City of Arlington v. Fed. Commc'ns Comm'n
City of Arlington v. Fed. Commc'ns Comm'n
Opinion
*293
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.,
I
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,
*294
The Act imposes five substantive limitations, which are codified in
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,
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)."
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.
We granted certiorari, 568 U.S. ----,
II
A
*296
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."
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.,
B
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 *297 (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.,
*1869
Lauf v. E.G. Shinner & Co.,
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 act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires . Because the *298 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:
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:
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 *299 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
*1870
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,
*300
This point is nicely illustrated by our decision in
National Cable & Telecommunications Assn., Inc. v. Gulf Power Co.,
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. ----, ----, ----,
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 *1871 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.
C
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.,
Similar examples abound. We have afforded
Chevron
deference to the Commerce Department's determination that its authority to seek antidumping duties extended to uranium imported under contracts for enrichment services,
United States v. Eurodif S. A.,
*1872
*303
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.,
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.,
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
*1873
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,
III
A
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."
B
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 *306 incoherence of the "jurisdictional-nonjurisdictional" line, the dissent does not even attempt to defend it, see post, at 1864, but proposes a much *1874 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 1882 - 1883.
The dissent is correct that
United States v. Mead Corp.,
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 *307 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 decisionmaking 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,"
*1875
that is the end of the matter.
Chevron,
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice BREYER, concurring in part and concurring in the judgment.
*308 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 1879 - 1880. In this context, "the distinction between 'jurisdictional' and 'non-jurisdictional' interpretations is a mirage." Ante, at 1879 - 1880.
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.,
We have added that, if "[e]mploying traditional tools of statutory construction,"
INS v. Cardoza-Fonseca,
I say that the existence of statutory ambiguity is sometimes not enough to warrant the conclusion that Congress
*309
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."
"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 , 222,122 S.Ct. 1265 ,152 L.Ed.2d 330 (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
Gonzales,
*1876
See also Gellhorn & Verkuil, Controlling
Chevron
-Based Delegations,
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,
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,"
Cardoza-Fonseca, supra, at 446,
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.
*311
(3) the provision concerns an interstitial administrative matter, in respect to which the agency's expertise could have an important role to play; and (4) 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,
On the other side of the coin, petitioners point to two statutory provisions which, they believe, require a different conclusion-namely, 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
*312
the Act.
American Hospital Assn. v. NLRB,
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,
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.
I
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 they 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 *313 have *1878 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. ----, ----,
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,
*314 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."
*1879
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,
*315
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. ----, ----,
What the Court says in footnote 4 of its opinion is good, and true (except of course for the "dissent overstates" part). Ante, at 1873, 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.' "
*316
Union Pacific R. Co. v. Locomotive Engineers,
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 1868. 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."
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 1873, 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
II
"It is emphatically the province and duty of the judicial department to say what the law is."
Marbury v. Madison,
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.,
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 1876 (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,
III
A
Our precedents confirm this conclusion-beginning with
Chevron
itself. In
Chevron,
the EPA promulgated a regulation interpreting the term
*318
"stationary sources" in the Clean Air Act. 467 U.S., at 840,
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."
B
We have never faltered in our understanding of this straightforward principle, that whether a particular agency *319 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,
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."
In
Mead,
we again made clear that the "category of interpretative choices" to which
Chevron
deference applies is defined by congressional intent.
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."
*321
Gonzales v. Oregon,
In the CSA, Congress delegated to the Attorney General the authority to promulgate
*1883
regulations "relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances,"
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
*322
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. Elliott, & 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,
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,
IV
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,
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
*323
provision" and "particular question" before the court.
Chevron,
467 U.S., at 844,
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,
*1884
between the Attorney General and the Secretary of Health and Human Services);
Sutton v. United Air Lines, Inc.,
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 *324 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.
V
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 1868, 1879. 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
*325
Declaratory Ruling,
The majority's hypothetical Common Carrier Acts do not demonstrate anything different. Ante, at 1880 - 1881. 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 1880 - 1881 (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 1880 - 1881. 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 *326 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 1885 - 1886; 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 1879 - 1880. 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)).
VI
The Court sees something nefarious behind the view that courts must decide on *1886 their own whether Congress has delegated interpretative authority to an agency, before deferring to that agency's interpretation of law. What is afoot, according *327 to the Court, is a judicial power-grab, with nothing less than " Chevron itself" as "the ultimate target." Ante, at 1873.
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. ----, ----,
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.
* * *
*328
In these cases, the FCC issued a declaratory ruling interpreting the term "reasonable period of time" in
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 1873 - 1874 (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,
The dissent's invocation of
Gonzales v. Oregon,
THE CHIEF JUSTICE's discomfort with the growth of agency power, see post, at 1877 - 1879, is perhaps understandable. But the dissent overstates when it claims that agencies exercise "legislative power" and "judicial power." Post, at 1877 - 1878; see also post, at 1885 - 1886. 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 1879 - 1880. Whatever imprecision inheres in our understanding of the question presented derives solely from our having read it.
Reference
- Full Case Name
- CITY OF ARLINGTON, TEXAS, Et Al., Petitioners v. FEDERAL COMMUNICATIONS COMMISSION Et Al. Cable, Telecommunications, and Technology Committee of the New Orleans City Council, Petitioner v. Federal Communications Commission Et Al.
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- 667 cases
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