City of Arlington v. Fed Commcns Commn

290

Syllabus

CITY OF ARLINGTON, TEXAS, et al. v. FEDERAL COMMUNICATIONS COMMISSION et al.

certiorari to the united states court of appeals for the ąfth circuit No. 11–1545. Argued January 16, 2013—Decided May 20, 2013*

The Communications Act of 1934, as amended, requires state or local gov­ ernments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” 47 U. S. C. § 332(c)(7)(B)(ii). Relying on its broad authority to implement the Com­ munications Act, see 47 U. S. C. § 201(b), the Federal Communications Commission (FCC or Commission) issued a Declaratory Ruling conclud­ ing that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, sought review of the Declar­ atory Ruling in the Fifth Circuit. They argued that the Commission lacked authority to interpret § 332(c)(7)(B)’s limitations. The Court of Appeals, relying on Circuit precedent holding that Chevron U. S. A.

Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, applies to an agency’s interpretation of its own statutory jurisdiction, applied Chevron to that question. Finding the statute ambiguous, it upheld as a permissible construction of the statute the FCC’s view that § 201(b)’s broad grant of regulatory authority empowered it to adminis­ ter § 332(c)(7)(B).

Held: Courts must apply the Chevron framework to an agency’s interpre­ tation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (i. e., its jurisdiction). Pp. 296–307.

(a) Under Chevron, a reviewing court must first ask whether Con­ gress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. 467

U. S., at 842–843. However, if “the statute is silent or ambiguous,” the

court must defer to the administering agency’s construction of the stat­ ute so long as it is permissible. Id., at 843. P. 296.

(b) When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has

*Together with No. 11–1547, Cable, Telecommunications, and Technol­ ogy Committee of New Orleans City Council v. Federal Communications Commission et al., also on certiorari to the same court.

Cite as: 569 U. S. 290 (2013)

291

Syllabus

stayed within the bounds of its statutory authority. There is no distinc­ tion between an agency’s “jurisdictional” and “nonjurisdictional” inter­ pretations. The “jurisdictional-nonjurisdictional” line is meaningful in the judicial context because Congress has the power to tell the courts what classes of cases they may decide—that is, to define their jurisdic­ tion—but not to prescribe how they decide those cases. But for agen­ cies charged with administering congressional statutes, both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of “jurisdictional” questions from the Chevron frame­ work. See, e. g., National Cable & Telecommunications Assn., Inc. v.

Gulf Power Co., 534 U. S. 327, 333, 339. Pp. 296–301.

(c) This Court has consistently afforded Chevron deference to agen­ cies’ constructions of the scope of their own jurisdiction. See, e. g., Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833; United States v. Eurodif S. A., 555 U. S. 305, 316. Chevron applies to statutes designed to curtail the scope of agency discretion, see Chemical Mfrs.

Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 123, and even where concerns about agency self-aggrandizement are at their apogee—i. e., where an agency’s expansive construction of the extent of its own power would have wrought a fundamental change in the regula­ tory scheme, see FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132. Pp. 301–305.

(d) The contention that Chevron deference is not appropriate here because the FCC asserted jurisdiction over matters of traditional state and local concern is meritless. These cases have nothing to do with federalism: The statute explicitly supplants state authority, so the ques­ tion is simply whether a federal agency or federal courts will draw the lines to which the States must hew. P. 305.

(e) United States v. Mead Corp., 533 U. S. 218, requires that, for Chev­ ron deference to apply, the agency must have received congressional authority to determine the particular matter at issue in the particular manner adopted. But Mead denied Chevron deference to action, by an agency with rulemaking authority, that was not rulemaking. There is no case in which a general conferral of rulemaking or adjudicative au­ thority has been held insufficient to support Chevron deference for an exercise of that authority within the agency’s substantive field. A gen­ eral conferral of rulemaking authority validates rules for all the matters the agency is charged with administering. It suffices to decide these cases that the preconditions to deference under Chevron are satisfied

292

Syllabus

because Congress has unambiguously vested the FCC with general au­ thority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority. Pp. 305–307.

668 F. 3d 229, affirmed.

Scalia, J., delivered the opinion of the Court, in which Thomas, Gins­ burg, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed an opin­ ion concurring in part and concurring in the judgment, post, p. 308.

Roberts, C. J., filed a dissenting opinion, in which Kennedy and Alito, JJ., joined, post, p. 312.

Thomas C. Goldstein argued the cause for petitioners in both cases. With him on the briefs in No. 11–1545 were Jo­ seph Van Eaton, James R. Hobson, Matthew K. Schetten­ helm, Kevin K. Russell, Kevin R. Amer, Tejinder Singh, and Thomas D. Bunton. William D. Aaron, Jr., and Basile J.

Uddo filed a brief for Cable, Telecommunications, and Tech­ nology Committee of the New Orleans City Council, peti­ tioner in No. 11–1547. Paul D. Clement filed briefs in both cases for respondents International Municipal Lawyers As­ sociation et al. in support of petitioners.

Solicitor General Verrilli argued the cause in both cases for the federal respondents and for respondent Cellco Part­ nership d/ b/a Verizon Wireless. With him on the brief for the federal respondents were Deputy Solicitor General Stewart, Joseph R. Palmore, Sean A. Lev, Peter Karanjia, Jacob M. Lewis, and James M. Carr. Helgi C. Walker, Thomas R. McCarthy, Brett A. Shumate, Walter Dellinger, Jonathan D. Hacker, Anton Metlitsky, and Michael E.

Glover filed a brief for respondent Cellco Partnership d/ b/a Verizon Wireless.†

†Briefs of amici curiae urging reversal in both cases were filed for the Cato Institute et al. by Colin E. Wrabley, David J. Bird, Ilya Shapiro, and Nicholas Quinn Rosenkranz; for the National Governors Association et al. by Thomas W. Merrill, Lisa E. Soronen, and James Bradford Ram­ say; and for the National Water Resources Association et al. by Roderick

Cite as: 569 U. S. 290 (2013)

293

Opinion of the Court Justice Scalia delivered the opinion of the Court.

We consider whether an agency’s interpretation of a statu­ tory ambiguity that concerns the scope of its regulatory au­ thority (that is, its jurisdiction) is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).

Wireless telecommunications networks require towers and antennas; proposed sites for those towers and antennas must be approved by local zoning authorities. In the Telecommu­ nications Act of 1996, Congress “impose[d] specific limita­ tions on the traditional authority of state and local govern­ ments to regulate the location, construction, and modification of such facilities,” Rancho Palos Verdes v. Abrams, 544 U. S.

113, 115 (2005), and incorporated those limitations into the Communications Act of 1934, see 110 Stat. 56, 151. Section 201(b) of that Act empowers the Federal Communications Commission (FCC or Commission) to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.” Ch. 296, 52 Stat. 588, codified at 47 U. S. C. § 201(b). Of course, that rulemaking authority extends to the subsequently added portions of the Act. See AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 377–378 (1999).

E. Walston, Steven L. Hernandez, Scott L. Shapiro, and Harold Craig

Manson. John P. Elwood, Ellen Steen, Thomas J. Ward, Amy C. Chai, Karen R. Harned, Elizabeth Milito, Deborah R. White, Robin S. Conrad, and Rachel L. Brand filed a brief in both cases for the American Farm Bureau Federation et al. as amici curiae urging vacatur.

