examples abound. We have afforded Chevron deference to the Commerce Department’s determination that its authority to seek anti-dumping duties extended to uranium imported under contracts for enrichment services, United States v. Eurodif S. A., 555 U. S. 305, 316 (2009); to the Interstate Commerce Commission’s view that courts, not the Commission, possessed “initial jurisdiction with respect to the award of reparations” for unreasonable shipping charges, Reiter v. Cooper, 507 U. S. 258, 269 (1993) (internal quotation marks and ellipsis omitted); and to the Army Corps of Engineers’ assertion that its permitting authority over discharges into “waters of the United States” extended to “freshwater wetlands” adjacent to covered waters, Riverside Bayview Homes, supra, at 123–124, 131.
We have even deferred to the FCC’s assertion that its broad regulatory authority extends to pre-empting conflicting state rules. City of New York v. FCC, 486 U. S. 57, 64 (1988); Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 700 (1984).3
Our cases hold that Chevron applies equally to statutes designed to curtail the scope of agency discretion. For instance, in Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 123 (1985), we considered a statute prohibiting the Environmental Protection Agency from “modify[ing] any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list.”
The EPA construed the statute as not precluding it from granting variances with respect to certain toxic pollutants. Finding no “clear congressional intent to forbid EPA’s sensible variance mechanism,” id., at 134, we deferred to the EPA’s construction of this express limitation on its own regulatory authority, id., at 125 (citing Chevron, 467 U. S. 837); see also, e.g., Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221, 226, 232–234 (1986).
The U. S. Reports are shot through with applications of Chevron to agencies’ constructions of the scope of their own jurisdiction. And we have applied Chevron where concerns about agency self-aggrandizement are at their apogee: in cases where an agency’s expansive construction of the extent of its own power would have wrought a fundamental change in the regulatory scheme. In FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000), the threshold question was the “appropriate framework for analyzing” the FDA’s assertion of “jurisdiction to regulate tobacco products,” id., at 126, 132—a question of vast “economic and political magnitude,” id., at 133. “Because this case involves an administrative agency’s construction of a statute that it administers,” we held, Chevron applied. 529 U. S., at 132. Similarly, in MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 224, 229, 231 (1994), we applied the Chevron framework to the FCC’s assertion that the statutory phrase “modify any requirement” gave it authority to eliminate rate-filing requirements, “the essential characteristic of a rate-regulated industry,” for long-distance telephone carriers.
The false dichotomy between “jurisdictional” and “nonjurisdictional” agency interpretations may be no more than a bogeyman, but it is dangerous all the same. Like the Hound of the Baskervilles, it is conjured by those with greater quarry in sight: Make no mistake — the ultimate target here is Chevron itself. Savvy challengers of agency action would play the “jurisdictional” card in every case. See, e.g., Cellco Partnership v. FCC, 700 F. 3d 534, 541 (CADC 2012). Some judges would be deceived by the specious, but scary-sounding, “jurisdictional”- “nonjurisdictional” line; others tempted by the prospect of making public policy by prescribing the meaning of ambiguous statutory commands. The effect would be to transfer any number of interpretive decisions—archetypal Chevron questions, about how best to construe an ambiguous term in light of competing policy interests — from the agencies that administer the statutes to federal courts.4
We have cautioned that “judges ought to refrain from substituting their own interstitial lawmaking” for that of an agency. Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 568 (1980). That is precisely what Chevron prevents.
One group of respondents contends that Chevron deference is inappropriate here because the FCC has “assert[ed] jurisdiction over matters of traditional state and local concern.” Brief for IMLA Respondents 35. But this case has nothing to do with federalism. Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning authorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a question of federal law. We rejected a similar faux-federalism argument in the Iowa Utilities Board case, in terms that apply equally here: “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U. S., at 379, n. 6. These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges. “[I]t is hard to spark a passionate ‘States’ rights’ debate over that detail.” Ibid.
A few words in response to the dissent. The question on which we granted certiorari was whether “a court should apply Chevron to review an agency’s determination of its own jurisdiction.” Pet. for Cert. i.5 Perhaps sensing the incoherence of the “jurisdictional-nonjurisdictional” line, the dissent does not even attempt to defend it, see post, at 5, but proposes a much broader scope for de novo judicial review: Jurisdictional or not, and even where a rule is at issue and the statute contains a broad grant of rulemaking authority, the dissent would have a court search provision-by-provision to determine “whether [that] delegation covers the ‘specific provision’ and ‘particular question’ before the court.” Post, at 11–12.
The dissent is correct that United States v. Mead Corp., 533 U. S. 218 (2001), requires that, for Chevron deference to apply, the agency must have received congressional authority to determine the particular matter at issue in the particular manner adopted. No one disputes that. But Mead denied Chevron deference to action, by an agency with rulemaking authority, that was not rulemaking. What the dissent needs, and fails to produce, is a single case in which a general conferral of rulemaking or adjudicative authority has been held insufficient to support Chevron deference for an exercise of that authority within the agency’s substantive field. There is no such case, and what the dissent proposes is a massive revision of our Chevron jurisprudence.
