SUPREME COURT OF THE UNITED STATES
Nos. 13–1041 and 13–1052
THOMAS E. PEREZ, SECRETARY OF LABOR, et al., PETITIONERS
MORTGAGE BANKERS ASSOCIATION et al.
JEROME NICKOLS, et al., PETITIONERS
MORTGAGE BANKERS ASSOCIATION
on writs of certiorari to the united states court of appeals for the district of columbia circuit
[March 9, 2015]
Justice Thomas, concurring in the judgment.
I concur in the Court’s holding that the doctrine first announced in Paralyzed Veterans of America
v. D. C. Arena L. P.
, 117 F. 3d 579 (CADC 1997), is inconsistent with the Administrative Procedure Act (APA),5 U. S. C. §551 et seq.
, and must be rejected. An agency’s substantial revision of its interpretation of a regulation does not amount to an “amendment” of the regulation as that word is used in the statute.
I write separately because these cases call into question the legitimacy of our precedents requiring deference to administrative interpretations of regulations. That line of precedents, beginning with Bowles
v. Seminole Rock & Sand Co.
,325 U. S. 410 (1945), requires judges to defer to agency interpretations of regulations, thus, as happened in these cases, giving legal effect to the interpretations rather than the regulations themselves. Because this doctrine effects a transfer of the judicial power to an executive agency, it raises constitutional concerns. This line of precedents undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent.
The doctrine of deference to an agency’s interpretation of regulations is usually traced back to this Court’s decision in Seminole Rock, supra
, which involved the interpretation of a war-time price control regulation, id.,
at 411. Along with a general price freeze, the Administrator of the Office of Price Administration had promulgated specialized regulations governing the maximum price for different commodities. Id.,
at 413. When the Administrator brought an enforcement action against a manufacturer of crushed stone, the manufacturer challenged the Administrator’s interpretation of his regulations.
The lower courts agreed with the manufacturer’s interpretation, id.,
at 412–413, but this Court reversed. In setting out the approach it would apply to the case, the Court announced—without citation or explanation—that an administrative interpretation of an ambiguous regulation was entitled to “controlling weight”:
“Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”Id.,
The Court then concluded that the rule “clearly” favored the Administrator’s interpretation, rendering this discussion dictum. Id.,
From this unsupported rule developed a doctrine of deference that has taken on a life of its own.[1
] It has been broadly applied to regulations issued by agencies across a broad spectrum of subjects. See, e.g., Robertson
v. Methow Valley Citizens Council
,490 U. S. 332–359 (1989) (forests); Ehlert
v. United States
,402 U. S. 99–105 (1971) (Selective Service); INS
,395 U. S. 62,72 (1969) (deportation); Udall
,380 U. S. 1–17 (1965) (oil and gas leases). It has even been applied to an agency’s interpretation of another agency’s regulations. See Pauley
v. BethEnergy Mines, Inc.
,501 U. S. 680–699 (1991). And, it has been applied to an agency interpretation that was inconsistent with a previous interpretation of the same regulation. See Long Island Care at Home, Ltd.
,551 U. S. 158–171 (2007). It has been applied to formal and informal interpretations alike, including those taken during litigation. See Auer
,519 U. S. 452,462 (1997). Its reasoning has also been extended outside the context of traditional agency regulations into the realm of criminal sentencing. See Stinson
v. United States
,508 U. S. 36–45 (1993) (concluding that the Sentencing Commission’s commentary on its Guidelines is analogous to an agency interpretation of its own regulations, entitled to Seminole Rock
The Court has even applied the doctrine to an agency interpretation of a regulation cast in such vague aspirational terms as to have no substantive content. See Thomas Jefferson Univ.
,512 U. S. 504–513 (1994); see also id.,
at 518 (Thomas, J., dissenting).
On this steady march toward deference, the Court only once expressly declined to apply Seminole Rock
deference on the ground that the agency’s interpretation was plainly erroneous.[2
] In that case, we were faced with the predict-able consequence of this line of precedents: An agency sought deference to an opinion letter that interpreted a permissive regulation as mandatory. See Christensen
v. Harris County
,529 U. S. 576,588 (2000). We rejected that request for deference as an effort, “under the guise of interpreting a regulation, to create de facto
a new regulation.” Ibid.