Briefs of amici curiae urging affirmance in both cases were filed for AT&T Services Inc. et al. by Michael K. Kellogg, Gregory G. Rapawy, Gary L. Phillips, and Jonathan B. Banks; for PCIA-The Wireless Infra­ structure Association by Catherine E. Stetson, Daniel L. Brenner, and Dominic F. Perella; and for T-Mobile USA, Inc., et al. by Charles S. Sims.

David B. Rivkin, Jr., Lee A. Casey, G. Edison Holland, Jr., and Karl

R. Moor filed a brief in both cases for the Southern Co. as amicus curiae.

294

Opinion of the Court

The Act imposes five substantive limitations, which are codified in 47 U. S. C. § 332(c)(7)(B); only one of them, § 332(c)(7)(B)(ii), is at issue here. That provision requires state or local governments to act on wireless-siting applica­ tions “within a reasonable period of time after the request is duly filed.” Two other features of § 332(c)(7) are relevant.

First, subparagraph (A), known as the “saving clause,” pro­ vides that nothing in the Act, except those limitations pro­ vided in § 332(c)(7)(B), “shall limit or affect the authority of a State or local government” over siting decisions. Second, § 332(c)(7)(B)(v) authorizes a person who believes a state or local government’s wireless-siting decision to be inconsistent with any of the limitations in § 332(c)(7)(B) to “commence an action in any court of competent jurisdiction.”

In theory, § 332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities. But in practice, wireless providers often faced long delays. In July 2008, CTIA-The Wireless Asso­ ciation,1 which represents wireless service providers, peti­ tioned the FCC to clarify the meaning of § 332(c)(7)(B)(ii)’s requirement that zoning authorities act on siting requests “within a reasonable period of time.” In November 2009, the Commission, relying on its broad statutory authority to implement the provisions of the Communications Act, issued a declaratory ruling responding to CTIA’s petition. In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994, 14001.

The Commission found that the “record evidence demon­ strates that unreasonable delays in the personal wireless service facility siting applications process have obstructed the provision of wireless services” and that such delays “im­ pede the promotion of advanced services and competition

1 This is not a typographical error. CTIA-The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s Web site does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

Cite as: 569 U. S. 290 (2013)

295

Opinion of the Court

that Congress deemed critical in the Telecommunications Act of 1996.” Id., at 14006, 14008. A “reasonable period of time” under § 332(c)(7)(B)(ii), the Commission determined, is presumptively (but rebuttably) 90 days to process a colloca­ tion application (that is, an application to place a new an­ tenna on an existing tower) and 150 days to process all other applications. Id., at 14005.

Some state and local governments opposed adoption of the Declaratory Ruling on the ground that the Commission lacked “authority to interpret ambiguous provisions of Sec­ tion 332(c)(7).” Id., at 14000. Specifically, they argued that the saving clause, § 332(c)(7)(A), and the judicial review pro­ vision, § 332(c)(7)(B)(v), together display a congressional in­ tent to withhold from the Commission authority to interpret the limitations in § 332(c)(7)(B). Asserting that ground of objection, the cities of Arlington and San Antonio, Texas, petitioned for review of the Declaratory Ruling in the Court of Appeals for the Fifth Circuit.

Relying on Circuit precedent, the Court of Appeals held that the Chevron framework applied to the threshold ques­ tion whether the FCC possessed statutory authority to adopt the 90- and 150-day timeframes. 668 F. 3d 229, 248 (2012) (citing Texas v. United States, 497 F. 3d 491, 501 (CA5 2007)). Applying Chevron, the Court of Appeals found “§ 332(c)(7)(A)’s effect on the FCC’s authority to administer § 332(c)(7)(B)’s limitations ambiguous,” 668 F. 3d, at 250, and held that “the FCC’s interpretation of its statutory author­ ity” was a permissible construction of the statute, id., at

254. On the merits, the court upheld the presumptive 90­

and 150-day deadlines as a “permissible construction of § 332(c)(7)(B)(ii) and (v) . . . entitled to Chevron deference.” Id., at 256.

We granted certiorari, 568 U. S. 936 (2012), limited to the first question presented: “Whether . . . a court should apply Chevron to . . . an agency’s determination of its own jurisdic­ tion.” Pet. for Cert. in No. 11–1545, p. i.

296

Opinion of the Court

As these cases turn on the scope of the doctrine enshrined in Chevron, we begin with a description of that case’s now- canonical formulation. “When a court reviews an agency’s construction of the statute which it administers, it is con­ fronted with two questions.” 467 U. S., at 842. First, applying the ordinary tools of statutory construction, the court must determine “whether Congress has directly spo­ ken to the precise question at issue. If the intent of Con­ gress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id., at 842–843. But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s an­ swer is based on a permissible construction of the statute.” Id., at 843.

Chevron is rooted in a background presumption of congres­ sional intent: namely, “that Congress, when it left ambiguity in a statute” administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740– 741 (1996). Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpreta­ tion, not by the courts but by the administering agency. See Iowa Utilities Bd., 525 U. S., at 397. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.

The question here is whether a court must defer under Chevron to an agency’s interpretation of a statutory ambigu­ ity that concerns the scope of the agency’s statutory author­

Cite as: 569 U. S. 290 (2013)

297

Opinion of the Court

ity (that is, its jurisdiction). The argument against defer­ ence rests on the premise that there exist two distinct classes of agency interpretations: Some interpretations—the big, important ones, presumably—define the agency’s “juris­ diction.” Others—humdrum, run-of-the-mill stuff—are sim­ ply applications of jurisdiction the agency plainly has. That premise is false, because the distinction between “jurisdic­ tional” and “nonjurisdictional” interpretations is a mirage.

No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it ad­ ministers is always, simply, whether the agency has stayed within the bounds of its statutory authority.

The misconception that there are, for Chevron purposes, separate “jurisdictional” questions on which no deference is due derives, perhaps, from a reflexive extension to agencies of the very real division between the jurisdictional and non- jurisdictional that is applicable to courts. In the judicial context, there is a meaningful line: Whether the court de­ cided correctly is a question that has different consequences from the question whether it had the power to decide at all.

Congress has the power (within limits) to tell the courts what classes of cases they may decide, see Trainmen v. To­ ledo, P. & W. R. Co., 321 U. S. 50, 63–64 (1944); Lauf v. E. G.

Shinner & Co., 303 U. S. 323, 330 (1938), but not to prescribe or superintend how they decide those cases, see Plaut v.

Spendthrift Farm, Inc., 514 U. S. 211, 218–219 (1995). A court’s power to decide a case is independent of whether its decision is correct, which is why even an erroneous judgment is entitled to res judicata effect. Put differently, a jurisdic­ tionally proper but substantively incorrect judicial decision is not ultra vires.

That is not so for agencies charged with administering con­ gressional statutes. Both their power to act and how they are to act are authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the

298

Opinion of the Court

question—whether framed as an incorrect application of agency authority or an assertion of authority not conferred— is always whether the agency has gone beyond what Con­ gress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as “jurisdictional.”

An example will illustrate just how illusory the proposed line between “jurisdictional” and “nonjurisdictional” agency interpretations is. Imagine the following validly-enacted

“Common Carrier Act “Section 1. The Agency shall have jurisdiction to pro­ hibit any common carrier from imposing an unreason­ able condition upon access to its facilities.”