Where we differ from the dissent is in its apparent rejection of the theorem that the whole includes all of its parts—its view that a general conferral of rulemaking authority does not validate rules for all the matters the agency is charged with administering. Rather, the dissent proposes that even when general rulemaking authority is clear, every agency rule must be subjected to a de novo judicial determination of whether the particular issue was committed to agency discretion. It offers no standards at all to guide this open-ended hunt for congressional intent (that is to say, for evidence of congressional intent more specific than the conferral of general rulemaking authority). It would simply punt that question back to the Court of Appeals, presumably for application of some sort of totality-of-the-circumstances test—which is really, of course, not a test at all but an invitation to make an ad hoc judgment regarding congressional intent.
Thirteen Courts of Appeals applying a totality-of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos. There is no need to wade into these murky waters. It suffices to decide this case that the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority.
* * *
Those who assert that applying Chevron to “jurisdictional” interpretations “leaves the fox in charge of the henhouse” overlook the reality that a separate category of “jurisdictional” interpretations does not exist. The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.
- Where Congress has established a clear line, the agency cannot go beyond it; and
- Where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.
But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional.” If “the agency’s answer is based on a permissible construction of the statute,” that is the end of the matter. Chevron, 467 U. S., at 842.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 569 U. S. ____ (2013) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
Nos. 11–1545 and 11–1547
11–1545: CITY OF ARLINGTON, TEXAS, ET AL., PETITIONERS
FEDERAL COMMUNICATIONS COMMISSION ET AL.
11–1547: CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, PETITIONER
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[May 20, 2013]
JUSTICE BREYER, concurring in part and concurring in the judgment.
I agree with the Court that normally “the question a court faces when confronted with an agency’s interpretation of a statute it administers” is, “simply, whether the agency has stayed within the bounds of its statutory authority.” Ante, at 5–6. In this context, “the distinction between ‘jurisdictional’ and ‘non-jurisdictional’ interpretations is a mirage.” Ante, at 5.
Deciding just what those statutory bounds are, however, is not always an easy matter, and the Court’s case law abounds with discussion of the subject. A reviewing judge, for example, will have to decide independently whether Congress delegated authority to the agency to provide interpretations of, or to enact rules pursuant to, the statute at issue—interpretations or rules that carry with them “the force of law.” United States v. Mead Corp., 533 U. S. 218, 229 (2001). If so, the reviewing court must give special leeway or “deference” to the agency’s interpretation. See id., at 227–228.
We have added that, if “[e]mploying traditional tools of statutory construction,” INS v. Cardoza-Fonseca, 480 U. S. 421, 446 (1987), the court determines that Congress has spoken clearly on the disputed question, then “that is the end of the matter,” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). The agency is due no deference, for Congress has left no gap for the agency to fill. Id., at 842–844.
If, on the other hand, Congress has not spoken clearly, if, for example it has written ambiguously, then that ambiguity is a sign— but not always a conclusive sign—that Congress intends a reviewing court to pay particular attention to (i.e., to give a degree of deference to) the agency’s interpretation. See Gonzales v. Oregon, 546 U. S. 243, 258–269 (2006); Mead, supra, at 229.
I say that the existence of statutory ambiguity is sometimes not enough to warrant the conclusion that Congress has left a deference-warranting gap for the agency to fill because our cases make clear that other, sometimes context-specific, factors will on occasion prove relevant. (And, given the vast number of government statutes, regulatory programs, and underlying circumstances, that variety is hardly surprising.)
In Mead, for example, we looked to several factors other than simple ambiguity to help determine whether Congress left a statutory gap, thus delegating to the agency the authority to fill that gap with an interpretation that would carry “the force of law.” 533 U. S., at 229–231. Elsewhere, we have assessed:
“the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time.” Barnhart v. Walton, 535 U. S. 212, 222 (2002).
The subject matter of the relevant provision — for instance, its distance from the agency’s ordinary statutory duties or its falling within the scope of another agency’s authority — has also proved relevant. See Gonzalez, supra, at 265– 266. See also Gellhorn & Verkuil, Controlling ChevronBased Delegations, 20 Cardozo L. Rev. 989, 1007–1010 (1999).
Moreover, the statute’s text, its context, the structure of the statutory scheme, and canons of textual construction are relevant in determining whether the statute is ambiguous and can be equally helpful in determining whether such ambiguity comes accompanied with agency authority to fill a gap with an interpretation that carries the force of law. See Household Credit Services, Inc. v. Pfennig, 541 U. S. 232, 239–242 (2004); Zuni Public School Dist. No. 89 v. Department of Education, 550 U. S. 81, 98–99 (2007); FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000); Dole v. Steelworkers, 494 U. S. 26, 36 (1990).