This narrow limit on the broad deference given the agency interpretations, though sound, could not save a doctrine that was constitutionally infirm from the start. Seminole Rock
was constitutionally suspect from the start, and this Court’s repeated extensions of it have only magnified the effects and the attendant concerns.
We have not always been vigilant about protecting the structure of our Constitution. Although this Court has repeatedly invoked the “separation of powers” and “the constitutional system of checks and balances” as core principles of our constitutional design, essential to the protection of individual liberty, see, e.g., Stern
, 564 U. S. ___, ___–___ (2011) (slip op., at 16–17) (internal quotation marks omitted), it has also endorsed a “more pragmatic, flexible approach” to that design when it has seemed more convenient to permit the powers to be mixed, see, e.g., Nixon
v. Administrator of General Services
,433 U. S. 425,442 (1977). As the history shows, that approach runs the risk of compromising our constitutionalstructure.
The Constitution’s particular blend of separated powers and checks and balances was informed by centuries of political thought and experiences. See M. Vile, Constitutionalism and the Separation of Powers 38, 168–169 (2d ed. 1998) (Vile). Though the theories of the separation of powers and checks and balances have roots in the ancient world, events of the 17th and 18th centuries played a crucial role in their development and informed the men who crafted and ratified the Constitution.
Over a century before our War of Independence, the English Civil War catapulted the theory of the separation of powers to prominence. As political theorists of the day witnessed the conflict between the King and Parliament, and the dangers of tyrannical government posed by each, they began to call for a clear division of authority between the two. Id.
, at 44–45, 48–49. A 1648 work titled The Royalist’s Defence offered perhaps the first extended account of the theory of the separation of powers: “[W]hilst the Supreamacy
, the Power
to Judge the Law, and Authority
to make new Lawes, are kept in severall hands
, the known Law is preserved
, but united,
it is vanished
, instantly thereupon, and Arbytrary
power is introduced.” The Royalist’s Defence 80 (1648) (italics in original).
John Locke and Baron de Montesquieu endorsed and expanded on this concept. See Vile 63–64. They agreed with the general theory set forth in The Royalist’s Defence, emphasizing the need for a separation of powers to protect individual liberty. J. Locke, Second Treatise of Civil Government §§143–144, p. 72 (J. Gough ed. 1947); Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). But they also advocated a system of checks and balances to reinforce that separation. Vile 72–73, 102. For instance, they agreed that the executive should have the power to assemble and dismiss the legislature and to consent to laws passed by it. See Locke, supra
, §§151, 156, at 75, 77–78; Montesquieu, Spirit of the Laws, at 157, 159. Montesquieu warned that “power should be a check to power” lest the legislature “arrogate to itself what authority it pleased . . . [and] soon destroy all the other powers.” Id.
, at 150, 157.
The experience of the States during the period between the War of Independence and the ratification of the Constitution confirmed the wisdom of combining these theories. Although many State Constitutions of the time included language unequivocally endorsing the separation of powers, they did not secure that separation with checks and balances, Vile 147, and actively placed traditional executive and judicial functions in the legislature, G. Wood, The Creation of the American Republic 1776–1787, pp. 155–156 (1969). Under these arrangements, state legislatures arrogated power to themselves and began to confiscate property, approve the printing of paper money, and suspend the ordinary means for the recovery of debts. Id.
, at 403–409.[3
When the Framers met for the Constitutional Convention, they understood the need for greater checks and balances to reinforce the separation of powers. As Madison remarked, “experience has taught us a distrust” of the separation of powers alone as “a sufficient security to each [branch] [against] encroachments of the others.” 2 Re-cords of the Federal Convention of 1787, p. 77 (M. Farrand rev. 1966). “[I]t is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper.” Ibid.
