city of arlington, tex. v. f.c.c. 1863city of arlington, tex. v. f.c.c. 1865 cite as 133 s.ct. 1863...

1863CITY OF ARLINGTON, TEX. v. F.C.C.Cite as 133 S.Ct. 1863 (2013)

CITY OF ARLINGTON, TEXAS,et al., Petitioners

v.

FEDERAL COMMUNICATIONSCOMMISSION et al.

Cable, Telecommunications, and Tech-nology Committee of the New Or-

leans City Council, Petitioner

v.

Federal CommunicationsCommission et al.

Nos. 11–1545, 11–1547.

Argued Jan. 16, 2013.

Decided May 20, 2013.

Background: Two cities petitioned for re-view of declaratory ruling of the FederalCommunications Commission (FCC) estab-lishing reasonable time frames under theTelecommunications Act for a state or lo-cality to act on wireless facility siting ap-plications. The United States Court of Ap-peals for the Fifth Circuit, Owen, CircuitJudge, 668 F.3d 229, denied the petitionsin part and dismissed the petitions in part.Certiorari was granted in part.

Holdings: The Supreme Court, JusticeScalia, held that:

(1) a court must defer under Chevron toan agency’s interpretation of a statuto-ry ambiguity that concerns the scopeof the agency’s jurisdiction, and

(2) Chevron deference applied to FCC de-claratory ruling.

Affirmed.

Justice Breyer filed an opinion concurringin part and concurring in judgment.

Chief Justice Roberts filed a dissentingopinion in which Justices Kennedy andAlito joined.

1. Administrative Law and ProcedureO432, 433

When a court reviews an agency’sconstruction of the statute which it admin-isters, it is confronted with two questions:first, applying ordinary tools of statutoryconstruction, court must determine wheth-er Congress has directly spoken to precisequestion at issue, and if intent of Congressis clear, that is the end of the matter, forcourt, as well as agency, must give effectto unambiguously expressed intent of Con-gress; but if statute is silent or ambiguouswith respect to specific issue, question forcourt is whether agency’s answer is basedon a permissible construction of statute.

2. Administrative Law and ProcedureO432

Under Chevron doctrine, statutoryambiguities will be resolved, within boundsof reasonable interpretation, not by courtsbut by administering agency.

3. Administrative Law and ProcedureO431, 432

A court must defer under Chevron toan agency’s interpretation of a statutoryambiguity that concerns scope of agency’sstatutory authority, that is, its jurisdiction;no matter how it is framed, question acourt faces when confronted with an agen-cy’s interpretation of a statute it adminis-ters is always, simply, whether agency hasstayed within bounds of its statutory au-thority.

4. Federal Courts O1.1Congress has the power, within limits,

to tell courts what classes of cases theymay decide, but not to prescribe or supe-rintend how they decide those cases.

5. Courts O1 Judgment O576(1)

A court’s power to decide a case isindependent of whether its decision is cor-rect, which is why even an erroneous judg-

1864 133 SUPREME COURT REPORTER

ment is entitled to res judicata effect; putdifferently, a jurisdictionally proper butsubstantively incorrect judicial decision isnot ultra vires.

6. Administrative Law and ProcedureO438(26)

Telecommunications O1055Chevron deference applied to Federal

Communications Commission’s (FCC) de-claratory ruling establishing reasonabletime frames under TelecommunicationsAct for state or locality to act on wirelessfacility siting applications, where Congresshad unambiguously vested the FCC withgeneral authority to administer the Actthrough rulemaking and adjudication, andthe agency interpretation at issue was pro-mulgated in the exercise of that authority.Telecommunications Act of 1996, 47U.S.C.A. § 332(c)(7)(B)(ii).

Syllabus *

The Communications Act of 1934, asamended, requires state or local govern-ments to act on siting applications forwireless facilities ‘‘within a reasonable pe-riod of time after the request is duly filed.’’47 U.S.C. § 332(c)(7)(B)(ii). Relying on itsbroad authority to implement the Commu-nications Act, see 47 U.S.C. § 201(b), theFederal Communications Commission(FCC) issued a Declaratory Ruling con-cluding that the phrase ‘‘reasonable periodof time’’ is presumptively (but rebuttably)90 days to process an application to place anew antenna on an existing tower and 150days to process all other applications. Thecities of Arlington and San Antonio, Texas,sought review of the Declaratory Ruling inthe Fifth Circuit. They argued that theCommission lacked authority to interpret§ 332(c)(7)(B)’s limitations. The Court ofAppeals, relying on Circuit precedent hold-

ing that Chevron U.S.A. Inc. v. NaturalResources Defense Council, Inc., 467 U.S.837, 104 S.Ct. 2778, 81 L.Ed.2d 694, ap-plies to an agency’s interpretation of itsown statutory jurisdiction, applied Chevronto that question. Finding the statute am-biguous, it upheld as a permissible con-struction of the statute the FCC’s viewthat § 201(b)’s broad grant of regulatoryauthority empowered it to administer§ 332(c)(7)(B).

Held : Courts must apply the Chev-ron framework to an agency’s interpreta-tion of a statutory ambiguity that concernsthe scope of the agency’s statutory author-ity (i.e., its jurisdiction). Pp. 1867 – 1875.

(a) Under Chevron, a reviewing courtmust first ask whether Congress has di-rectly spoken to the precise question atissue; if so, the court must give effect toCongress’ unambiguously expressed in-tent. 467 U.S., at 842–843, 104 S.Ct. 2778.However, if ‘‘the statute is silent or ambig-uous,’’ the court must defer to the adminis-tering agency’s construction of the statuteso long as it is permissible. Id., at 843,104 S.Ct. 2778. Pp. 1867 – 1868.