There is no question that this provision—including the terms “common carrier” and “unreasonable condition”—defines the agency’s jurisdiction. Surely, the argument goes, a court must determine de novo the scope of that jurisdiction.

Consider, however, this alternative formulation of the

“Common Carrier Act “Section 1. No common carrier shall impose an unrea­ sonable condition upon access to its facilities.

“Section 2. The Agency may prescribe rules and reg­ ulations necessary in the public interest to effectuate Section 1 of this Act.”

Now imagine that the agency, invoking its Section 2 author­ ity, promulgates this rule: “(1) The term ‘common carrier’ in Section 1 includes Internet Service Providers.

(2) The term

‘unreasonable condition’ in Section 1 includes unreasonably high prices.

(3) A monthly fee greater than $25 is an unrea­

sonable condition on access to Internet service.” By this rule, the agency has claimed for itself jurisdiction that is dou­ bly questionable: Does its authority extend to Internet Serv­

Cite as: 569 U. S. 290 (2013)

299

Opinion of the Court

ice Providers? And does it extend to setting prices? Yet Section 2 makes clear that Congress, in petitioners’ words, “conferred interpretive power on the agency” with respect to Section 1. Brief for Petitioners in No. 11–1545, p. 14. Even under petitioners’ theory, then, a court should defer to the agency’s interpretation of the terms “common carrier” and “unreasonable condition”—that is to say, its assertion that its “jurisdiction” extends to regulating Internet Service Pro­ viders and setting prices.

In the first case, by contrast, petitioners’ theory would ac­ cord the agency no deference. The trouble with this is that in both cases, the underlying question is exactly the same: Does the statute give the agency authority to regulate In­ ternet Service Providers and cap prices, or not? 2 The real­ ity, laid bare, is that there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its “jurisdiction”) and its exceeding authorized application of authority that it un­ questionably has. “To exceed authorized application is to exceed authority. Virtually any administrative action can be characterized as either the one or the other, depending on how generally one wishes to describe the ‘authority.’ ” Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381 (1988) (Scalia, J., concurring in judgment); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 29 (1983) (“Administrative application of law is administrative formulation of law whenever it involves elaboration of the statutory norm”).

2 The dissent’s nonanswer to this example reveals the hollowness of its theory. It “might,” the dissent claims, be “harder” to interpret the first Act, because it is (somehow) less “clear” than the second Act. Post, at 326 (opinion of Roberts, C. J.). That it is even possible that the two could come out differently under the dissent’s test (whatever it is) shows that that test must be wrong. The two statutes are substantively identi­ cal. Any difference in outcome would be arbitrary, so a sound interpre­ tive approach should yield none.

300

Opinion of the Court

This point is nicely illustrated by our decision in National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U. S. 327 (2002). That case considered whether the FCC’s “jurisdiction” to regulate the rents utility-pole owners charge for “pole attachments” (defined as attachments by a cable television system or provider of telecommunications service) extended to attachments that provided both cable television and high-speed Internet access (attachments for so-called “commingled services”). Id., at 331–336. We held, sensibly, that Chevron applied. 534 U. S., at 333, 339.

Whether framed as going to the scope of the FCC’s delegated authority or the FCC’s application of its delegated author­ ity, the underlying question was the same: Did the FCC ex­ ceed the bounds of its statutory authority to regulate rents for “pole attachments” when it sought to regulate rents for pole attachments providing commingled services?

The label is an empty distraction because every new appli­ cation of a broad statutory term can be reframed as a ques­ tionable extension of the agency’s jurisdiction. One of the briefs in support of petitioners explains, helpfully, that “[j]u­ risdictional questions concern the who, what, where, and when of regulatory power: which subject matters may an agency regulate and under what conditions.” Brief for In­ ternational Municipal Lawyers Association (IMLA) Re­ spondents 18–19. But an agency’s application of its author­ ity pursuant to statutory text answers the same questions.

Who is an “outside salesman”? What is a “pole attach­ ment”? Where do the “waters of the United States” end?

When must a Medicare provider challenge a reimbursement determination in order to be entitled to an administrative appeal? These can all be reframed as questions about the scope of agencies’ regulatory jurisdiction—and they are all questions to which the Chevron framework applies. See Christopher v. SmithKline Beecham Corp., 567 U. S. 142, 147, 153 (2012); National Cable & Telecommunications Assn., supra, at 331, 333; United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 123, 131 (1985); Sebelius v. Au­

Cite as: 569 U. S. 290 (2013)

301

Opinion of the Court

burn Regional Medical Center, 568 U. S. 145, 148–149, 157– 158 (2013).

In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpreta­ tion of a statutory provision is “jurisdictional” or “nonjuris­ dictional.” Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not. See H. Edwards & L. Elliott, Federal Standards of Review 146 (2007) (“In practice, it does not appear to matter whether delegated authority is viewed as a threshold in­ quiry”). The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not en­ gaged in reasoned decisionmaking.

Fortunately, then, we have consistently held “that Chev­ ron applies to cases in which an agency adopts a construc­ tion of a jurisdictional provision of a statute it administers.” 1 R. Pierce, Administrative Law Treatise § 3.5, p. 187 (2010).

One of our opinions explicitly says that no “exception exists to the normal [deferential] standard of review” for “ ‘jurisdic­ tional or legal question[s] concerning the coverage’ ” of an Act. NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 830, n. 7 (1984). A prime example of deferential review for questions of jurisdiction is Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986). That case involved a CFTC interpretation of 7 U. S. C. § 18(c), which provides that before the Commission takes action on a complaint, the complainant must file a bond to cover “any reparation award that may be issued by the Commission against the com­ plainant on any counterclaim by respondent.” (Emphasis added.) The CFTC, pursuant to its broad rulemaking au­ thority, see § 12a(5), interpreted that oblique reference to counterclaims as granting it “the power to take jurisdiction

302

Opinion of the Court

over” not just federal-law counterclaims, but state-law coun­ terclaims as well. Schor, supra, at 844. We not only de­ ferred under Chevron to the Commission’s “eminently rea­ sonable . . . interpretation of the statute it is entrusted to administer,” but also chided the Court of Appeals for declin­ ing to afford deference because of the putatively “ ‘statutory interpretation-jurisdictional’ nature of the question at issue.” 478 U. S., at 844–845.

Similar examples abound. We have afforded Chevron def­ erence to the Commerce Department’s determination that its authority to seek antidumping duties extended to uranium imported under contracts for enrichment services, United States v. Eurodif S. A., 555 U. S. 305, 316 (2009); to the Inter­ state Commerce Commission’s view that courts, not the Commission, possessed “initial jurisdiction with respect to the award of reparations” for unreasonable shipping charges, Reiter v. Cooper, 507 U. S. 258, 269 (1993) (internal quotation marks and ellipsis omitted); and to the Army Corps of Engi­ neers’ assertion that its permitting authority over discharges into “waters of the United States” extended to “freshwater wetlands” adjacent to covered waters, Riverside Bayview Homes, supra, at 123–124, 131. We have even deferred to the FCC’s assertion that its broad regulatory authority ex­ tends to pre-empting conflicting state rules. City of New York v. FCC, 486 U. S. 57, 64 (1988); Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 700 (1984).3