Statutory purposes, including those revealed in part by legislative and regulatory history, can be similarly relevant. See Brown & Williamson Tobacco Corp., supra, at 143–147; Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 649 (1990); Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U. S. 45, 48–49 (2007). See also AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 412–413 (1999) (BREYER, J., concurring in part and dissenting in part).
Although seemingly complex in abstract description, in practice this framework has proved a workable way to approximate how Congress would likely have meant to allocate interpretive law-determining authority between reviewing court and agency.
The question whether Congress has delegated to an agency the authority to provide an interpretation that carries the force of law is for the judge to answer independently. The judge, considering “traditional tools of statutory construction”, CardozaFonseca, supra, at 446, will ask whether Congress has spoken unambiguously. If so, the text controls.
If not, the judge will ask whether Congress would have intended the agency to resolve the resulting ambiguity. If so, deference is warranted. See Mead, supra, at 229. Even if not, however, sometimes an agency interpretation, in light of the agency’s special expertise, will still have the “power to persuade, if lacking power to control,” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).
The case before us offers an example.
- The relevant statutory provision requires state or local governments to act on wireless siting applications “within a reasonable period of time after” a wireless service provider files such a request. 47 U. S. C. §332(c)(7)(B)(ii).
- The Federal Communications Commission (FCC) argued that this provision granted it a degree of leeway in determining the amount of time that is reasonable.
- Many factors favor the agency’s view:
- the language of the Telecommunications Act grants the FCC broad authority (including rulemaking authority) to administer the Act;
- the words are openended—i.e. “ambiguous”;
- the provision concerns an interstitial administrative matter, in respect to which the agency’s expertise could have an important role to play; and
- the matter, in context, is complex, likely making the agency’s expertise useful in helping to answer the “reasonableness” question that the statute poses.
See §151 (creating the FCC); §201(b) (providing rulemaking authority); National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 980–981 (2005) (acknowledging the FCC’s authority to administer the Act).
On the other side of the coin, petitioners point to two statutory provisions which, they believe, require a different conclusion —namely,
- [First], that the FCC lacked authority altogether to interpret §332(c)(7)(B)(ii). First, a nearby saving clause says: “Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” §332(c)(7)(A).
- Second, a judicial review provision, says: “Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.” §332(c)(7)(B)(v).
In my view, however, these two provisions cannot provide good reason for reaching the conclusion advocated by petitioners. The first provision begins with an exception, stating that it does not apply to (among other things) the “reasonableness” provision here at issue. The second simply sets forth a procedure for judicial review, a review that applies to most government actions.
Both are consistent with a statutory scheme that gives States, localities, the FCC, and reviewing courts each some role to play in the location of wireless service facilities. And neither “expressly describ[es] an exception” to the FCC’s plenary authority to interpret the Act. American Hospital Assn. v. NLRB, 499 U. S. 606, 613 (1991).
For these reasons, I would reject petitioners’ argument and conclude that §332(c)(7)(B)(ii) — the “reasonableness” statute — leaves a gap for the FCC to fill. I would hold that the FCC’s lawful efforts to do so carry “the force of law.” Mead, 533 U. S., at 229.
The Court of Appeals ultimately reached the same conclusion (though for somewhat different reasons), and the majority affirms the lower court. I consequently join the majority’s judgment and such portions of its opinion as are consistent with what I have written here.
Cite as: 569 U. S. ____ (2013) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 11–1545 and 11–1547
11–1545: CITY OF ARLINGTON, TEXAS, ET AL., PETITIONERS
FEDERAL COMMUNICATIONS COMMISSION ET AL.
11–1547: CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, PETITIONER
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 20, 2013]
CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY and JUSTICE ALITO join, dissenting.
My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.
One of the principal authors of the Constitution famously wrote that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison).
Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter [agencies] exercise
- legislative power, by promulgating regulations with the force of law;
- executive power, by policing compliance with those regulations; and
- judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.
The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.
The administrative state “wields vast power and touches almost every aspect of daily life.” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S.
___, ___ (2010) (slip op., at 18). The Framers could hardly have envisioned today’s “vast and varied federal bureaucracy” and the authority administrative agencies now hold over our economic, social, and political activities. Ibid.
“[T]he administrative state with its reams of regulations would leave them rubbing their eyes.” Alden v. Maine, 527 U. S. 706, 807 (1999) (Souter, J., dissenting), quoted in Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 755 (2002). And the federal bureaucracy continues to grow; in the last 15 years, Congress has launched more than 50 new agencies.
Compare Office of the Federal Register, United States Government Manual 1997/1998, with Office of the Federal Register, United States Government Manual 2012. And more are on the way. See, e.g., Congressional Research Service, C. Copeland, New Entities Created Pursuant to the Patient Protection and Affordable Care Act 1 (2010) (The PPACA “creates, requires others to create, or authorizes dozens of new entities to implement the legislation”).
Although the Constitution empowers the President to keep federal officers accountable, administrative agencies enjoy in practice a significant degree of independence. As scholars have noted, “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2250 (2001); see also S. Breyer, Making Our Democracy Work 110 (2010) (“the president may not have the time or willingness to review [agency] decisions”).