(b) When a court reviews an agency’sinterpretation of a statute it administers,the question is always, simply, whether theagency has stayed within the bounds of itsstatutory authority. There is no distinc-tion between an agency’s ‘‘jurisdictional’’and ‘‘nonjurisdictional’’ interpretations.The ‘‘jurisdictional-nonjurisdictional’’ lineis meaningful in the judicial context be-cause Congress has the power to tell thecourts what classes of cases they may de-cide—that is, to define their jurisdiction—but not to prescribe how they decide thosecases. But for agencies charged with ad-ministering congressional statutes, both

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


their power to act and how they are to actis authoritatively prescribed by Congress,so that when they act improperly, no lessthan when they act beyond their jurisdic-tion, what they do is ultra vires. Becausethe question is always whether the agencyhas gone beyond what Congress has per-mitted it to do, there is no principled basisfor carving out an arbitrary subset of ‘‘ju-risdictional’’ questions from the Chevronframework. See, e.g., National Cable &Telecommunications Assn., Inc. v. GulfPower Co., 534 U.S. 327, 333, 339, 122S.Ct. 782, 151 L.Ed.2d 794. Pp. 1868 –1871.

(c) This Court has consistently afford-ed Chevron deference to agencies’ con-structions of the scope of their own juris-diction. See, e.g., Commodity FuturesTrading Commission v. Schor, 478 U.S.833, 106 S.Ct. 3245, 92 L.Ed.2d 675; Unit-ed States v. Eurodif S. A., 555 U.S. 305,316, 129 S.Ct. 878, 172 L.Ed.2d 679. Chev-ron applies to statutes designed to curtailthe scope of agency discretion, see Chemi-cal Mfrs. Assn. v. Natural Resources De-fense Council, Inc., 470 U.S. 116, 123, 105S.Ct. 1102, 84 L.Ed.2d 90, and even whereconcerns about agency self-aggrandize-ment are at their apogee—i.e., where anagency’s expansive construction of the ex-tent of its own power would have wroughta fundamental change in the regulatoryscheme, see FDA v. Brown & WilliamsonTobacco Corp., 529 U.S. 120, 132, 120 S.Ct.1291, 146 L.Ed.2d 121. Pp. 1871 – 1873.

(d) The contention that Chevron def-erence is not appropriate here because theFCC asserted jurisdiction over matters oftraditional state and local concern is merit-less. These cases have nothing to do withfederalism: The statute explicitly sup-plants state authority, so the question issimply whether a federal agency or federalcourts will draw the lines to which theStates must hew. P. 1873.

(e) United States v. Mead Corp., 533U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292,requires that, for Chevron deference toapply, the agency must have received con-gressional authority to determine the par-ticular matter at issue in the particularmanner adopted. But Mead denied Chev-ron deference to action, by an agency withrulemaking authority, that was not rule-making. There is no case in which a gen-eral conferral of rulemaking or adjudica-tive authority has been held insufficient tosupport Chevron deference for an exerciseof that authority within the agency’s sub-stantive field. A general conferral of rule-making authority validates rules for all thematters the agency is charged with admin-istering. It suffices to decide this casethat the preconditions to deference underChevron are satisfied because Congresshas unambiguously vested the FCC withgeneral authority to administer the Com-munications Act through rulemaking andadjudication, and the agency interpretationat issue was promulgated in the exercise ofthat authority. Pp. 1873 – 1874.

668 F.3d 229, affirmed.

SCALIA, J., delivered the opinion ofthe Court, in which THOMAS,GINSBURG, SOTOMAYOR, and KAGAN,JJ., joined. BREYER, J., filed an opinionconcurring in part and concurring in thejudgment. ROBERTS, C.J., filed adissenting opinion, in which KENNEDYand ALITO, JJ., joined.

Thomas C. Goldstein, for Petitioners.

Donald B. Verrilli, Jr., Solicitor General,for Respondents.

Paul D. Clement, Michael H. McGinley,Bancroft PLLC, Washington, DC, for Re-spondents in support of Petitioners.

Thomas C. Goldstein, Kevin K. Russell,Kevin R. Amer, Tejinder Singh, Goldstein& Russell, P.C., Washington, DC, Thomas


D. Bunton, Senior Deputy, County Coun-sel, San Diego, CA, for Petitioner Countyof San Diego, California.

Joseph Van Eaton, James R. Hobson,Matthew K. Schettenhelm, Best Best &Krieger, LLP, Washington, DC, for Peti-tioners City of Arlington, Texas; City ofDallas, Texas; City of Los Angeles, Cali-fornia; County of Los Angeles, California;City of San Antonio, Texas; and TexasCoalition of Cities for Utility Issues.

William D. Aaron, Jr., DeWayne L.Williams, Aaron, PLC, New Orleans, LA,Basile J. Uddo, Jerry A. Beatmann, Jr.,Uddo, Beatmann & Code, LLC, Metairie,LA, for Petitioner Cable, Telecommunica-tions, and Technology Committee of theNew Orleans City Council.

Sean A. Lev, General Counsel, PeterKaranjia, Deputy General Counsel, JacobM. Lewis, Associate General Counsel,James M. Carr, Matthew J. Dunne, Coun-sel, Federal Communications Commission,Washington, DC, Donald B. Verrilli, Jr.,Solicitor General, Counsel of Record, Mal-colm L. Stewart, Deputy Solicitor General,Joseph R. Palmore, Assistant to the Solici-tor General, Department of Justice, Wash-ington, DC, for Federal Respondents.