3 The dissent’s reliance on dicta in Adams Fruit Co. v. Barrett, 494 U. S.

638 (1990), see post, at 319, is misplaced. In that case, the Department of Labor had interpreted a statute creating a private right of action for mi­ grant or seasonal farmworkers as providing no remedy where a state workers’-compensation law covered the worker. 494 U. S., at 649. We held that we had no need to “defer to the Secretary of Labor’s view of the scope of ” that private right of action “because Congress has expressly established the Judiciary and not the Department of Labor as the adjudica­ tor of private rights of action arising under the statute.” Ibid. Adams Fruit stands for the modest proposition that the Judiciary, not any execu­ tive agency, determines “the scope”—including the available remedies—

Cite as: 569 U. S. 290 (2013)

303

Opinion of the Court

Our cases hold that Chevron applies equally to statutes designed to curtail the scope of agency discretion. For in­ stance, in Chemical Mfrs. Assn. v. Natural Resources De­ fense Council, Inc., 470 U. S. 116, 123 (1985), we considered a statute prohibiting the Environmental Protection Agency from “ ‘modify[ing] any requirement of this section as it ap­ plies to any specific pollutant which is on the toxic pollutant list.’ ” The EPA construed the statute as not precluding it from granting variances with respect to certain toxic pollut­ ants. Finding no “clear congressional intent to forbid EPA’s sensible variance mechanism,” id., at 134, we deferred to the EPA’s construction of this express limitation on its own reg­ ulatory authority, id., at 125 (citing Chevron, 467 U. S. 837); see also, e. g., Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221, 226, 232–234 (1986).

The U. S. Reports are shot through with applications of Chevron to agencies’ constructions of the scope of their own jurisdiction. And we have applied Chevron where concerns about agency self-aggrandizement are at their apogee: in cases where an agency’s expansive construction of the extent of its own power would have wrought a fundamental change in the regulatory scheme. In FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000), the threshold question was the “appropriate framework for analyzing” the FDA’s

“of judicial power vested by” statutes establishing private rights of action.

Id., at 650. Adams Fruit explicitly affirmed the Department’s authority to promulgate the substantive standards enforced through that private right of action. See ibid.

The dissent’s invocation of Gonzales v. Oregon, 546 U. S. 243 (2006), see post, at 321, is simply perplexing: The majority opinion in that case ex­ pressly lists the Communications Act as an example of a statute under which an agency’s “authority is clear because the statute gives an agency broad power to enforce all provisions of the statute.” 546 U. S., at 258– 259 (citing 47 U. S. C. § 201(b); emphasis added). That statement cannot be squared with the dissent’s proposed remand for the Fifth Circuit to determine “whether Congress delegated interpretive authority over § 332(c)(7)(B)(ii) to the FCC.” Post, at 328.

304

Opinion of the Court

assertion of “jurisdiction to regulate tobacco products,” id., at 126, 132—a question of vast “economic and political magnitude,” id., at 133. “Because this case involves an ad­ ministrative agency’s construction of a statute that it ad­ ministers,” we held, Chevron applied. 529 U. S., at 132.

Similarly, in MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 224, 229, 231 (1994), we applied the Chevron framework to the FCC’s assertion that the statutory phrase “modify any requirement” gave it authority to eliminate rate-filing requirements, “the essen­ tial characteristic of a rate-regulated industry,” for long- distance telephone carriers.

The false dichotomy between “jurisdictional” and “nonju­ risdictional” agency interpretations may be no more than a bogeyman, but it is dangerous all the same. Like the Hound of the Baskervilles, it is conjured by those with greater quarry in sight: Make no mistake—the ultimate target here is Chevron itself. Savvy challengers of agency action would play the “jurisdictional” card in every case. See, e. g., Cellco Partnership v. FCC, 700 F. 3d 534, 541 (CADC 2012). Some judges would be deceived by the specious, but scary- sounding, “jurisdictional-nonjurisdictional” line; others tempted by the prospect of making public policy by prescrib­ ing the meaning of ambiguous statutory commands. The ef­ fect would be to transfer any number of interpretive deci­ sions—archetypal Chevron questions, about how best to construe an ambiguous term in light of competing policy in­ terests—from the agencies that administer the statutes to federal courts.4 We have cautioned that “judges ought to

4 The Chief Justice’s discomfort with the growth of agency power, see post, at 313–315, is perhaps understandable. But the dissent overstates when it claims that agencies exercise “legislative power” and “judicial power.” Post, at 312–313; see also post, at 327. The former is vested ex­ clusively in Congress, U. S. Const., Art. I, § 1, the latter in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, § 1. Agencies make rules (“Private cattle may be grazed on public lands X, Y, and Z subject to certain conditions”) and conduct adjudications (“This rancher’s grazing permit is revoked for

Cite as: 569 U. S. 290 (2013)

305

Opinion of the Court

refrain from substituting their own interstitial lawmaking” for that of an agency. Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 568 (1980). That is precisely what Chevron prevents.

One group of respondents contends that Chevron defer­ ence is inappropriate here because the FCC has “assert[ed] jurisdiction over matters of traditional state and local con­ cern.” Brief for IMLA Respondents 35. But these cases have nothing to do with federalism. Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning au­ thorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a ques­ tion of federal law. We rejected a similar faux-federalism argument in the Iowa Utilities Board case, in terms that apply equally here: “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U. S., at 379, n. 6. These lines will be drawn either by unelected fed­ eral bureaucrats, or by unelected (and even less politically accountable) federal judges. “[I]t is hard to spark a passion­ ate ‘States’ rights’ debate over that detail.” Ibid.

A few words in response to the dissent. The question on which we granted certiorari was whether “a court should apply Chevron to review an agency’s determination of its own jurisdiction.” Pet. for Cert. i.5 Perhaps sensing the

violation of the conditions”) and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.” Art. II, § 1, cl. 1.

5 The dissent—apparently with no attempt at irony—accuses us of “mis­ understand[ing]” the question presented as one of “jurisdiction.” Post, at

316. Whatever imprecision inheres in our understanding of the question

presented derives solely from our having read it.

306

Opinion of the Court

incoherence of the “jurisdictional-nonjurisdictional” line, the dissent does not even attempt to defend it, see post, at 316, but proposes a much broader scope for de novo judicial re­ view: Jurisdictional or not, and even where a rule is at issue and the statute contains a broad grant of rulemaking author­ ity, the dissent would have a court search provision by provi­ sion to determine “whether [that] delegation covers the ‘spe­ cific provision’ and ‘particular question’ before the court.” Post, at 322–323.

The dissent is correct that United States v. Mead Corp., 533 U. S. 218 (2001), requires that, for Chevron deference to apply, the agency must have received congressional author­ ity to determine the particular matter at issue in the partic­ ular manner adopted. No one disputes that. But Mead denied Chevron deference to action, by an agency with rulemaking authority, that was not rulemaking. What the dissent needs, and fails to produce, is a single case in which a general conferral of rulemaking or adjudicative au­ thority has been held insufficient to support Chevron def­ erence for an exercise of that authority within the agen­ cy’s substantive field. There is no such case, and what the dissent proposes is a massive revision of our Chevron jurisprudence.

