SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–1545 and 11–1547
_________________
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.