For U.S. Supreme Court briefs, see:

2013 WL 122630 (Reply.Brief)


2012 WL 6624224 (Resp.Brief)

2012 WL 6219895 (Resp.Brief)

2012 WL 5884815 (Pet.Brief)

2012 WL 5884820 (Resp.Brief)


Justice SCALIA delivered the opinion ofthe Court.

We consider whether an agency’s inter-pretation of a statutory ambiguity thatconcerns 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, 104 S.Ct. 2778, 81 L.Ed.2d694 (1984).

I

Wireless telecommunications networksrequire towers and antennas; proposedsites for those towers and antennas mustbe approved by local zoning authorities.In the Telecommunications Act of 1996,Congress ‘‘impose[d] specific limitations onthe traditional authority of state and localgovernments to regulate the location, con-struction, and modification of such facili-ties,’’ Rancho Palos Verdes v. Abrams, 544U.S. 113, 115, 125 S.Ct. 1453, 161 L.Ed.2d316 (2005), and incorporated those limita-tions into the Communications Act of 1934,see 110 Stat. 56, 151. Section 201(b) ofthat Act empowers the Federal Communi-cations Commission to ‘‘prescribe suchrules and regulations as may be necessaryin the public interest to carry out [its]provisions.’’ Ch. 296, 52 Stat. 588, codifiedat 47 U.S.C. § 201(b). Of course, thatrulemaking authority extends to the subse-quently added portions of the Act. SeeAT & T Corp. v. Iowa Utilities Bd., 525U.S. 366, 377–378, 119 S.Ct. 721, 142L.Ed.2d 835 (1999).

The Act imposes five substantive limita-tions, 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. Thatprovision requires state or local govern-ments to act on wireless siting applications‘‘within a reasonable period of time afterthe request is duly filed.’’ Two other fea-tures of § 332(c)(7) are relevant. First,subparagraph (A), known as the ‘‘savingclause,’’ provides that nothing in the Act,except those limitations provided in§ 332(c)(7)(B), ‘‘shall limit or affect theauthority of a State or local government’’over siting decisions. Second,


§ 332(c)(7)(B)(v) authorizes a person whobelieves a state or local government’s wire-less-siting decision to be inconsistent withany of the limitations in § 332(c)(7)(B) to‘‘commence an action in any court of com-petent jurisdiction.’’

In theory, § 332(c)(7)(B)(ii) requiresstate and local zoning authorities to takeprompt action on siting applications forwireless facilities. But in practice, wire-less providers often faced long delays. InJuly 2008, CTIA—The Wireless Associa-tion,1 which represents wireless serviceproviders, petitioned the FCC to clarifythe meaning of § 332(c)(7)(B)(ii)’s require-ment that zoning authorities act on sitingrequests ‘‘within a reasonable period oftime.’’ In November 2009, the Commis-sion, relying on its broad statutory author-ity to implement the provisions of theCommunications Act, issued a declaratoryruling responding to CTIA’s petition. Inre Petition for Declaratory Ruling, 24FCC Rcd. 13994, 14001. The Commissionfound that the ‘‘record evidence demon-strates that unreasonable delays in thepersonal wireless service facility sitingprocess have obstructed the provision ofwireless services’’ and that such delays‘‘impede the promotion of advanced ser-vices and competition that Congressdeemed critical in the TelecommunicationsAct of 1996.’’ Id., at 14006, 14008. A‘‘reasonable period of time’’ under§ 332(c)(7)(B)(ii), the Commission deter-mined, is presumptively (but rebuttably)90 days to process a collocation application(that is, an application to place a newantenna on an existing tower) and 150days to process all other applications. Id.,at 14005.

Some state and local governments op-posed adoption of the Declaratory Rulingon the ground that the Commission lacked‘‘authority to interpret ambiguous provi-sions of Section 332(c)(7).’’ Id., at 14000.Specifically, they argued that the savingclause, § 332(c)(7)(A), and the judicial re-view provision, § 337(c)(7)(B)(v), togetherdisplay a congressional intent to withholdfrom the Commission authority to inter-pret the limitations in § 332(c)(7)(B). As-serting that ground of objection, the citiesof Arlington and San Antonio, Texas, peti-tioned for review of the Declaratory Rul-ing in the Court of Appeals for the FifthCircuit.

Relying on Circuit precedent, the Courtof Appeals held that the Chevron frame-work applied to the threshold questionwhether the FCC possessed statutory au-thority to adopt the 90– and 150–day time-frames. 668 F.3d 229, 248 (C.A.5 2012)(citing Texas v. United States, 497 F.3d491, 501 (C.A.5 2007)). Applying Chevron,the Court of Appeals found‘‘§ 332(c)(7)(A)’s effect on the FCC’s au-thority to administer § 332(c)(7)(B)’s limi-tations ambiguous,’’ 668 F.3d, at 250, andheld that ‘‘the FCC’s interpretation of itsstatutory authority’’ was a permissible con-struction of the statute. Id., at 254. Onthe merits, the court upheld the presump-tive 90– and 150–day deadlines as a ‘‘per-missible construction of § 332(c)(7)(B)(ii)and (v) TTT entitled to Chevron deference.’’Id., at 256.

We granted certiorari, 568 U.S. ––––,133 S.Ct. 524, 184 L.Ed.2d 252 (2012),limited to the first question presented:‘‘Whether TTT a court should apply Chev-ron to TTT an agency’s determination of its

1. This is not a typographical error. CTIA—The Wireless Association was the name of thepetitioner. CTIA is presumably an (unpro-nounceable) acronym, but even the organiza-

tion’s website does not say what it stands for.That secret, known only to wireless-service-provider insiders, we will not disclose here.


own jurisdiction.’’ Pet. for Cert. in No.11–1545, p. i.