The Framers thus separated the three main powers of Government—legislative, executive, and judicial—into the three branches created by Articles I, II, and III. But they also created checks and balances to reinforce that separation. For example, they gave Congress specific enumerated powers to enact legislation, Art. I, §8, but gave the President the power to veto that legislation, subject to congressional override by a supermajority vote, Art. I, §7, cls. 2, 3. They gave the President the power to appoint principal officers of the United States, but gave the Senate the power to give advice and consent to those appointments. Art. II, §2, cl. 2. They gave the House and Senate the power to agree to adjourn for more than three days, Art. I, §5, cl. 4, but gave the President the power, “in Case of Disagreement between them,” to adjourn the Congress “to such Time as he shall think proper.” Art. II, §3, cl. 3. During the ratification debates, Madison argued that this structure represented “the great security” for liberty in the Constitution. The Federalist No. 51, p. 321 (C. Rossiter ed. 1961) (J. Madison).
To the Framers, the separation of powers and checks and balances were more than just theories. They were practical and real protections for individual liberty in the new Constitution. See Mistretta
v. United States
,488 U. S. 361,426 (1989) (Scalia, J., dissenting) (“[The Constitution] is a prescribed structure, a framework, for the conduct of government. In designing that structure, the Framers themselves
considered how much commingling [of governmental powers] was, in the generality of things, acceptable, and set forth their conclusions in the document”). The Judiciary—no less than the other two branches—has an obligation to guard against deviations from those principles. The Seminole Rock
line of precedent is one such deviation.
raises two related constitutional concerns. It represents a transfer of judicial power to the Executive Branch, and it amounts to an erosion of the judicial obligation to serve as a “check” on the political branches.
When a party properly brings a case or controversy to an Article III court, that court is called upon to exercise the “judicial Power of the United States.” Art. III, §1. For the reasons I explain in this section, the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.
Those who ratified the Constitution knew that legal texts would often contain ambiguities. See generally Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary’s Structural Role, 53 Stan. L. Rev. 1, 20–21, and n. 66 (2000); Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–526 (2003). As James Madison explained, “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal . . . .” The Federalist No. 37,at 229.
The judicial power was understood to include the power to resolve these ambiguities over time. See ibid.
Alexander Hamilton lauded this power, arguing that “[t]he interpretation of the laws is the proper and peculiar province of the courts.” Id.
No. 78, at 467. It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law, but only the judicial interpretation would be considered authoritative in a judicial proceeding. Vile 360.
Although the Federalists and Anti-Federalists engaged in a public debate about this interpretive power, that debate centered on the dangers inherent in the power, not on its allocation under the Constitution. See, e.g.,
Letters from The Federal Farmer XV (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315–316 (H. Storing ed. 1981) (arguing that the interpretive power made the Judiciary the most dangerous branch). Writing as “Brutus,” one leading anti-Federalist argued that judges “w[ould] not confine themselves to any fixed or established rules, but w[ould] determine, according to what appears to them, the reason and spirit of the constitution.” Essays of Brutus (Jan. 31, 1788), in 2 id.
, at 420. The Federalists rejected these arguments, assuring the public that judges would be guided “by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 471 (A. Hamilton). Those rules included principles of interpretation that had been set out by jurists for centuries. See, e.g.
, 2 S. von Pufendorf, De Officio Hominis Et Civis Juxta Legem Naturalem Libri Duo 83–86 (1682) (F. Moore transl. 1927); see also 1 W. Blackstone, Commentaries on the Laws of England 59–61 (1765).