Where we differ from the dissent is in its apparent rejec­ tion of the theorem that the whole includes all of its parts— its view that a general conferral of rulemaking authority does not validate rules for all the matters the agency is charged with administering. Rather, the dissent proposes that even when general rulemaking authority is clear, every agency rule must be subjected to a de novo judicial determi­ nation of whether the particular issue was committed to agency discretion. It offers no standards at all to guide this open-ended hunt for congressional intent (that is to say, for evidence of congressional intent more specific than the con­ ferral of general rulemaking authority). It would simply punt that question back to the Court of Appeals, presumably

Cite as: 569 U. S. 290 (2013)

307

Opinion of the Court

for application of some sort of totality-of-the-circumstances test—which is really, of course, not a test at all but an invita­ tion to make an ad hoc judgment regarding congressional intent. Thirteen Courts of Appeals applying a totality-of­ the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos. There is no need to wade into these murky waters. It suffices to decide these cases that the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communica­ tions Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exer­ cise of that authority.

* * *

Those who assert that applying Chevron to “jurisdic­ tional” interpretations “leaves the fox in charge of the hen- house” overlook the reality that a separate category of “jurisdictional” interpretations does not exist. The fox-in­ the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision- making that is accorded no deference, but by taking seri­ ously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where Congress has established a clear line, the agency cannot go beyond it; and where Con­ gress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rig­ orously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional.” If “the agency’s answer is based on a per­ missible construction of the statute,” that is the end of the matter. Chevron, 467 U. S., at 843.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

308

Opinion of Breyer, J.

Justice Breyer, concurring in part and concurring in the judgment.

I agree with the Court that normally “the question a court faces when confronted with an agency’s interpretation of a statute it administers” is, “simply, whether the agency has stayed within the bounds of its statutory authority.” Ante, at 297. In this context, “the distinction between ‘jurisdic­ tional’ and ‘nonjurisdictional’ interpretations is a mirage.” Ibid.

Deciding just what those statutory bounds are, however, is not always an easy matter, and the Court’s case law abounds with discussion of the subject. A reviewing judge, for example, will have to decide independently whether Con­ gress delegated authority to the agency to provide interpre­ tations of, or to enact rules pursuant to, the statute at issue—interpretations or rules that carry with them “the force of law.” United States v. Mead Corp., 533 U. S. 218, 229 (2001). If so, the reviewing court must give special lee­ way or “deference” to the agency’s interpretation. See id., at 227–228.

We have added that, if “[e]mploying traditional tools of statutory construction,” INS v. Cardoza-Fonseca, 480 U. S.

421, 446 (1987), the court determines that Congress has spo­ ken clearly on the disputed question, then “that is the end of the matter,” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). The agency is due no deference, for Congress has left no gap for the agency to fill. Id., at 842–844. If, on the other hand, Con­ gress has not spoken clearly, if, for example, it has written ambiguously, then that ambiguity is a sign—but not always a conclusive sign—that Congress intends a reviewing court to pay particular attention to (i. e., to give a degree of def­ erence to) the agency’s interpretation. See Gonzales v.

Oregon, 546 U. S. 243, 258–269 (2006); Mead, supra, at 229. I say that the existence of statutory ambiguity is some­ times not enough to warrant the conclusion that Congress

Cite as: 569 U. S. 290 (2013)

309

Opinion of Breyer, J.

has left a deference-warranting gap for the agency to fill be­ cause our cases make clear that other, sometimes context- specific, factors will on occasion prove relevant.

(And, given the vast number of government statutes, regulatory pro­ grams, and underlying circumstances, that variety is hardly surprising.) In Mead, for example, we looked to several fac­ tors other than simple ambiguity to help determine whether Congress left a statutory gap, thus delegating to the agency the authority to fill that gap with an interpretation that would carry “the force of law.” 533 U. S., at 229–231. Else­ where, we have assessed

“the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time.” Barnhart v. Walton, 535 U. S. 212, 222 (2002).

The subject matter of the relevant provision—for instance, its distance from the agency’s ordinary statutory duties or its falling within the scope of another agency’s authority— has also proved relevant. See Gonzales, supra, at 265–266.

See also Gellhorn & Verkuil, Controlling Chevron-Based Del­ egations, 20 Cardozo L. Rev. 989, 1007–1010 (1999).

Moreover, the statute’s text, its context, the structure of the statutory scheme, and canons of textual construction are relevant in determining whether the statute is ambiguous and can be equally helpful in determining whether such am­ biguity comes accompanied with agency authority to fill a gap with an interpretation that carries the force of law. See Household Credit Services, Inc. v. Pfennig, 541 U. S. 232, 239–242 (2004); Zuni Public School Dist. No. 89 v. Depart­ ment of Education, 550 U. S. 81, 98–99 (2007); FDA v.

Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000); Dole v. Steelworkers, 494 U. S. 26, 36 (1990). Statu­ tory purposes, including those revealed in part by legislative

310

Opinion of Breyer, J.

and regulatory history, can be similarly relevant. See Brown & Williamson Tobacco Corp., supra, at 143–147; Pen­ sion Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 649 (1990); Global Crossing Telecommunications, Inc.

v. Metrophones Telecommunications, Inc., 550 U. S. 45, 48–

49 (2007). See also AT&T Corp. v. Iowa Utilities Bd., 525

U. S. 366, 412–413 (1999) (Breyer, J., concurring in part and

dissenting in part).

Although seemingly complex in abstract description, in practice this framework has proved a workable way to ap­ proximate how Congress would likely have meant to allocate interpretive law-determining authority between reviewing court and agency. The question whether Congress has dele­ gated to an agency the authority to provide an interpretation that carries the force of law is for the judge to answer inde­ pendently. The judge, considering “traditional tools of stat­ utory construction,” Cardoza-Fonseca, supra, at 446, will ask whether Congress has spoken unambiguously. If so, the text controls. If not, the judge will ask whether Congress would have intended the agency to resolve the resulting am­ biguity. If so, deference is warranted. See Mead, supra, at 229. Even if not, however, sometimes an agency inter­ pretation, in light of the agency’s special expertise, will still have the “power to persuade, if lacking power to control,” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).

The cases before us offer an example. The relevant statu­ tory provision requires state or local governments to act on wireless siting applications “within a reasonable period of time after” a wireless service provider files such a request.

47 U. S. C. § 332(c)(7)(B)(ii). The Federal Communications Commission (FCC) argued that this provision granted it a degree of leeway in determining the amount of time that is reasonable. Many factors favor the agency’s view: (1) The language of the Telecommunications Act grants the FCC broad authority (including rulemaking authority) to adminis­ ter the Act; (2) the words are open-ended—i. e. “ambiguous”;

Cite as: 569 U. S. 290 (2013)

311

Opinion of Breyer, J.

(3) the provision concerns an interstitial administrative mat­

ter, in respect to which the agency’s expertise could have an important role to play; and (4) the matter, in context, is com­ plex, likely making the agency’s expertise useful in helping to answer the “reasonableness” question that the statute poses. See § 151 (creating the FCC); § 201(b) (providing rulemaking authority); National Cable & Telecommunica­ tions Assn. v. Brand X Internet Services, 545 U. S. 967, 980– 981 (2005) (acknowledging the FCC’s authority to administer the Act).

On the other side of the coin, petitioners point to two stat­ utory provisions which, they believe, require a different con­ clusion—namely, that the FCC lacked authority altogether to interpret § 332(c)(7)(B)(ii). First, a nearby saving clause says: “Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions re­ garding the placement, construction, and modification of per­ sonal wireless service facilities.” § 332(c)(7)(A). Second, a judicial review provision says: “Any person adversely af­ fected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsist­ ent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.” § 332(c)(7)(B)(v).