II

A

[1] As this case turns on the scope ofthe doctrine enshrined in Chevron, we be-gin with a description of that case’s now-canonical formulation. ‘‘When a court re-views an agency’s construction of the stat-ute which it administers, it is confrontedwith two questions.’’ 467 U.S., at 842, 104S.Ct. 2778. First, applying the ordinarytools of statutory construction, the courtmust determine ‘‘whether Congress hasdirectly spoken to the precise question atissue. If the intent of Congress is clear,that is the end of the matter; for thecourt, as well as the agency, must giveeffect to the unambiguously expressed in-tent of Congress.’’ Id., at 842–843, 104S.Ct. 2778. But ‘‘if the statute is silent orambiguous with respect to the specific is-sue, the question for the court is whetherthe agency’s answer is based on a permis-sible construction of the statute.’’ Id., at843, 104 S.Ct. 2778.

[2] Chevron is rooted in a backgroundpresumption of congressional intent:namely, ‘‘that Congress, when it left ambi-guity in a statute’’ administered by anagency, ‘‘understood that the ambiguitywould be resolved, first and foremost, bythe agency, and desired the agency (ratherthan the courts) to possess whatever de-gree of discretion the ambiguity allows.’’Smiley v. Citibank (South Dakota), N. A.,517 U.S. 735, 740–741, 116 S.Ct. 1730, 135L.Ed.2d 25 (1996). Chevron thus providesa stable background rule against whichCongress can legislate: Statutory ambigui-ties will be resolved, within the bounds ofreasonable interpretation, not by thecourts but by the administering agency.See Iowa Utilities Bd., 525 U.S., at 397,

119 S.Ct. 721. Congress knows to speakin plain terms when it wishes to circum-scribe, and in capacious terms when itwishes to enlarge, agency discretion.

B

[3] The question here is whether acourt must defer under Chevron to anagency’s interpretation of a statutory am-biguity that concerns the scope of theagency’s statutory authority (that is, itsjurisdiction). The argument against defer-ence rests on the premise that there existtwo distinct classes of agency interpreta-tions: Some interpretations—the big, im-portant ones, presumably—define theagency’s ‘‘jurisdiction.’’ Others—humd-rum, run-of-the-mill stuff—are simply ap-plications of jurisdiction the agency plainlyhas. That premise is false, because thedistinction between ‘‘jurisdictional’’ and‘‘nonjurisdictional’’ interpretations is a mi-rage. No matter how it is framed, thequestion a court faces when confrontedwith an agency’s interpretation of a statuteit administers is always, simply, whetherthe agency has stayed within the boundsof its statutory authority.

[4, 5] The misconception that thereare, for Chevron purposes, separate ‘‘juris-dictional’’ questions on which no deferenceis due derives, perhaps, from a reflexiveextension to agencies of the very real divi-sion between the jurisdictional and nonju-risdictional that is applicable to courts. Inthe judicial context, there is a meaningfulline: Whether the court decided correctlyis a question that has different conse-quences from the question whether it hadthe power to decide at all. Congress hasthe power (within limits) to tell the courtswhat classes of cases they may decide, seeTrainmen v. Toledo, P. & W.R. Co., 321U.S. 50, 63–64, 64 S.Ct. 413, 88 L.Ed. 534(1944); Lauf v. E.G. Shinner & Co., 303U.S. 323, 330, 58 S.Ct. 578, 82 L.Ed. 872


(1938), but not to prescribe or superintendhow they decide those cases, see Plaut v.Spendthrift Farm, Inc., 514 U.S. 211, 218–219, 115 S.Ct. 1447, 131 L.Ed.2d 328(1995). A court’s power to decide a case isindependent of whether its decision is cor-rect, which is why even an erroneous judg-ment is entitled to res judicata effect. Putdifferently, a jurisdictionally proper butsubstantively incorrect judicial decision isnot ultra vires.

That is not so for agencies charged withadministering congressional statutes.Both their power to act and how they areto act is authoritatively prescribed by Con-gress, so that when they act improperly,no less than when they act beyond theirjurisdiction, what they do is ultra vires.Because the question—whether framed asan incorrect application of agency authori-ty or an assertion of authority not con-ferred—is always whether the agency hasgone beyond what Congress has permittedit to do, there is no principled basis forcarving out some arbitrary subset of suchclaims as ‘‘jurisdictional.’’

An example will illustrate just how illu-sory the proposed line between ‘‘jurisdic-tional’’ and ‘‘nonjurisdictional’’ agency in-terpretations is. Imagine the followingvalidly-enacted statute:

COMMON CARRIER ACT

SECTION 1. The Agency shall have ju-risdiction to prohibit any common carri-er from imposing an unreasonable condi-tion upon access to its facilities.

There is no question that this provision—including the terms ‘‘common carrier’’ and‘‘unreasonable condition’’—defines theAgency’s jurisdiction. Surely, the argu-ment goes, a court must determine de novothe scope of that jurisdiction.

Consider, however, this alternative for-mulation of the statute:

COMMON CARRIER ACT

SECTION 1. No common carrier shallimpose an unreasonable condition uponaccess to its facilities.

SECTION 2. The Agency may prescriberules and regulations necessary in thepublic interest to effectuate Section 1 ofthis Act.

