Arlington v. FCC
569 U.S. ___ (2013)

Annotate this Case

SUPREME COURT OF THE UNITED STATES

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Nos. 11–1545 and 11–1547

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CITY OF ARLINGTON, TEXAS, et al., PETITIONERS

11–1545      v.

FEDERAL COMMUNICATIONS COMMISSION et al.

CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, PETITIONER

11–1547      v.

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.

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 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.”

II

     “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 Con- gress 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.

III

A

     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).

B

     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 pro-mulgated 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 on whether 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.

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, 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 author-ity 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 Con-gressional 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.

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 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 major-ity 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 con-struing 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)).

VI

     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.

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