In my view, however, these two provisions cannot provide good reason for reaching the conclusion advocated by peti­ tioners. The first provision begins with an exception, stat­ ing that it does not apply to (among other things) the “rea­ sonableness” provision here at issue. The second simply sets forth a procedure for judicial review, a review that ap­ plies to most government actions. Both are consistent with a statutory scheme that gives States, localities, the FCC, and reviewing courts each some role to play in the location of wireless service facilities. And neither “expressly de­ scrib[es] an exception” to the FCC’s plenary authority to in­

312

Roberts, C. J., dissenting terpret the Act. American Hospital Assn. v. NLRB, 499

For these reasons, I would reject petitioners’ argument and conclude that § 332(c)(7)(B)(ii)—the “reasonableness” statute—leaves a gap for the FCC to fill. I would hold that the FCC’s lawful efforts to do so carry “the force of law.” Mead, 533 U. S., at 229. The Court of Appeals ultimately reached the same conclusion (though for somewhat different reasons), and the majority affirms the lower court. I conse­ quently join the majority’s judgment and such portions of its opinion as are consistent with what I have written here.

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, exec­ utive, 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 en­ forcement actions and imposing sanctions on those found to

Cite as: 569 U. S. 290 (2013)

313

Roberts, C. J., dissenting

have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.

The administrative state “wields vast power and touches almost every aspect of daily life.” Free Enterprise Fund v.

Public Company Accounting Oversight Bd., 561 U. S. 477, 499 (2010). The Framers could hardly have envisioned to­ day’s “vast and varied federal bureaucracy” and the author­ ity administrative agencies now hold over our economic, so­ cial, and political activities. Ibid. “[T]he administrative state with its reams of regulations would leave them rubbing their eyes.” Alden v. Maine, 527 U. S. 706, 807 (1999) (Sou­ ter, J., dissenting), quoted in Federal Maritime Comm’n v.

South Carolina Ports Authority, 535 U. S. 743, 755 (2002).

And the federal bureaucracy continues to grow; in the last 15 years, Congress has launched more than 50 new agencies.

Compare Office of the Federal Register, United States Gov­ ernment Manual 1997/1998, with Office of the Federal Regis­ ter, United States Government Manual 2012. And more are on the way. See, e. g., Congressional Research Service, C.

Copeland, New Entities Created Pursuant to the Patient Protection and Affordable Care Act 1 (2010) (The PPACA “creates, requires others to create, or authorizes dozens of new entities to implement the legislation”).

Although the Constitution empowers the President to keep federal officers accountable, administrative agencies enjoy in practice a significant degree of independence. As scholars have noted, “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” Kagan, Presiden­ tial 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

314

Roberts, C. J., dissenting

thought I was the president, but when it comes to these bu­ reaucrats, I can’t do a damn thing.” See R. Nathan, The Administrative Presidency 2 (1983). President Kennedy once told a constituent, “I agree with you, but I don’t know if the government will.” See id., at 1. The collection of agencies housed outside the traditional executive depart­ ments, including the Federal Communications Commission, is routinely described as the “headless fourth branch of gov­ ernment,” reflecting not only the scope of their authority but their practical independence. See, e. g., Administrative Con­ ference of United States, D. Lewis & J. Selin, Sourcebook of United States Executive Agencies 11 (2012).

As for judicial oversight, agencies enjoy broad power to construe statutory provisions over which they have been given interpretive authority. In Chevron U. S. A. Inc. v.

Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), we established a test for reviewing “an agency’s con­ struction of the statute which it administers.” Id., at 842.

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 Con­ gress 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, Con­ gress often fails to speak to “the precise question” before an agency. In the absence of such an answer, an agency’s interpretation has the full force and effect of law, unless it “exceeds the bounds of the permissible.” Barnhart v. Wal­ ton, 535 U. S. 212, 218 (2002).

Cite as: 569 U. S. 290 (2013)

315

Roberts, C. J., dissenting

It would be a bit much to describe the result as “the very definition of tyranny,” but the danger posed by the grow­ ing power of the administrative state cannot be dismissed.

See, e. g., Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. 50, 69 (2011) (Scalia, J., concurring) (noting that the FCC “has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends”); Sackett v. EPA, 566 U. S. 120, 131 (2012) (rejecting agency argument that would “enable the strongarming 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 304, n. 4. The Framers did divide governmental power in the manner the Court describes, for the purpose of safeguarding liberty. And yet . . . the citizen confront­ ing 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 constitu­ tional 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 defini­ tive answers to questions left to them by Congress, but also the same power to decide when Congress has given them that power.

Before proceeding to answer that question, however, it is necessary to sort through some confusion over what this liti­ gation is about. The source of the confusion is a familiar culprit: the concept of “jurisdiction,” which we have repeat­ edly described as a word with “ ‘many, too many, meanings.’ ”

316

Roberts, C. J., dissenting

Union Pacific R. Co. v. Locomotive Engineers, 558 U. S. 67, 81 (2009).

The Court states that the question “is whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, its jurisdiction).” Ante, at 296–

amici, and court below too often use the term “jurisdiction” imprecisely, which leads the Court to misunderstand the argu­ ment 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 ap­ plications of jurisdiction the agency plainly has.” Ante, at

297. The argument is instead that a court should not defer

to an agency on whether Congress has granted the agency interpretive authority over the statutory ambiguity at issue.

You can call that “jurisdiction” if you’d like, as petitioners do in the question presented. But given that the term is ambiguous, more is required to understand its use in that question than simply “having read it.” Ante, at 305, n. 5.

It is important to keep in mind that the term, in the present context, has the more precise meaning noted above, encom­ passing congressionally delegated authority to issue inter­ pretations 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 to do with whether the statutory provisions at issue are “big” or “small.”

“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). The rise of the modern adminis­ trative state has not changed that duty. Indeed, the Admin­

Cite as: 569 U. S. 290 (2013)

317

Roberts, C. J., dissenting

istrative Procedure Act, governing judicial review of most agency action, instructs reviewing courts to decide “all rele­ vant questions of law.” 5 U. S. C. § 706.

We do not ignore that command when we afford an agency’s statutory interpretation Chevron deference; we re­ spect it. We give binding deference to permissible agency interpretations of statutory ambiguities because Congress has delegated to the agency the authority to interpret those ambiguities “with the force of law.” United States v. Mead Corp., 533 U. S. 218, 229 (2001); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27–28 (1983) (“the court is not abdicating its constitutional duty to ‘say what the law is’ by deferring to agency interpretations of law: it is simply applying the law as ‘made’ by the author­ ized 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 del­ egated to the agency lawmaking power over the ambiguity at issue. See ante, at 310 (Breyer, J., concurring in part and concurring in judgment) (“The question whether Con­ gress 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 Con­ gress; “an agency literally has no power to act . . . unless and until Congress confers power upon it.” Louisiana Pub.

Serv. Comm’n v. FCC, 476 U. S. 355, 374 (1986). Whether Congress has conferred such power is the “relevant ques­ tion[ ] of law” that must be answered before affording Chev­ ron deference. 5 U. S. C. § 706.

Our precedents confirm this conclusion—beginning with Chevron itself. In Chevron, the Environmental Protection Agency promulgated a regulation interpreting the term

318

Roberts, C. J., dissenting

“stationary sources” in the Clean Air Act. 467 U. S., at 840 (quoting 42 U. S. C. § 7502(b)(6) (1982 ed.)). An environmen­ tal 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 up­ held the rule. Id., at 862, 866.