Now imagine that the Agency, invoking itsSection 2 authority, promulgates this Rule:‘‘(1) The term ‘common carrier’ in Section1 includes Internet Service Providers. (2)The term ‘unreasonable condition’ in Sec-tion 1 includes unreasonably high prices.(3) A monthly fee greater than $25 is anunreasonable condition on access to Inter-net service.’’ By this Rule, the Agencyhas claimed for itself jurisdiction that isdoubly questionable: Does its authorityextend to Internet Service Providers?And does it extend to setting prices? YetSection 2 makes clear that Congress, inpetitioners’ words, ‘‘conferred interpretivepower on the agency’’ with respect to Sec-tion 1. Brief for Petitioners in No. 1545,p. 14. Even under petitioners’ theory,then, a court should defer to the Agency’sinterpretation of the terms ‘‘common carri-er’’ and ‘‘unreasonable condition’’—that isto say, its assertion that its ‘‘jurisdiction’’extends to regulating Internet ServiceProviders and setting prices.

In the first case, by contrast, petition-ers’ theory would accord the agency nodeference. The trouble with this is that inboth cases, the underlying question is ex-actly the same : Does the statute give theagency authority to regulate Internet Ser-vice Providers and cap prices, or not? 2

2. The dissent’s non-answer to this examplereveals the hollowness of its theory. It‘‘might,’’ the dissent claims, be ‘‘harder’’ tointerpret the first Act, because it is (somehow)

less ‘‘clear’’ than the second Act. Post, at1873 – 1874 (opinion of ROBERTS, C.J.).That it is even possible that the two couldcome out differently under the dissent’s test


The reality, laid bare, is that there is nodifference, insofar as the validity of agencyaction is concerned, between an agency’sexceeding the scope of its authority (its‘‘jurisdiction’’) and its exceeding authorizedapplication of authority that it unquestion-ably has. ‘‘To exceed authorized applica-tion is to exceed authority. Virtually anyadministrative action can be characterizedas either the one or the other, dependingon how generally one wishes to describethe ‘authority.’ ’’ Mississippi Power &Light Co. v. Mississippi ex rel. Moore, 487U.S. 354, 381, 108 S.Ct. 2428, 101 L.Ed.2d322 (1988) (SCALIA, J., concurring injudgment); see also Monaghan, Marburyand the Administrative State, 83 Colum. L.Rev. 1, 29 (1983) (‘‘Administrative applica-tion of law is administrative formulation oflaw whenever it involves elaboration of thestatutory norm.’’).

This point is nicely illustrated by ourdecision in National Cable & Telecommu-nications Assn., Inc. v. Gulf Power Co.,534 U.S. 327, 122 S.Ct. 782, 151 L.Ed.2d794 (2002). That case considered whetherthe FCC’s ‘‘jurisdiction’’ to regulate therents utility-pole owners charge for ‘‘poleattachments’’ (defined as attachments bya cable television system or provider oftelecommunications service) extended toattachments that provided both cable tele-vision and high-speed Internet access (at-tachments for so-called ‘‘commingled ser-vices’’). Id., at 331–336, 122 S.Ct. 782.We held, sensibly, that Chevron applied.534 U.S., at 333, 339, 122 S.Ct. 782.Whether framed as going to the scope ofthe FCC’s delegated authority or theFCC’s application of its delegated author-ity, the underlying question was the same:Did the FCC exceed the bounds of itsstatutory authority to regulate rents for

‘‘pole attachments’’ when it sought to reg-ulate rents for pole attachments providingcommingled services?

The label is an empty distraction be-cause every new application of a broadstatutory term can be reframed as aquestionable extension of the agency’s ju-risdiction. One of the briefs in support ofpetitioners explains, helpfully, that ‘‘[j]u-risdictional questions concern the who,what, where, and when of regulatory pow-er: which subject matters may an agencyregulate and under what conditions.’’Brief for IMLA Respondents 18–19. Butan agency’s application of its authoritypursuant to statutory text answers thesame questions. Who is an ‘‘outsidesalesman’’? What is a ‘‘pole attachment’’?Where do the ‘‘waters of the UnitedStates’’ end? When must a Medicareprovider challenge a reimbursement de-termination in order to be entitled to anadministrative appeal? These can all bereframed as questions about the scope ofagencies’ regulatory jurisdiction—andthey are all questions to which the Chev-ron framework applies. See Christopherv. SmithKline Beecham Corp., 567 U.S.––––, ––––, ––––, 132 S.Ct. 2156, 2162,2165, 183 L.Ed.2d 153 (2012); NationalCable & Telecommunications Assn., su-pra, at 331, 333, 122 S.Ct. 782; UnitedStates v. Riverside Bayview Homes, Inc.,474 U.S. 121, 123, 131, 106 S.Ct. 455, 88L.Ed.2d 419 (1985); Sebelius v. AuburnRegional Medical Center, 568 U.S. ––––,––––, ––––, 133 S.Ct. 817, 821, 826–827,184 L.Ed.2d 627 (2013).

In sum, judges should not waste theirtime in the mental acrobatics needed todecide whether an agency’s interpretationof a statutory provision is ‘‘jurisdictional’’or ‘‘nonjurisdictional.’’ Once those labels

(whatever it is) shows that that test must bewrong. The two statutes are substantivelyidentical. Any difference in outcome would

be arbitrary, so a sound interpretive approachshould yield none.


are sheared away, it becomes clear thatthe question in every case is, simply,whether the statutory text forecloses theagency’s assertion of authority, or not.See H. Edwards & L. Elliott, FederalStandards of Review 146 (2007) (‘‘In prac-tice, it does not appear to matter whetherdelegated authority is viewed as a thresh-old inquiry.’’). The federal judge as harus-pex, sifting the entrails of vast statutoryschemes to divine whether a particularagency interpretation qualifies as ‘‘jurisdic-tional,’’ is not engaged in reasoned deci-sionmaking.