- President Truman colorfully described his power over the administrative state by complaining, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.” See R. Nathan, The Administrative Presidency 2 (1986).
- President Kennedy once told a constituent, “I agree with you, but I don’t know if the government will.” See id., at 1.
The collection of agencies housed outside the traditional executive departments, including the Federal Communications Commission, is routinely described as the “headless fourth branch of government,” reflecting not only the scope of their authority but their practical independence. See, e.g., Administrative Conference of United States, D. Lewis & J. Selin, Sourcebook of United States Executive Agencies 11 (2012).
As for judicial oversight, agencies enjoy broad power to construe statutory provisions over which they have been given interpretive authority. In Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., we established a test for reviewing “an agency’s construction of the statute which it administers.” 467 U. S. 837, 842 (1984).
- If Congress has “directly spoken to the precise question at issue,” we said, “that is the end of the matter.” Ibid. A contrary agency interpretation must give way.
- But if Congress has not expressed a specific intent, a court is bound to defer to any “permissible construction of the statute,” even if that is not “the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id., at 843, and n. 11.
When it applies, Chevron is a powerful weapon in an agency’s regulatory arsenal. Congressional delegations to agencies are often ambiguous—expressing “a mood rather than a message.” Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv. L. Rev. 1263, 1311 (1962). By design or default, Congress often fails to speak to “the precise question” before an agency. In the absence of such an answer, an agency’s interpretation has the full force and effect of law, unless it “exceeds the bounds of the permissible.” Barnhart v. Walton, 535 U. S. 212, 218 (2002).
It would be a bit much to describe the result as “the very definition of tyranny,” but the danger posed by the growing power of the administrative state cannot be dismissed. See, e.g., Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S.
___ (2011) (SCALIA, J., concurring) (slip op., at 3) (noting that the FCC “has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends”); Sackett v. EPA, 566 U. S.
___, ___–___ (2012) (slip op., at 9–10) (rejecting agency argument that would “enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review”).
What the Court says in footnote 4 of its opinion is good, and true (except of course for the “dissent overstates” part). Ante, at 13–14, n. 4.
The Framers did divide governmental power in the manner the Court describes, for the purpose of safeguarding liberty. And yet . . . the citizen confronting thousands of pages of regulations— promulgated by an agency directed by Congress to regulate, say, “in the public interest”—can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight— a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching.
It is against this background that we consider whether the authority of administrative agencies should be augmented even further, to include not only broad power to give definitive answers to questions left to them by Congress, but also the same power to decide when Congress has given them that power.
Before proceeding to answer that question, however, it is necessary to sort through some confusion over what this litigation is about. The source of the confusion is a familiar culprit: the concept of “jurisdiction,” which we have repeatedly described as a word with “‘many, too many, meanings.’” Union Pacific R. Co. v. Locomotive Engineers, 558 U. S. 67, 81 (2009).
The Court states that the question “is whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, its jurisdiction).” Ante, at 5.
That is fine—until the parenthetical. The parties, amici, and court below too often use the term “jurisdiction” imprecisely, which leads the Court to misunderstand the argument it must confront. That argument is not that “there exist two distinct classes of agency interpretations,” some “big, important ones” that “define the agency’s ‘jurisdiction,’” and other “humdrum, run-of-the-mill” ones that “are simply applications of jurisdiction the agency plainly has.” Ibid. The argument is instead that a court should not defer to an agency on whether Congress has granted the agency interpretive authority over the statutory ambiguity at issue.
You can call that “jurisdiction” if you’d like, as petitioners do in the question presented. But given that the term is ambiguous, more is required to understand its use in that question than simply “having read it.” Ante, at 15, n. 5. It is important to keep in mind that the term, in the present context, has the more precise meaning noted above, encompassing congressionally delegated authority to issue interpretations with the force and effect of law. See 668 F. 3d 229, 248 (CA5 2012) (case below) (“The issue in the instant case is whether the FCC possessed statutory authority to administer §332(c)(7)(B)(ii) and (v) by adopting the 90- and 150-day time frames”). And that has nothing do with whether the statutory provisions at issue are “big” or “small.”
“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). The rise of the modern administrative state has not changed that duty. Indeed, the Administrative Procedure Act, governing judicial review of most agency action, instructs reviewing courts to decide “all relevant questions of law.” 5 U. S. C. §706.
We do not ignore that command when we afford an agency’s statutory interpretation Chevron deference; we respect it. We give binding deference to permissible agency interpretations of statutory ambiguities because Congress has delegated to the agency the authority to interpret those ambiguities “with the force of law.” United States v. Mead Corp., 533 U. S. 218, 229 (2001); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27–28 (1983) (“the court is not abdicating its constitutional duty to ‘say what the law is’ by deferring to agency interpretations of law: it is simply applying the law as ‘made’ by the authorized law-making entity”).