In our view, the challenge to the Agency’s interpretation “center[ed] on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress.” Id., at 866. Judges, we said, “are not experts in the field, and are not part of either political branch of the Government.” Id., at 865. Thus, because Congress had not answered the specific question at issue, judges had no busi­ ness providing their own resolution on the basis of their “personal policy preferences.” Ibid. Instead, the “agency to which Congress ha[d] delegated policymaking responsibil­ ities” was the appropriate political actor to resolve the com­ peting interests at stake, “within the limits of that delega­ tion.” Ibid.

Chevron’s rule of deference was based on—and limited by—this congressional delegation. And the Court did not ask simply whether Congress had delegated to the EPA the authority to administer the Clean Air Act generally. We asked whether Congress had “delegat[ed] authority to the agency to elucidate a specific provision of the statute by reg­ ulation.” Id., at 843–844 (emphasis added); see id., at 844 (discussing “the legislative delegation to an agency on a par­ ticular question” (emphasis added)). We deferred to the EPA’s interpretation of “stationary sources” based on our conclusion that the Agency had been “charged with responsi­ bility for administering the provision.” Id., at 865 (empha­ sis added).

We have never faltered in our understanding of this straightforward principle, that whether a particular agency

Cite as: 569 U. S. 290 (2013)

319

Roberts, C. J., dissenting

interpretation warrants Chevron deference turns on the court’s determination whether Congress has delegated to the agency the authority to interpret the statutory ambiguity at issue.

We made the point perhaps most clearly in Adams Fruit Co. v. Barrett, 494 U. S. 638 (1990). In that case, the Depart­ ment of Labor contended the Court should defer to its inter­ pretation 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 inten­ tionally 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 “AWPA’s language es­ tablishing a private right of action is ambiguous,” the Secre­ tary of Labor’s interpretation of its scope did not warrant Chevron deference. 494 U. S., at 649.

In language directly applicable to the question before us, we explained that “[a] precondition to deference under Chev­ ron is a congressional delegation of administrative author­ ity.” Ibid. Although “Congress clearly envisioned, indeed expressly mandated, a role for the Department of Labor in administering the statute by requiring the Secretary to pro­ mulgate standards implementing AWPA’s motor vehicle pro­ visions,” we found “[n]o such delegation regarding AWPA’s enforcement provisions.” Id., at 650 (emphasis added). It would therefore be “inappropriate,” we said, “to consult ex­ ecutive interpretations” of the enforcement provisions to re­ solve ambiguities “surrounding the scope of AWPA’s judi­ cially enforceable remedy.” Ibid. Without questioning the principle that agency determinations “within the scope of delegated authority are entitled to deference,” we explained that “it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’ ” Ibid.

(quoting Federal Maritime Comm’n v. Seatrain Lines, Inc.,

320

Roberts, C. J., dissenting

Our subsequent cases follow the same approach. In United States v. Mead Corp., 533 U. S. 218, for example, Chevron deference turned on whether Congress had dele­ gated to the agency authority to interpret the statutory am­ biguity by a particular means. The Customs Service had issued a “classification ruling,” interpreting the term “dia­ ries” in a tariff schedule to include “day planners” of the type Mead imported, and on that basis subjected the planners to a four-percent tariff. Mead protested the imposition of the tariff, the Customs Service claimed Chevron deference for its interpretation, and the controversy made its way to our Court. Id., at 224–226.

In Mead, we again made clear that the “category of in­ terpretative choices” to which Chevron deference applies is defined by congressional intent. Id., at 229. Chevron def­ erence, we said, rests on a recognition that Congress has delegated to an agency the interpretive authority to imple­ ment “a particular provision” or answer “ ‘a particular ques­ tion.’ ” Ibid. (quoting Chevron, supra, at 844). An agency’s interpretation of “a particular statutory provision” thus qualifies for Chevron deference only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated 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 au­ thority 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, “rea­ sonably suggest[ed] that Congress ever thought of [such] classification rulings as deserving the deference claimed for them.” Id., at 231. And in the absence of such a delega­ tion, we concluded the interpretations adopted in those rul­ ings were “beyond the Chevron pale.” Id., at 234.

Cite as: 569 U. S. 290 (2013)

321

Roberts, C. J., dissenting

Gonzales v. Oregon, 546 U. S. 243 (2006), is in the same line of precedent. In that case, as here, deference turned on whether a congressional delegation of interpretive authority reached a particular statutory ambiguity. The Attorney General claimed Chevron deference for his interpretation of the phrase “legitimate medical purpose” in the Controlled Substances Act (CSA) to exclude the prescribing and dis­ pensing of controlled substances for the purpose of assisting suicide. Id., at 254, 258. No one disputed that “legitimate medical purpose” was “ambiguous in the relevant sense.” Id., at 258. Nor did any Justice dispute that the Attorney General had been granted the power in the CSA to pro­ mulgate rules with the force of law. Ibid.; see id., at 281 (Scalia, J., dissenting). Nevertheless, the Court explained, “Chevron deference . . . is not accorded merely because the statute is ambiguous and an administrative official is in­ volved.” Id., at 258. The regulation advancing the inter­ pretation, we said, “must be promulgated pursuant to au­ thority Congress has delegated to the official.” Ibid. (citing Mead, supra, at 226–227).

In the CSA, Congress delegated to the Attorney General the authority to promulgate regulations “relating to the reg­ istration and control of the manufacture, distribution, and dispensing of controlled substances,” 21 U. S. C. § 821, or “for the efficient execution of his functions under [the CSA],” § 871(b). After considering the text, structure, and purpose of the Act, the Court concluded on its own that interpreting “legitimate medical purpose” fell under neither delegation.

Gonzales, 546 U. S., at 258–269. Because the regulation “was not promulgated pursuant to the Attorney General’s authority, its interpretation of ‘legitimate medical purpose’ d[id] not receive Chevron deference.” Id., at 268.

Adams Fruit, Mead, and Gonzales thus confirm that Chevron deference is based on, and finds legitimacy as, a congressional delegation of interpretive authority. An agency interpretation warrants such deference only if Con­

322

Roberts, C. J., dissenting

gress has delegated authority to definitively interpret a par­ ticular ambiguity in a particular manner. Whether Con­ gress has done so must be determined by the court on its own before Chevron can apply. See H. Edwards, L. El­ liott, & 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 au­ thority” (citing Mead, supra, at 226–227, and Gonzales, supra, at 258)); Sales & Adler, The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009

U. Ill. L. Rev. 1497, 1564 (2009) (“if delegation really is ante­

cedent 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 interpreta­ tion 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 “be­ yond the Chevron pale.” Mead, supra, 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 deference then applies, it contends, to the agency’s interpretation of any ambiguity in the Act, including ambiguity in a provision said to carve out specific provisions from the agency’s general rulemaking au­ thority. If Congress intends to exempt part of the statute from the agency’s interpretive authority, the FCC says, Con­ gress “can ordinarily be expected to state that intent explic­ itly.” Brief for Federal Respondents 30 (citing American Hospital Assn. v. NLRB, 499 U. S. 606 (1991)).