C

Fortunately, then, we have consistentlyheld ‘‘that Chevron applies to cases inwhich an agency adopts a construction of ajurisdictional provision of a statute it ad-ministers.’’ 1 R. Pierce, AdministrativeLaw Treatise § 3.5, p. 187 (2010). One ofour opinions explicitly says that no ‘‘excep-tion exists to the normal [deferential] stan-dard of review’’ for ‘‘ ‘jurisdictional or legalquestion[s] concerning the coverage’ ’’ ofan Act. NLRB v. City Disposal Systems,Inc., 465 U.S. 822, 830, n. 7, 104 S.Ct. 1505,79 L.Ed.2d 839 (1984). A prime exampleof deferential review for questions of juris-diction is Commodity Futures TradingComm’n v. Schor, 478 U.S. 833, 106 S.Ct.3245, 92 L.Ed.2d 675 (1986). That caseinvolved a CFTC interpretation of 7 U.S.C.§ 18(c), which provides that before theCommission takes action on a complaint,the complainant must file a bond to cover‘‘any reparation award that may be issuedby the Commission against the complain-ant on any counterclaim by respondent.’’(Emphasis added.) The CFTC, pursuantto its broad rulemaking authority, see§ 12a(5), interpreted that oblique refer-

ence to counterclaims as granting it ‘‘thepower to take jurisdiction over’’ not justfederal-law counterclaims, but state-lawcounterclaims as well. Schor, supra, at844, 106 S.Ct. 3245. We not only deferredunder Chevron to the Commission’s ‘‘emi-nently reasonable TTT interpretation of thestatute it is entrusted to administer,’’ butalso chided the Court of Appeals for de-clining to afford deference because of theputatively ‘‘ ‘statutory interpretation-juris-dictional’ nature of the question at issue.’’478 U.S., at 844–845, 106 S.Ct. 3245.

Similar examples abound. We have af-forded Chevron deference to the Com-merce Department’s determination that itsauthority to seek antidumping duties ex-tended to uranium imported under con-tracts for enrichment services, UnitedStates v. Eurodif S. A., 555 U.S. 305, 316,129 S.Ct. 878, 172 L.Ed.2d 679 (2009); tothe Interstate Commerce Commission’sview that courts, not the Commission, pos-sessed ‘‘initial jurisdiction with respect tothe award of reparations’’ for unreasonableshipping charges, Reiter v. Cooper, 507U.S. 258, 269, 113 S.Ct. 1213, 122 L.Ed.2d604 (1993) (internal quotation marks andellipsis omitted); and to the Army Corpsof Engineers’ assertion that its permittingauthority over discharges into ‘‘waters ofthe United States’’ extended to ‘‘freshwa-ter wetlands’’ adjacent to covered waters,Riverside Bayview Homes, supra, at 123–124, 131, 106 S.Ct. 455. We have evendeferred to the FCC’s assertion that itsbroad regulatory authority extends to pre-empting conflicting state rules. City ofNew York v. FCC, 486 U.S. 57, 64, 108S.Ct. 1637, 100 L.Ed.2d 48 (1988); CapitalCities Cable, Inc. v. Crisp, 467 U.S. 691,700, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984).3

3. The dissent’s reliance on dicta in AdamsFruit Co. v. Barrett, 494 U.S. 638, 110 S.Ct.1384, 108 L.Ed.2d 585 (1990), see post, at

1881 – 1882, is misplaced. In that case, theDepartment of Labor had interpreted a stat-ute creating a private right of action for mi-


Our cases hold that Chevron appliesequally to statutes designed to curtail thescope of agency discretion. For instance,in Chemical Mfrs. Assn. v. Natural Re-sources Defense Council, Inc., 470 U.S.116, 123, 105 S.Ct. 1102, 84 L.Ed.2d 90(1985), we considered a statute prohibitingthe Environmental Protection Agencyfrom ‘‘modify[ing] any requirement of thissection as it applies to any specific pollu-tant which is on the toxic pollutant list.’’The EPA construed the statute as notprecluding it from granting variances withrespect to certain toxic pollutants. Find-ing no ‘‘clear congressional intent to forbidEPA’s sensible variance mechanism,’’ id.,at 134, 105 S.Ct. 1102, we deferred to theEPA’s construction of this express limita-tion on its own regulatory authority, id., at125, 105 S.Ct. 1102 (citing Chevron, 467U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694);see also, e.g., Japan Whaling Assn. v.American Cetacean Soc., 478 U.S. 221,226, 232–234, 106 S.Ct. 2860, 92 L.Ed.2d166 (1986).

The U.S. Reports are shot through withapplications of Chevron to agencies’ con-structions of the scope of their own juris-diction. And we have applied Chevronwhere concerns about agency self-aggran-dizement are at their apogee: in cases

where an agency’s expansive constructionof the extent of its own power would havewrought a fundamental change in the reg-ulatory scheme. In FDA v. Brown & Wil-liamson Tobacco Corp., 529 U.S. 120, 120S.Ct. 1291, 146 L.Ed.2d 121 (2000), thethreshold question was the ‘‘appropriateframework for analyzing’’ the FDA’s as-sertion of ‘‘jurisdiction to regulate tobaccoproducts,’’ id., at 126, 132, 120 S.Ct. 1291—a question of vast ‘‘economic and politicalmagnitude,’’ id., at 133, 120 S.Ct. 1291.‘‘Because this case involves an administra-tive agency’s construction of a statute thatit administers,’’ we held, Chevron applied.529 U.S., at 132, 120 S.Ct. 1291. Similarly,in MCI Telecommunications Corp. v.American Telephone & Telegraph Co., 512U.S. 218, 224, 229, 231, 114 S.Ct. 2223, 129L.Ed.2d 182 (1994), we applied the Chev-ron framework to the FCC’s assertion thatthe statutory phrase ‘‘modify any require-ment’’ gave it authority to eliminate rate-filing requirements, ‘‘the essential charac-teristic of a rate-regulated industry,’’ forlong-distance telephone carriers.