But before a court may grant such deference, it must on its own decide whether Congress — the branch vested with lawmaking authority under the Constitution — has in fact delegated to the agency lawmaking power over the ambiguity at issue. See ante, at 4 (BREYER, J., concurring in part and concurring in judgment) (“The question whether Congress has delegated to an agency the authority to provide an interpretation that carries the force of law is for the judge to answer independently.”). Agencies are creatures of Congress; “an agency literally has no power to act . . . unless and until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355, 374 (1986). Whether Congress has conferred such power is the “relevant question of law” that must be answered before affording Chevron deference. 5 U. S. C. §706.
Our precedents confirm this conclusion — beginning with Chevron itself. In Chevron, the EPA promulgated a regulation interpreting the term “stationary sources” in the Clean Air Act. 467 U. S., at 840 (quoting 42 U. S. C. §7502(b)(6)(1982 ed.)). An environmental group petitioned for review of the rule, challenging it as an impermissible interpretation of the Act. 467 U. S., at 841, 859. Finding the statutory text “not dispositive” and the legislative history “silent on the precise issue,” we upheld the rule. Id., at 862, 866.
In our view, the challenge to the agency’s interpretation “center[ed] on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress.” Id., at 866. Judges, we said, “are not experts in the field, and are not part of either political branch of the Government.” Id., at 865. Thus, because Congress had not answered the specific question at issue, judges had no business providing their own resolution on the basis of their “personal policy preferences.” Ibid. Instead, the “agency to which Congress ha[d] delegated policymaking responsibilities” was the appropriate political actor to resolve the competing interests at stake, “within the limits of that delegation.” Ibid.
Chevron’s rule of deference was based on — and limited by — this congressional delegation. And the Court did not ask simply whether Congress had delegated to the EPA the authority to administer the Clean Air Act generally. We asked whether Congress had “delegat[ed] authority to the agency to elucidate a specific provision of the statute by regulation.” Id., at 843–844 (emphasis added); see id., at 844 (discussing “the legislative delegation to an agency on a particular question” (emphasis added)). We deferred to the EPA’s interpretation of “stationary sources” based on our conclusion that the agency had been “charged with responsibility for administering the provision.” Id., at 865 (emphasis added).
We have never faltered in our understanding of this straightforward principle, that whether a particular agency interpretation warrants Chevron deference turns on the court’s determination whether Congress has delegated to the agency the authority to interpret the statutory ambiguity at issue.
We made the point perhaps most clearly in Adams Fruit Co. v. Barrett, 494 U. S. 638 (1990). In that case, the Department of Labor contended the Court should defer to its interpretation of the scope of the private right of action provided by the Migrant and Seasonal Agriculture Worker Protection Act (AWPA), 29 U. S. C. §1854, against employers who intentionally violated the Act’s motor vehicle safety provisions. We refused to do so. Although “as an initial matter” we rejected the idea that Congress left a “statutory ‘gap’ ” for the agency to fill, we reasoned that if the “AWPA’s language establishing a private right of action is ambiguous,” the Secretary of Labor’s interpretation of its scope did not warrant Chevron deference. 494 U. S., at 649.
In language directly applicable to the question before us, we explained that “[a] precondition to deference under Chevron is a congressional delegation of administrative authority.” Ibid. Although “Congress clearly envisioned, indeed expressly mandated, a role for the Department of Labor in administering the statute by requiring the Secretary to promulgate standards implementing AWPA’s motor vehicle provisions,” we found “[n]o such delegation regarding AWPA’s enforcement provisions.” Id., at 650 (emphasis added). It would therefore be “inappropriate,” we said, “to consult executive interpretations” of the enforcement provisions to resolve ambiguities “surrounding the scope of AWPA’s judicially enforceable remedy.” Ibid. Without questioning the principle that agency determinations “within the scope of delegated authority are entitled to deference,” we explained that “it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’” Ibid. (quoting Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U. S. 726, 745 (1973)).
Our subsequent cases follow the same approach. In United States v. Mead Corp., supra, for example, Chevron deference turned on whether Congress had delegated to the agency authority to interpret the statutory ambiguity by a particular means. The Customs Service had issued a “classification ruling,” interpreting the term “diaries” in a tariff schedule to include “day planners” of the type Mead imported, and on that basis subjected the planners to a four-percent tariff. Mead protested the imposition of the tariff, the Customs Service claimed Chevron deference for its interpretation, and the controversy made its way to our Court. Id., at 224–226.
In Mead, we again made clear that the “category of interpretative choices” to which Chevron deference applies is defined by congressional intent. Id., at 229. Chevron deference, we said, rests on a recognition that Congress has delegated to an agency the interpretive authority to implement “a particular provision” or answer “‘a particular question.’” Ibid. (quoting Chevron, 467 U. S., at 844).
An agency’s interpretation of “a particular statutory provision” thus qualifies for Chevron deference only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” 533 U. S., at 226–227.
