SUPREME COURT OF THE UNITED STATES
_________________
Nos. 13–1041 and 13–1052
_________________
THOMAS E. PEREZ, SECRETARY OF LABOR, et al.,
PETITIONERS
13–1041
v.
MORTGAGE BANKERS ASSOCIATION et al.
JEROME NICKOLS, et al., PETITIONERS
13–1052
v.
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.
I
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., at 413–414.
The Court then concluded that the rule “clearly” favored the
Administrator’s interpretation, rendering this discussion dictum.
Id., at 415–417.
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 v.
Stanisic,395 U. S. 62,72 (1969) (deportation);
Udall v.
Tallman,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. v.
Coke,551 U. S. 158–171
(2007). It has been applied to formal and informal interpretations
alike, including those taken during litigation. See
Auer v.
Robbins,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 deference).
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. v.
Shalala,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.
II
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 v.
Marshall, 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.
A
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 and
Tyrannicall 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.
B
Seminole Rock 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.
1
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, at 508–521.
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, at 508–512.
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. (emphasis
deleted).
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
President,
he is responsible. The people know whom to blame
. . . .” See
Morrison v.
Olson,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,
supra,
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
are”).
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.,
Christopher 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.
Seminole Rock 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.
2
Seminole Rock 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 v.
Madison, 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., at 180.
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 v.
Clinton, 566 U. S.
___, ___ (2012) (slip op., at 5) (quoting
Cohens v.
Virginia, 6 Wheat. 264, 404 (1821)). This responsibility
applies not only to constitutional challenges to particular
statutes, see,
e.g., Shelby County v.
Holder, 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 v.
EPA, 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).
C
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,
supra, 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]
III
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.
A
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. v.
Brown,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 v.
Gonzales,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
v.
Chadha,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).
B
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
v.
Levine,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,
supra, 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 v.
Finkelstein,496
U. S. 617–632 (1990) (Scalia, J., concurring in part), we
should not accord controlling weight to expressions of intent by
administrators ofagencies.
C
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
v.
Synar,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.
D
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., at 187.
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 v.
Chicago,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.