The false dichotomy between ‘‘jurisdic-tional’’ and ‘‘nonjurisdictional’’ agency in-terpretations may be no more than a bo-geyman, but it is dangerous all the same.Like the Hound of the Baskervilles, it is

grant or seasonal farmworkers as providingno remedy where a state workers’-compensa-tion law covered the worker. 494 U.S., at649, 110 S.Ct. 1384. We held that we had noneed to ‘‘defer to the Secretary of Labor’sview of the scope of’’ that private right ofaction ‘‘because Congress has expressly estab-lished the Judiciary and not the Departmentof Labor as the adjudicator of private rights ofaction arising under the statute.’’ Ibid.Adams Fruit stands for the modest proposi-tion that the Judiciary, not any executiveagency, determines ‘‘the scope’’—includingthe available remedies—‘‘of judicial powervested by’’ statutes establishing private rightsof action. Id., at 650, 110 S.Ct. 1384. AdamsFruit explicitly affirmed the Department’s au-thority to promulgate the substantive stan-

dards enforced through that private right ofaction. See ibid.

The dissent’s invocation of Gonzales v. Ore-gon, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d748 (2006), see post, at 1882 – 1883, is simplyperplexing: The majority opinion in that caseexpressly lists the Communications Act as anexample of a statute under which an agency’s‘‘authority is clear because the statute givesan agency broad power to enforce all provi-sions of the statute.’’ 546 U.S., at 258–259,126 S.Ct. 904 (citing 47 U.S.C. § 201(b); em-phasis added). That statement cannot besquared with the dissent’s proposed remandfor the Fifth Circuit to determine ‘‘whetherCongress delegated interpretive authorityover § 332(c)(7)(B)(ii) to the FCC.’’ Post, at1875.


conjured by those with greater quarry insight: Make no mistake—the ultimate tar-get here is Chevron itself. Savvy challeng-ers of agency action would play the ‘‘juris-dictional’’ card in every case. See, e.g.,Cellco Partnership v. FCC, 700 F.3d 534,541 (C.A.D.C.2012). Some judges wouldbe deceived by the specious, but scary-sounding, ‘‘jurisdictional’’-‘‘nonjurisdiction-al’’ line; others tempted by the prospect ofmaking public policy by prescribing themeaning of ambiguous statutory com-mands. The effect would be to transferany number of interpretive decisions—ar-chetypal Chevron questions, about howbest to construe an ambiguous term inlight of competing policy interests—fromthe agencies that administer the statutesto federal courts.4 We have cautioned that‘‘judges ought to refrain from substitutingtheir own interstitial lawmaking’’ for thatof an agency. Ford Motor Credit Co. v.Milhollin, 444 U.S. 555, 568, 100 S.Ct. 790,63 L.Ed.2d 22 (1980). That is preciselywhat Chevron prevents.

III

A

[6] One group of respondents contendsthat Chevron deference is inappropriatehere because the FCC has ‘‘assert[ed] ju-risdiction over matters of traditional stateand local concern.’’ Brief for IMLA Re-

spondents 35. But this case has nothingto do with federalism. Section332(c)(7)(B)(ii) explicitly supplants stateauthority by requiring zoning authoritiesto render a decision ‘‘within a reasonableperiod of time,’’ and the meaning of thatphrase is indisputably a question of federallaw. We rejected a similar faux-federal-ism argument in the Iowa Utilities Boardcase, in terms that apply equally here:‘‘This is, at bottom, a debate not aboutwhether the States will be allowed to dotheir own thing, but about whether it willbe the FCC or the federal courts thatdraw the lines to which they must hew.’’525 U.S., at 379, n. 6, 119 S.Ct. 721. Theselines will be drawn either by unelectedfederal bureaucrats, or by unelected (andeven less politically accountable) federaljudges. ‘‘[I]t is hard to spark a passionate‘States’ rights’ debate over that detail.’’Ibid.

B

A few words in response to the dissent.The question on which we granted certio-rari was whether ‘‘a court should applyChevron to review an agency’s determina-tion of its own jurisdiction.’’ Pet. for Cert.i.5 Perhaps sensing the incoherence of the‘‘jurisdictional-nonjurisdictional’’ line, thedissent does not even attempt to defend it,see post, at 1864, but proposes a much

4. THE CHIEF JUSTICE’s discomfort with thegrowth of agency power, see post, at 1877 –1879, is perhaps understandable. But thedissent overstates when it claims that agen-cies exercise ‘‘legislative power’’ and ‘‘judicialpower.’’ Post, at 1877 – 1878; see also post,at 1885 – 1886. The former is vested exclu-sively in Congress, U.S. Const., Art. I, § 1, thelatter in the ‘‘one supreme Court’’ and ‘‘suchinferior Courts as the Congress may fromtime to time ordain and establish,’’ Art. III,§ 1. Agencies make rules (‘‘Private cattlemay be grazed on public lands X, Y, and Zsubject to certain conditions’’) and conductadjudications (‘‘This rancher’s grazing permit

is revoked for violation of the conditions’’)and have done so since the beginning of theRepublic. These activities take ‘‘legislative’’and ‘‘judicial’’ forms, but they are exercisesof—indeed, under our constitutional structurethey must be exercises of—the ‘‘executivePower.’’ Art. II, § 1, cl. 1.