One of the key elements of the Federalists’ arguments in support of the allocation of power to make binding interpretations of the law was that Article III judges would exercise independent judgment. Although “judicial independence” is often discussed in terms of independence from external threats, the Framers understood the concept to also require independence from the “internal threat” of “human will.” P. Hamburger, Law and Judicial Duty 507, 508 (2008); see also The Federalist No. 78, at 465 (A. Hamilton) (“The judiciary . . . may truly be said to have neither FORCE nor WILL but merely judgment . . . ”). Independent judgment required judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources. Internal sources might include personal biases, while external sources might include pressure from the political branches, the public, or otherinterested parties. See Hamburger, supra,
The Framers made several key decisions at the Convention with these pressures in mind. For example, they rejected proposals to include a federal council of revision after several participants at the Convention expressed concern that judicial involvement in such a council would foster internal biases. Rufus King of Maryland, for example, asserted that “the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.” 1 Records of the Federal Convention of 1787, at 98. Alexander Hamilton repeated these concerns in The Federalist, arguing that “the judges, who are to be interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capacities” or “be induced to embark too far in the political views of [the Executive]” from too much association with him. The Federalist No. 73, at 446; see also Hamburger, supra,
The Framers also created structural protections in the Constitution to free judges from external influences. They provided, for example, that judges should “hold their Offices during good Behaviour” and receive “a Compensation, which shall not be diminished during their Continuance in Office.” Art. III, §1. Hamilton noted that such unequivocal language had been shown necessary by the experience of the States, where similar state constitutional protections for judges had not been “sufficiently definiteto preclude legislative evasions” of the separation of the judicial power. The Federalist No. 79, at 472. Because “power over a man’s subsistence amounts to a power over his will,” he argued that Article III’s structural protections would help ensure that judges fulfilled their constitutional role. Ibid.
The Framers made the opposite choice for legislators and the Executive. Instead of insulating them from external pressures, the Constitution tied them to those pressures. It provided for election of Members of the House of Representatives every two years, Art. I, §2, cl. 1; and selection of Members of the Senate every six years, Art. I, §3, cl. 1. It also provided for the President to be subject to election every four years. Art. II, §1, cl. 1. “The President is [thus] directly dependent on the people, and since there is only one
is responsible. The people know whom to blame . . . .” See Morrison
,487 U. S. 654,729 (1988) (Scalia, J., dissenting). To preserve that accountability, we have held that executive officers must
be subject to removal by the President to ensure account-ability within the Executive Branch. See Free Enterprise Fund
v. Public Company Accounting Oversight Bd.
,561 U. S. 477,495 (2010); see also Morrison
, at 709 (opinion of Scalia, J.) (“It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all
Given these structural distinctions between the branches, it is no surprise that judicial interpretations are defini-tive in cases and controversies before the courts. Courts act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Federalist No. 78, at 467 (A. Hamilton). The Legislature and Executive may be swayed by popular sentiment to abandon the strictures of the Constitution or other rules of law. But the Judiciary, insulated from both internal and external sources of bias, is duty bound to exercise independent judgment in applying the law.
Interpreting agency regulations calls for that exercise of independent judgment. Substantive regulations have the force and effect of law. See, e.g., United States
v. Mead Corp.
,533 U. S. 218–232 (2001).[4
Agencies and private parties alike can use these regulations in proceedings against regulated parties. See, e.g.
v. SmithKline Beecham Corp.
, 567 U. S. ___, ___–___ (2012) (slip op., at 6–7) (private party relying on Department of Labor regulations); FCC
v. Fox Television Stations, Inc.
, 567 U. S. ___, ___ (2012) (slip op., at 6) (agency issuing notices of liability under regulations). Just as it is critical for judges to exercise independent judgment in applying statutes, it is critical for judges to exercise independent judgment in determining that a regulation properly covers the conduct of regulated parties. Defining the legal meaning of the regulation is one aspect of that determination.
deference, however, precludes judges from independently determining that meaning. Rather than judges’ applying recognized tools of interpretation to determine the best meaning of a regulation, this doctrine demands that courts accord “controlling weight” to the agency interpretation of a regulation, subject only to the narrow exception for interpretations that are plainly erroneous or inconsistent with the regulation. That deference amounts to a transfer of the judge’s exercise of interpretive judgment to the agency. See 1 S. Johnson, Dictionary of the English Language 499 (4th ed. 1773) (defining “[d]efer” as “to leave to another’s judgment”). But the agency, as part of the Executive Branch, lacks the structural protections for independent judgment adopted by the Framers, including the life tenure and salary protections of Article III. Because the agency is thus not properly constituted to exercise the judicial power under the Constitution, the transfer of interpretive judgment raises serious separation-of-powers concerns.
is constitutionally questionable for an additional reason: It undermines the judicial “check” on the political branches. Unlike the Legislative and Executive Branches, each of which possesses several political checks on the other, the Judiciary has one primary check on the excesses of political branches. That check is the enforcement of the rule of law through the exercise of judicial power.