The Court did not defer to the agency’s views but instead determined that Congress had not delegated interpretive authority to the Customs Service to definitively construe the tariff schedule through classification rulings. Neither the statutory authorization for the classification rulings, nor the Customs Service’s practice in issuing such rulings, “reasonably suggest[ed] that Congress ever thought of [such] classification rulings as deserving the deference claimed for them.” Id., at 231. And in the absence of such a delegation, we concluded the interpretations adopted in those rulings were “beyond the Chevron pale.” Id., at 234.
Gonzales v. Oregon, 546 U. S. 243 (2006), is in the same line of precedent. In that case, as here, deference turned on whether a congressional delegation of interpretive authority reached a particular statutory ambiguity. The Attorney General claimed Chevron deference for his interpretation of the phrase “legitimate medical purpose” in the Controlled Substances Act (CSA) to exclude the prescribing and dispensing of controlled substances for the purpose of assisting suicide. Id., at 254, 258. No one disputed that “legitimate medical purpose” was “ambiguous in the relevant sense.” Id., at 258. Nor did any Justice dispute that the Attorney General had been granted the power in the CSA to promulgate rules with the force of law. Ibid.; see id., at 281 (SCALIA, J., dissenting). Nevertheless, the Court explained, “Chevron deference . . . is not accorded merely because the statute is ambiguous and an administrative official is involved.” Id., at 258. The regulation advancing the interpretation, we said, “must be promulgated pursuant to authority Congress has delegated to the official.” Ibid. (citing Mead, supra, at 226–227).
In the CSA, Congress delegated to the Attorney General the authority to promulgate regulations “relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances,” 21 U. S. C. §821, or “for the efficient execution of his functions under [the CSA],” §871(b). After considering the text, structure, and purpose of the Act, the Court concluded on its own that interpreting “legitimate medical purpose” fell under neither delegation. Gonzales, 546 U. S., at 258–269. Because the regulation “was not promulgated pursuant to the Attorney General’s authority, its interpretation of ‘legitimate medical purpose’ d[id] not receive Chevron deference.” Id., at 268.
Adams Fruit, Mead, and Gonzales thus confirm that Chevron deference is based on, and finds legitimacy as, a congressional delegation of interpretive authority.
An agency interpretation warrants such deference only if Congress has delegated authority to definitively interpret a particular ambiguity in a particular manner.
Whether Congress has done so must be determined by the court on its own before Chevron can apply. See H. Edwards, L. Elliot, & M. Levy, Federal Courts Standards of Review 168 (2d ed. 2013) (“a court decides de novo whether an agency has acted within the bounds of congressionally delegated authority” (citing Mead, supra, at 226–227, and Gonzales, supra, at 258)); Sales & Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1564 (2009) (“if delegation really is antecedent to deference, as Mead insists, it cannot be that courts should defer to an agency’s views onwhether a delegation has taken place”).
In other words, we do not defer to an agency’s interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide. Simply put, that question is “beyond the Chevron pale.” Mead, supra, at 234.
Despite these precedents, the FCC argues that a court need only locate an agency and a grant of general rulemaking authority over a statute. Chevron deference then applies, it contends, to the agency’s interpretation of any ambiguity in the Act, including ambiguity in a provision said to carve out specific provisions from the agency’s general rulemaking authority. If Congress intends to exempt part of the statute from the agency’s interpretive authority, the FCC says, Congress “can ordinarily be expected to state that intent explicitly.” Brief for Federal Respondents 30 (citing American Hospital Assn. v. NLRB, 499 U. S. 606 (1991)).
If a congressional delegation of interpretive authority is to support Chevron deference, however, that delegation must extend to the specific statutory ambiguity at issue. The appropriate question is whether the delegation covers the “specific provision” and “particular question” before the court. Chevron, 467 U. S., at 844. A congressional grant of authority over some portion of a statute does not necessarily mean that Congress granted the agency interpretive authority over all its provisions. See Adams Fruit, 494 U. S., at 650.
An example that might highlight the point concerns statutes that parcel out authority to multiple agencies, which “may be the norm, rather than an exception.” Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 S. Ct. Rev. 201, 208; see, e.g.,
- Gonzales, 546 U. S, at 250–251 (describing shared authority over the CSA between the Attorney General and the Secretary of Health and Human Services);
- Sutton v. United Air Lines, Inc., 527 U. S. 471, 478 (1999) (authority to issue regulations implementing the Americans with Disabilities Act “is split primarily among three Government agencies”).
- The Dodd-Frank Wall Street Reform and Consumer Protection Act, for example, authorizes rulemaking by at least eight different agencies. See Congressional Research Service, C. Copeland, Rulemaking Requirements and Authorities in the Dodd-Frank Wall Street Reform and Consumer Protection Act 7 (2010).
When presented with an agency’s interpretation of such a statute, a court cannot simply ask whether the statute is one that the agency administers; the question is whether authority over the particular ambiguity at issue has been delegated to the particular agency.
By the same logic, even when Congress provides interpretive authority to a single agency, a court must decide if the ambiguity the agency has purported to interpret with the force of law is one to which the congressional delegation extends.
