SUPREME COURT OF THE UNITED STATES
Nos. 11–1545 and 11–1547
CITY OF ARLINGTON, TEXAS, et al.,
FEDERAL COMMUNICATIONS COMMISSION
CABLE, TELECOMMUNICATIONS, AND
TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL,
FEDERAL COMMUNICATIONS COMMISSION
on writs of certiorari to the united states
court of appeals for the fifth circuit
[May 20, 2013]
Chief Justice Roberts, with whom Justice
Kennedy and Justice Alito join, dissenting.
My disagreement with the Court is fundamental.
It is also easily expressed: A court should not defer to an agency
until the court decides, on its own, that the agency is entitled to
deference. Courts defer to an agency’s interpretation of law
when and because Congress has conferred on the agency interpretive
authority over the question at issue. An agency cannot exercise
interpretive authority until it has it; the question whether an
agency enjoys that authority must be decided by a court, without
deference to the agency.
One of the principal authors of the
Constitution famously wrote that the “accumulation of all
powers, legislative, executive, and judiciary, in the same hands,
. . . may justly be pronounced the very definition of
tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed.
1961) (J. Madison). Although modern administrative agencies fit
most comfortably within the Executive Branch, as a practical matter
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
v. Public Company Accounting Oversight
, 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
“[T]he administrative state with its
reams of regulations would leave them rubbing their eyes.”
, 527 U.S.
, 807 (1999) (Souter, J., dissenting), quoted in Federal
v. South Carolina Ports Authority
, 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,
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
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
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.
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.
v. Natural Resources Defense Council, Inc.
established a test for reviewing “an agency’s
construction of the statute which it administers.” 467 U.S.
, 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.”
, 535 U.S.
, 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.
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
, 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
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
v. Locomotive Engineers
, 558 U.S.
, 81 (2009).
The Court states that the question “is
whether a court must defer under Chevron
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
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.
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.”
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
“It is emphatically the province and
duty of the judicial department to say what the law is.”
, 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.
We do not ignore that command when we afford an
agency’s statutory interpretation Chevron
we respect it. We give binding deference to permissible agency
interpretations of statutory ambiguities because
has delegated to the agency the authority to interpret those
ambiguities “with the force of law.” United
v. Mead Corp.
, 533 U.S.
, 229 (2001); see also Monaghan, Marbury
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
, 476 U.S.
, 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.
Our precedents confirm this
conclusion—beginning with 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
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.,
866. Judges, we said, “are not experts in the field, and are
not part of either political branch of the Government.”
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
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
’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
at 843–844 (emphasis added);
, 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.
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
We made the point perhaps most clearly in
Adams Fruit Co.
(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
is a congressional delegation of
administrative authority.” Ibid.
“Congress clearly envisioned, indeed expressly mandated, a
role for the Department of Labor in administering the statute by
requiring the Secretary to promulgate standards
AWPA’s motor vehicle provisions
,” we found
“[n]o such delegation regarding AWPA’s enforcement
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,
, 411 U.S.
, 745 (1973)).
Our subsequent cases follow the same approach.
In United States
v. Mead Corp.
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
deference for its interpretation, and the
controversy made its way to our Court. Id.,
, we again made clear that the
“category of interpretative choices” to which
deference applies is defined by congressional
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.
467 U. S., at 844).
An agency’s interpretation of
“a particular statutory provision” thus qualifies for
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
at 231. And in the absence of such a
delegation, we concluded the interpretations adopted in those
rulings were “beyond the Chevron
, 546 U.S.
(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.,
Nor did any Justice dispute that the Attorney General had been
granted the power in the CSA to promulgate rules with the force of
; see id.,
at 281 (Scalia, J., dissenting).
Nevertheless, the Court explained, “Chevron
. . . is not accorded merely because the statute is
ambiguous and an administrative official is involved.”
at 258. The regulation advancing the interpretation, we
said, “must be promulgated pursuant to authority Congress has
delegated to the official.” Ibid.
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
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
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
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
226–227, and Gonzales
at 258)); Sales
& Adler, The Rest is Silence: Chevron
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
, at 234.
Despite these precedents, the FCC argues that
a court need only locate an agency and a grant of general
rulemaking authority over a statute. Chevron
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.
, 499 U.S.
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
, 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
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.
, 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
), goes to the merits of that
determination, not to whether a court should decide the question
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
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
at 614 (emphasis added). But
that single sentence of dictum cannot carry the day for the FCC
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
, 24 FCC Rcd. 13994, 14000–14003 (2009) (addressing
the latter question), with id.,
(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.,
(considering “whether the 90- and 150-day time frames
themselves also pass muster under Chevron
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,
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
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
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.
at 16; courts would simply apply the normal rules of
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
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
’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 &
’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
deference to an agency’s determination that it
is entitled to Chevron
deference, or should give
deference to an agency’s determination of what
types of interpretations are entitled to Chevron
deference” (footnote omitted)).
The Court sees something nefarious behind the
view that courts must decide on their own whether Congress has
delegated interpretative authority to an agency, before deferring
to that agency’s interpretation of law. What is afoot,
according to the Court, is a judicial power-grab, with nothing less
itself” as “the ultimate
The Court touches on a legitimate concern:
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
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
, 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
We reconcile our competing responsibilities in
this area by ensuring judicial deference to agency interpretations
—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
deference to the FCC’s interpretation unless
the agency “possessed statutory authority to administer
§332(c)(7)(B)(ii),” but it erred by granting
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
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.