Judges have long recognized their responsibility to apply the law, even if they did not conceive of it as a “check” on political power. During the 17th century, for example, King James I sought to pressure Chief Justice Coke to affirm the lawfulness of his efforts to raise revenue without the participation of Parliament. Hamburger, Law and Judicial Duty, at 200–201. Coke sought time to confer with his fellow jurists to “make an advised answer according to law and reason.” Case of Proclamations
, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611). But the King’s representative, Lord Chancellor Ellesmere, responded that “he would advise the Judges to maintain the power and prerogative of the King” and suggested that, “in cases in which there is no authority and precedent,” the judiciary should “leave it to the King to order in it according to his wisdom.” Ibid
. Coke famously responded, “[T]he King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament.” Ibid.
When James I later attempted to do just that, Coke declared the proclamations “ ‘utterly against Law and reason, and for that void.’ ” Hamburger, supra
, at 202.
The Framers expected Article III judges to engage in similar efforts, by applying the law as a “check” on the excesses of both the Legislative and Executive Branches. See, e.g.,
3 J. Elliot, Debates in the Several Conventions on the Adoption of the Federal Constitution 553 (1863) (J. Marshall) (“If [the Government of the United States] make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. . . . They would declare it void”); see also Vile 174. The Framers “contemplated [the Constitution], as a rule for the government of courts
, as well as of the legislature.” Marbury
, 1 Cranch 137, 179–180 (1803). Thus, if a case involved a conflict between a law and the Constitution, judges would have a duty “to adhere to the latter and disregard the former.” The Federalist No. 78, at 468 (A. Hamilton); see also Marbury
, 1 Cranch, at 178. Similarly, if a case involved an executive effort to extend a law beyond its meaning, judges would have a duty to adhere to the law that had been properly promulgated under the Constitution. Cf. id.
, at 157–158 (considering the scope of the President’s constitutional power of appointment). As this Court said long ago, “[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts
, as well as other departments, are bound by that instrument.” Id.,
Article III judges cannot opt out of exercising their check. As we have long recognized, “[t]he Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’ ” Zivotofsky
, 566 U. S. ___, ___ (2012) (slip op., at 5) (quoting Cohens
, 6 Wheat. 264, 404 (1821)). This responsibility applies not only to constitutional challenges to particular statutes, see, e.g., Shelby County
, 570 U. S. ___, ___ (2013) (slip op., at 2), including those based on the separation of powers, Free Enterprise Fund
, 561 U. S., at 501–502, but also to more routine questions about the best interpretation of statutes, see, e.g., Whitfield
v. United States
, 574 U. S. ___, ___–___ (2015) (slip op., at 2–3), or the compatibility of agency actions with enabling statutes, Utility Air Regulatory Group
, 573 U. S. ___, ___ (2014) (slip op., at 10). In each case, the Judiciary is called upon to exercise its independent judgment and apply the law.
But we have not consistently exercised the judicial check with respect to administrative agencies. Even though regulated parties have repeatedly challenged agency interpretations as inconsistent with existing regulations, we have just as repeatedly declined to exercise independent judgment as to those claims. Instead, we have deferred to the executive agency that both promulgated the regulations and enforced them. Although an agency’s interpretation of a regulation might be the best interpretation, it also might not. When courts refuse even to decide what the best interpretation is under the law, they abandon the judicial check. That abandonment permits precisely the accumulation of governmental powers that the Framers warned against. See The Federalist No. 47, at 302 (J. Madison).
This accumulation of governmental powers allows agencies to change the meaning of regulations at their discretion and without any advance notice to the parties. It is precisely this problem that the United States Court of Appeals for the D. C. Circuit attempted to address by requiring agencies to undertake notice and comment procedures before substantially revising definitive interpretations of regulations. Paralyzed Veterans, supra
. Though legally erroneous, the Court of Appeals’ reasoning was practically sound. When courts give “controlling weight” to an administrative interpretation of a regulation—instead of to the best
interpretation of it—they effectively give the interpretation—and not the regulation—the force and effect of law. To regulated parties, the new interpretation might as well be a new regulation.