A general delegation to the agency to administer the statute will often suffice to satisfy the court that Congress has delegated interpretive authority over the ambiguity at issue. But if Congress has exempted particular provisions from that authority, that exemption must be respected, and the determination whether Congress has done so is for the courts alone.
The FCC’s argument that Congress “can ordinarily be expected to state that intent explicitly,” Brief for Federal Respondents 30 (citing American Hospital, supra), goes to the merits of that determination, not to whether a court should decide the question de novo or defer to the agency. Indeed, that is how the Court in American Hospital considered it. It was in the process of “employing the traditional tools of statutory construction” that the Court said it would have expected Congress to speak more clearly if it had intended to exclude an entire subject area—employee units for collecting bargaining—from the NLRB’s general rulemaking authority. Id., at 613, 614.
The Court concluded, after considering the language, structure, policy, and legislative history of the Act on its own—without deferring to the agency—that the meaning of the statute was “clear and contrary to the meaning advanced by petitioner.” Id., at 609–614. To be sure, the Court also noted that “[e]ven if we could find any ambiguity in [the provision] after employing the traditional tools of statutory construction, we would still defer to Board’s reasonable interpretation.” Id., at 614 (emphasis added). But that single sentence of dictum cannot carry the day for the FCC here.
As the preceding analysis makes clear, I do not understand petitioners to ask the Court—nor do I think it necessary—to draw a “specious, but scary-sounding” line between “big, important” interpretations on the one hand and “humdrum, run-of-the-mill” ones on the other. Ante, at 5, 12. Drawing such a line may well be difficult.
Distinguishing between whether an agency’s interpretation of an ambiguous term is reasonable and whether that term is for the agency to interpret is not nearly so difficult. It certainly did not confuse the FCC in this proceeding. Compare In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994, 14000–14003 (2009) (addressing the latter question), with id., at 14003–14015 (addressing the former). Nor did it confound the Fifth Circuit. Compare 668 F. 3d, at 247–254 (deciding “whether the FCC possessed statutory authority to administer §332(c)(7)(B)(ii)”), with id., at 254–260 (considering “whether the 90- and 150-day time frames themselves also pass muster under Chevron”). More importantly, if the legitimacy of Chevron deference is based on a congressional delegation of interpretive authority, then the line is one the Court must draw.
The majority’s hypothetical Common Carrier Acts do not demonstrate anything different. Ante, at 6–8. The majority states that in its second Common Carrier Act, Section 2 makes clear that Congress “‘conferred interpretative power on the agency’” to interpret the ambiguous terms “common carrier” and “unreasonable condition.” Ante, at 7 (quoting Brief for Petitioners in No. 1545, p. 14). Thus, it says, under anyone’s theory a court must defer to the agency’s reasonable interpretations of those terms. Correct.
The majority claims, however, that “petitioners’ theory would accord the agency no deference” in its interpretation of the same ambiguous terms in the first Common Carrier Act. Ante, at 7–8. But as I understand petitioners’ argument—and certainly in my own view — a court, in both cases, need only decide for itself whether Congress has delegated to the agency authority to interpret the ambiguous terms, before affording the agency’s interpretation Chevron deference.
For the second Common Carrier Act, the answer is easy. The majority’s hypothetical Congress has spoken clearly and specifically in Section 2 of the Act about its delegation of authority to interpret Section 1. As for the first Act, it is harder to analyze the question, given only one section of a presumably much larger statute. But if the first Common Carrier Act is like most agencies’ organic statutes, I have no reason to doubt that the agency would likewise have interpretive authority over the same ambiguous terms, and therefore be entitled to deference in construing them, just as with the second Common Carrier Act. There is no new “test” to worry about, cf. ante, at 16; courts would simply apply the normal rules of statutory construction.
That the question might be harder with respect to the first Common Carrier Act should come as no surprise. The second hypothetical Congress has more carefully defined the agency’s authority than the first. Whatever standard of review applies, it is more difficult to interpret an unclear statute than a clear one.
My point is simply that before a court can defer to the agency’s interpretation of the ambiguous terms in either Act, it must determine for itself that Congress has delegated authority to the agency to issue those interpretations with the force of law.
The majority also expresses concern that adopting petitioners’ position would undermine Chevron’s stable background rule against which Congress legislates. Ante, at 5. That, of course, begs the question of what that stable background rule is. See Merrill & Hickman, Chevron’s Domain, 89 Geo. L. Rev. 833, 910 (2001) (“Courts have never deferred to agencies with respect to questions such as whether Congress has delegated to an agency the power to act with the force of law through either legislative rules or binding adjudications. Similarly, it has never been maintained that Congress would want courts to give Chevron deference to an agency’s determination that it is entitled to Chevron deference, or should give Chevron deference to an agency’s determination of what types of interpretations are entitled to Chevron deference” (footnote omitted)).