If a congressional delegation of interpretive authority is to support Chevron deference, however, that delegation must extend to the specific statutory ambiguity at issue. The ap­ propriate question is whether the delegation covers the “spe­

Cite as: 569 U. S. 290 (2013)

323

Roberts, C. J., dissenting cific provision” and “particular question” before the court.

Chevron, 467 U. S., at 844. A congressional grant of au­ thority over some portion of a statute does not necessarily mean that Congress granted the agency interpretive author­ ity over all its provisions. See Adams Fruit, 494 U. S., at 650.

An example that might highlight the point concerns stat­ utes that parcel out authority to multiple agencies, which “may be the norm, rather than an exception.” Gersen, Overlapping and Underlapping Jurisdiction in Administra­ tive Law, 2006 S. Ct. Rev. 201, 208; see, e. g., Gonzales, supra, at 250–251 (describing shared authority over the CSA be­ tween the Attorney General and the Secretary of Health and Human Services); Sutton v. United Air Lines, Inc., 527 U. S.

471, 478 (1999) (authority to issue regulations implement­ ing 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 Congressional Research Service, C. Copeland, Rule- making 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 author­ ity over the particular ambiguity at issue has been delegated to the particular agency.

By the same logic, even when Congress provides interpre­ tive 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 ex­ tends. 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

324

Roberts, C. J., dissenting

the determination whether Congress has done so is for the courts alone.

The FCC’s argument that Congress “can ordinarily be ex­ pected to state that intent explicitly,” Brief for Federal Re­ spondents 30 (citing American Hospital, supra), goes to the merits of that determination, not to whether a court should decide the question de novo or defer to the agency. Indeed, that is how the Court in American Hospital considered it.

It was in the process of “employing the traditional tools of statutory construction” that the Court said it would have expected Congress to speak more clearly if it had intended to exclude an entire subject area—employee units for collective bargaining—from the National Labor Relation Board’s gen­ eral rulemaking authority. Id., at 613, 614. The Court con­ cluded, 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 employ­ ing the traditional tools of statutory construction, we would still defer to the Board’s reasonable interpretation.” Id., at 614 (emphasis added). But that single sentence of dictum cannot carry the day for the FCC here.

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 297, 304. Draw­ ing 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 inter­ pret is not nearly so difficult. It certainly did not confuse the FCC in this proceeding. Compare In re Petition for

Cite as: 569 U. S. 290 (2013)

325

Roberts, C. J., dissenting

Declaratory Ruling, 24 FCC Rcd. 13994, 14000–14003 (2009) (addressing the latter question), with id., at 14003–14015 (ad­ dressing the former). Nor did it confound the Fifth Circuit.

Compare 668 F. 3d, at 247–254 (deciding “whether the FCC possessed statutory authority to administer § 332(c)(7) (B)(ii)”), with id., at 254–260 (considering “whether the 90- and 150-day time frames themselves also pass muster under Chevron”). More importantly, if the legitimacy of Chevron deference is based on a congressional delegation of interpretive authority, then the line is one the Court must draw.

The majority’s hypothetical Common Carrier Acts do not demonstrate anything different. Ante, at 298–299. The ma­ jority states that in its second Common Carrier Act, Section 2 makes clear that Congress “ ‘conferred interpretative power on the agency’ ” to interpret the ambiguous terms “common carrier” and “unreasonable condition.” Ante, at 299 (quot­ ing Brief for Petitioners in No. 11–1545, 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 299. But as I understand petitioners’ argu­ ment—and certainly in my own view—a court, in both cases, need only decide for itself whether Congress has dele­ gated to the agency authority to interpret the ambiguous terms, before affording the agency’s interpretation Chevron deference.

For the second Common Carrier Act, the answer is easy.

The majority’s hypothetical Congress has spoken clearly and specifically in Section 2 of the Act about its delegation of authority to interpret Section 1. As for the first Act, it is harder to analyze the question, given only one section of a presumably much larger statute. But if the first Common Carrier Act is like most agencies’ organic statutes, I have no

326

Roberts, C. J., dissenting

reason to doubt that the agency would likewise have inter­ pretive authority over the same ambiguous terms, and there­ fore be entitled to deference in construing them, just as with the second Common Carrier Act. There is no new “test” to worry about, cf. ante, at 306–307; courts would simply apply the normal rules of statutory construction.

That the question might be harder with respect to the first Common Carrier Act should come as no surprise. The sec­ ond hypothetical Congress has more carefully defined the agency’s authority than the first. Whatever standard of re­ view applies, it is more difficult to interpret an unclear stat­ ute 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 Con­ gress has delegated authority to the agency to issue those interpretations with the force of law.

The majority also expresses concern that adopting peti­ tioners’ position would undermine Chevron’s stable back­ ground rule against which Congress legislates. Ante, at 296.

That, of course, begs the question of what that stable back­ ground rule is. See Merrill & Hickman, Chevron’s Domain, 89 Geo. L. J. 833, 910 (2001) (“Courts have never deferred to agencies with respect to questions such as whether Congress has delegated to an agency the power to act with the force of law through either legislative rules or binding adjudications.

Similarly, it has never been maintained that Congress would want courts to give Chevron deference to an agency’s deter­ mination that it is entitled to Chevron deference, or should give Chevron deference to an agency’s determination of what types of interpretations are entitled to Chevron deference” (footnote omitted)).

The Court sees something nefarious behind the view that courts must decide on their own whether Congress has dele­ gated interpretative authority to an agency, before deferring to that agency’s interpretation of law. What is afoot, ac­

Cite as: 569 U. S. 290 (2013)

327

Roberts, C. J., dissenting

cording to the Court, is a judicial power grab, with nothing less than “Chevron itself ” as “the ultimate target.” Ante, at 304.

The Court touches on a legitimate concern: Chevron im­ portantly guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive. But there is another concern at play, no less firmly rooted in our constitutional structure. That is the obligation of the Judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well.

An agency’s interpretive authority, entitling the agency to judicial deference, acquires its legitimacy from a delegation of lawmaking power from Congress to the Executive. Our duty to police the boundary between the Legislature and the Executive is as critical as our duty to respect that between the Judiciary and the Executive. See Zivotofsky v. Clinton, 566 U. S. 189, 196–198 (2012). In the present context, that means ensuring that the Legislative Branch has in fact dele­ gated 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 mat­ ter, 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 administra­ tive agencies.

We reconcile our competing responsibilities in this area by ensuring judicial deference to agency interpretations under Chevron—but only after we have determined on our own that Congress has given interpretive authority to the agency.

Our “task is to fix the boundaries of delegated authority,” Monaghan, 83 Colum. L. Rev., at 27; that is not a task we can delegate to the agency. We do not leave it to the agency to decide when it is in charge.

328

Roberts, C. J., dissenting * * *

In these cases, the FCC issued a declaratory ruling inter­ preting the term “reasonable period of time” in 47 U. S. C. § 332(c)(7)(B)(ii). The Fifth Circuit correctly recognized that it could not apply Chevron deference to the FCC’s inter­ pretation unless the agency “possessed statutory authority to administer § 332(c)(7)(B)(ii),” but it erred by granting Chevron deference to the FCC’s view on that antecedent question. See 668 F. 3d, at 248. Because the court should have determined on its own whether Congress delegated in­ terpretive authority over § 332(c)(7)(B)(ii) to the FCC before affording Chevron deference, I would vacate the decision below and remand the cases to the Fifth Circuit to perform the proper inquiry in the first instance.

I respectfully dissent.