These cases provide a classic example of the problem. The Fair Labor Standards Act of 1938 establishes federal minimum wage and overtime requirements, but exempts from these requirements “any employee engaged in a bona fide executive, administrative, or professional capac-ity . . . , or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary).”29 U. S. C. §213(a)(1). The Department of Labor has accordingly promulgated regulations providing that “an employee whose primary duty is selling financial products does not qualify for the administrative exemption.” 29 CFR §541.203(b) (2015).
Unsure whether certain mortgage-loan officers qualified as employees whose primary duty is selling financial products, the Mortgage Bankers Association asked the Department of Labor for advice. In 2006, the Department concluded that the officers are not employees whose primary duty is selling financial products. But in 2010, the Department reversed course, concluding exactly the opposite. If courts accord “controlling weight” to both the 2006 and 2010 interpretations, the regulated entities are subject to two opposite legal rules imposed under the same regulation.
This practice turns on its head the principle that the United States is “a government of laws, and not of men.” Marbury
, at 163. Regulations provide notice to regulated parties in only a limited sense because their meaning will ultimately be determined by agencies rather than by the “strict rules and precedents” to which Alexander Hamilton once referred.[5
Although this Court offered no theoretical justifica-tion for Seminole Rock
deference when announcing it, sev-eral justifications have been proposed since. None is persuasive.
Probably the most oft-recited justification for Seminole Rock
deference is that of agency expertise in administering technical statutory schemes. Under this justification, deference to administrative agencies is necessary when a “regulation concerns ‘a complex and highly technical regulatory program’ in which the identification and classification of relevant ‘criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.’ ” Thomas Jefferson Univ.,
512 U. S., at 512.
This defense of Seminole Rock
deference misidentifies the relevant inquiry. The proper question faced by courts in interpreting a regulation is not what the best policy choice might be, but what the regulation means. Because this Court has concluded that “substantive agency regulations have the ‘force and effect of law,’ ” Chrysler Corp.
,441 U. S. 281,295 (1979), such regulations should be interpreted like any other law. Thus, we should “assum[e] that the ordinary meaning of the regulation’s language expresses” its purpose and enforce it “according to its terms.” See Hardt
v. Reliance Standard Life Ins. Co.
,560 U. S. 242,251 (2010) (internal quotation marks omitted). Judges are at least as well suited as administrative agencies to engage in this task. Cf. Marbury
, 1 Cranch, at 177 (“It is emphatically the province and duty of the judicial department to say what the law is”). Indeed, judges are frequently called upon to interpret the meaning of legal texts and are able to do so even when those texts involve technical language. See, e.g., Barber
,347 U. S. 637–643 (1954) (interpreting deportation statute according to technical meaning).
Fundamentally, the argument about agency expertise is less about the expertise of agencies in interpreting language than it is about the wisdom of according agencies broad flexibility to administer statutory schemes.[6
] “But policy arguments supporting even useful ‘political inventions’ are subject to the demands of the Constitution which defines powers and . . . sets out . . . how those powers are to be exercised.” INS
,462 U. S. 919,945 (1983). Even in the face of a perceived necessity, the Constitution protects us from ourselves. New York
v. United States
,505 U. S. 144–188 (1992).
Another oft-recited justification for Seminole Rock
deference is that agencies are better situated to define the original intent behind their regulations. See Martin
v. Occupational Safety and Health Review Comm’n
,499 U. S. 144–153 (1991). Under this justification, “[b]ecause the Secretary [of Labor] promulgates th[e] standards, the Secretary is in a better position . . . to reconstruct the purpose of the regulations in question.” Id.
, at 152.
This justification rings hollow. This Court has afforded Seminole Rock
deference to agency interpretations even when the agency was not the original drafter. See Pauley
, 501 U. S., at 696–698 (applying Seminole Rock
deference to one agency’s interpretation of another agency’s regulations because Congress had delegated authority to both to administer the program). It has likewise granted Seminole Rock
deference to agency interpretations that are inconsistent with interpretations adopted closer in time to the promulgation of the regulations. See, e.g., Long Island Care at Home
, 551 U. S., at 170–171.