The Court sees something nefarious behind the view that courts must decide on their own whether Congress has delegated interpretative authority to an agency, before deferring to that agency’s interpretation of law. What is afoot, according to the Court, is a judicial power-grab, with nothing less than “Chevron itself ” as “the ultimate target.” Ante, at 12.
The Court touches on a legitimate concern: Chevron importantly guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive. But there is another concern at play, no less firmly rooted in our constitutional structure. That is the obligation of the Judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well.
An agency’s interpretive authority, entitling the agency to judicial deference, acquires its legitimacy from a delegation of lawmaking power from Congress to the Executive. Our duty to police the boundary between the Legislature and the Executive is as critical as our duty to respect that between the Judiciary and the Executive. See Zivotofsky v. Clinton, 566 U. S. (2012) (slip op., at 8). In the present context, that means ensuring that the Legislative Branch has in fact delegated lawmaking power to an agency within the Executive Branch, before the Judiciary defers to the Executive on what the law is. That concern is heightened, not diminished, by the fact that the administrative agencies, as a practical matter, draw upon a potent brew of executive, legislative, and judicial power. And it is heightened, not diminished, by the dramatic shift in power over the last 50 years from Congress to the Executive—a shift effected through the administrative agencies.
We reconcile our competing responsibilities in this area by ensuring judicial deference to agency interpretations under Chevron—but only after we have determined on our own that Congress has given interpretive authority to the agency. Our “task is to fix the boundaries of delegated authority,” Monaghan, 83 Colum. L. Rev., at 27; that is not a task we can delegate to the agency. We do not leave it to the agency to decide when it is in charge.
* * *
In these cases, the FCC issued a declaratory ruling interpreting the term “reasonable period of time” in 47 U. S. C. §332(c)(7)(B)(ii). The Fifth Circuit correctly recognized that it could not apply Chevron deference to the FCC’s interpretation unless the agency “possessed statutory authority to administer §332(c)(7)(B)(ii),” but it erred by granting Chevron deference to the FCC’s view on that antecedent question. See 668 F. 3d, at 248. Because the court should have determined on its own whether Congress delegated interpretive authority over §332(c)(7)(B)(ii) to the FCC before affording Chevron deference, I would vacate the decision below and remand the cases to the Fifth Circuit to perform the proper inquiry in the first instance.
I respectfully dissent.
- This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.
- The dissent’s non-answer to this example reveals the hollowness of its theory. It “might,” the dissent claims, be “harder” to interpret the first Act, because it is (somehow) less “clear” than the second Act. Post, at 15–16 (opinion of ROBERTS, C. J.). That it is even possible that the two could come out differently under the dissent’s test (whatever it is) shows that that test must be wrong. The two statutes are substantively identical. Any difference in outcome would be arbitrary, so a sound interpretive approach should yield none.
- The dissent’s reliance on dicta in Adams Fruit Co. v. Barrett, 494 U. S. 638 (1990), see post, at 8–9, is misplaced. In that case, the Department of Labor had interpreted a statute creating a private right of action for migrant or seasonal farmworkers as providing no remedy where a state workers’-compensation law covered the worker. 494 U. S., at 649. We held that we had no need to “defer to the Secretary of Labor’s view of the scope of” that private right of action “because Congress has expressly established the Judiciary and not the Department of Labor as the adjudicator of private rights of action arising under the statute.” Ibid. Adams Fruit stands for the modest proposition that the Judiciary, not any executive agency, determines “the scope”—including the available remedies—“of judicial power vested by” statutes establishing private rights of action. Id., at 650. Adams Fruit explicitly affirmed the Department’s authority to promulgate the substantive standards enforced through that private right of action. See ibid. The dissent’s invocation of Gonzales v. Oregon, 546 U. S. 243 (2006),see post, at 10–11, is simply perplexing: The majority opinion in that case expressly lists the Communications Act as an example of a statute under which an agency’s “authority is clear because the statute gives an agency broad power to enforce all provisions of the statute.” 546 U. S., at 258–259 (citing 47 U. S. C. §201(b); emphasis added). That statement cannot be squared with the dissent’s proposed remand for the Fifth Circuit to determine “whether Congress delegated interpretive authority over §332(c)(7)(B)(ii) to the FCC.” Post, at 18.
- THE CHIEF JUSTICE’s discomfort with the growth of agency power, see post, at 2–4, is perhaps understandable. But the dissent overstates when it claims that agencies exercise “legislative power” and “judicial power.” Post, at 2; see also post, at 16. The former is vested exclusively in Congress, U. S. Const., Art. I, §1, the latter in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1. Agencies make rules (“Private cattle may be grazed on public lands X, Y, and Z subject to certain conditions”) and conduct adjudications (“This rancher’s grazing permit is revoked for violation of the conditions”) and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.” Art. II, §1, cl. 1.
- The dissent — apparently with no attempt at irony — accuses us of “misunderstand[ing]” the question presented as one of “jurisdiction.” Post, at 5. Whatever imprecision inheres in our understanding of the question presented derives solely from our having read it.