Even if the scope of Seminole Rock
deference more closely matched the original-drafter justification, it would still fail. It is the text of the regulations that have the force and effect of law, not the agency’s intent. “Citizens arrange their affairs not on the basis of their legislators’ unexpressed intent, but on the basis of the law as it is written and promulgated.” Zuni Public School Dist. No. 89
v. Department of Education
,550 U. S. 81,119 (2007) (Scalia, J., dissenting). Cf. Wyeth
,555 U. S. 555–587 (2009) (Thomas, J., concurring in judgment) (noting that only “federal standards . . . that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures”—not Congress’ “purposes and objectives”—can become the “law of the land”). “To be governed by legislated text rather than legislators’ intentions is what it means to be ‘a Government of laws, not of men.’ ” Zuni Public School Dist. No. 89
, at 119 (Scalia, J., dissenting). Only the text of a regulation goes through the procedures established by Congress for agency rulemaking. And it is that text on which the public is entitled to rely. For the same reasons that we should not accord controlling weight to postenactment expressions of intent by individual Members of Congress, see Sullivan
,496 U. S. 617–632 (1990) (Scalia, J., concurring in part),
we should not accord controlling weight to expressions of intent by administrators ofagencies.
A third asserted justification for Seminole Rock
deference is that Congress has delegated to agencies the authority to interpret their own regulations. See, e.g., Martin
, 499 U. S., at 151. The theory is that, “[b]ecause applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, . . . the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Ibid.
This justification fails because Congress lacks authority to delegate the power. As we have explained in an analogous context, “[t]he structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.” Bowsher
,478 U. S. 714,726 (1986). Similarly, the Constitution does not empower Congress to issue a judicially binding interpretation of the Constitution or its laws. Lacking the power itself, it cannot delegate that power to an agency.
To hold otherwise would be to vitiate the separation of powers and ignore the “sense of a sharp necessity to separate the legislative from the judicial power . . . [that] triumphed among the Framers of the new Federal Constitution.” Plaut
v. Spendthrift Farm, Inc.
,514 U. S. 211,221 (1995). As this Court has explained, the “essential balance” of the Constitution is that the Legislature is “possessed of power to ‘prescrib[e] the rules by which the duties and rights of every citizen are to be regulated,’ but the power of ‘[t]he interpretation of the laws’ [is] ‘the proper and peculiar province of the courts.’ ” Id.,
at 222 (citation omitted; third brackets added). Although the Constitution imposes a duty on all three branches to interpret the laws within their own spheres, the power to create legally binding interpretations rests with the Judiciary. See Marbury
, 1 Cranch, at 177, 179–180.
A final proposed justification for Seminole Rock
deference is that too much oversight of administrative matters would imperil the “independence and esteem” of judges. See, e.g.,
Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses of Charles Evans Hughes, 1906–1916, p. 185 (2d ed. 1916). The argument goes that questions of administration are those which “lie close to the public impatience,” id.,
at 186, and thus the courts’ resolution of such questions could “expose them to the fire of public criticism,” id.,
But this argument, which boils down to a policy judgment of questionable validity, cannot vitiate the constitutional allocation of powers. The Judicial Branch is separate from the political branches for a reason: It has the obligation to apply the law to cases and controversies that come before it, and concerns about the popular esteem of individual judges—or even the Judiciary as a whole—have no place in that analysis. Our system of Government could not long survive absent adherence to the written Constitution that formed it.
* * *
Although on the surface these cases require only a straightforward application of the APA, closer scrutiny reveals serious constitutional questions lurking beneath. I have “acknowledge[d] the importance of stare decisis
to the stability of our Nation’s legal system.” “But stare decisis
is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.” McDonald
,561 U. S. 742,812 (2010) (Thomas, J., concurring inpart and concurring in judgment) (citation omitted). By my best lights, the entire line of precedent beginning with Seminole Rock
raises serious constitutional questions and should be reconsidered in an appropriate case.