5. The dissent—apparently with no attempt atirony—accuses us of ‘‘misunderstand[ing]’’the question presented as one of ‘‘jurisdic-tion.’’ Post, at 1879 – 1880. Whatever im-precision inheres in our understanding of thequestion presented derives solely from ourhaving read it.


broader scope for de novo judicial review:Jurisdictional or not, and even where arule is at issue and the statute contains abroad grant of rulemaking authority, thedissent would have a court search provi-sion-by-provision to determine ‘‘whether[that] delegation covers the ‘specific provi-sion’ and ‘particular question’ before thecourt.’’ Post, at 1882 – 1883.

The dissent is correct that United Statesv. Mead Corp., 533 U.S. 218, 121 S.Ct.2164, 150 L.Ed.2d 292 (2001), requiresthat, for Chevron deference to apply, theagency must have received congressionalauthority to determine the particular mat-ter at issue in the particular manneradopted. No one disputes that. ButMead denied Chevron deference to action,by an agency with rulemaking authority,that was not rulemaking. What the dis-sent needs, and fails to produce, is a singlecase in which a general conferral of rule-making or adjudicative authority has beenheld insufficient to support Chevron defer-ence for an exercise of that authority with-in the agency’s substantive field. There isno such case, and what the dissent propos-es is a massive revision of our Chevronjurisprudence.

Where we differ from the dissent is inits apparent rejection of the theorem thatthe whole includes all of its parts—its viewthat a general conferral of rulemaking au-thority does not validate rules for all thematters the agency is charged with admin-istering. Rather, the dissent proposesthat even when general rulemaking au-thority is clear, every agency rule must besubjected to a de novo judicial determina-tion of whether the particular issue wascommitted to agency discretion. It offersno standards at all to guide this open-ended hunt for congressional intent (thatis to say, for evidence of congressionalintent more specific than the conferral ofgeneral rulemaking authority). It would

simply punt that question back to theCourt of Appeals, presumably for applica-tion of some sort of totality-of-the-circum-stances test—which is really, of course,not a test at all but an invitation to makean ad hoc judgment regarding congres-sional intent. Thirteen Courts of Appealsapplying a totality-of-the-circumstancestest would render the binding effect ofagency rules unpredictable and destroythe whole stabilizing purpose of Chevron.The excessive agency power that the dis-sent fears would be replaced by chaos.There is no need to wade into these murkywaters. It suffices to decide this case thatthe preconditions to deference under Chev-ron are satisfied because Congress hasunambiguously vested the FCC with gen-eral authority to administer the Communi-cations Act through rulemaking and adju-dication, and the agency interpretation atissue was promulgated in the exercise ofthat authority.

* * *

Those who assert that applying Chevronto ‘‘jurisdictional’’ interpretations ‘‘leavesthe fox in charge of the henhouse’’ over-look the reality that a separate category of‘‘jurisdictional’’ interpretations does notexist. The fox-in-the-henhouse syndromeis to be avoided not by establishing anarbitrary and undefinable category ofagency decisionmaking that is accorded nodeference, but by taking seriously, andapplying rigorously, in all cases, statutorylimits on agencies’ authority. Where Con-gress has established a clear line, theagency cannot go beyond it; and whereCongress has established an ambiguousline, the agency can go no further than theambiguity will fairly allow. But in rigor-ously applying the latter rule, a court neednot pause to puzzle over whether the inter-pretive question presented is ‘‘jurisdiction-al.’’ If ‘‘the agency’s answer is based on apermissible construction of the statute,’’


that is the end of the matter. Chevron,467 U.S., at 842, 104 S.Ct. 2778.

The judgment of the Court of Appeals isaffirmed.

It is so ordered.

Justice BREYER, concurring in partand concurring in the judgment.

I agree with the Court that normally‘‘the question a court faces when confront-ed with an agency’s interpretation of astatute it administers’’ is, ‘‘simply, whetherthe agency has stayed within the boundsof its statutory authority.’’ Ante, at1879 – 1880. In this context, ‘‘the distinc-tion between ‘jurisdictional’ and ‘non-juris-dictional’ interpretations is a mirage.’’Ante, at 1879 – 1880.

Deciding just what those statutorybounds are, however, is not always an easymatter, and the Court’s case law aboundswith discussion of the subject. A review-ing judge, for example, will have to decideindependently whether Congress delegat-ed authority to the agency to provide in-terpretations of, or to enact rules pursuantto, the statute at issue—interpretations orrules that carry with them ‘‘the force oflaw.’’ United States v. Mead Corp., 533U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d292 (2001). If so, the reviewing courtmust give special leeway or ‘‘deference’’ tothe agency’s interpretation. See id., at227–228, 121 S.Ct. 2164.

We have added that, if ‘‘[e]mploying tra-ditional tools of statutory construction,’’INS v. Cardoza–Fonseca, 480 U.S. 421,446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987),the court determines that Congress hasspoken clearly on the disputed question,then ‘‘that is the end of the matter,’’ Chev-ron U.S.A. Inc. v. Natural Resources De-fense Council, Inc., 467 U.S. 837, 842, 104S.Ct. 2778, 81 L.Ed.2d 694 (1984). Theagency is due no deference, for Congress

has left no gap for the agency to fill. Id.,at 842–844, 104 S.Ct. 2778. If, on theother hand, Congress has not spokenclearly, if, for example it has written am-biguously, then that ambiguity is a sign—but not always a conclusive sign—thatCongress intends a reviewing court to payparticular attention to (i.e., to give a de-gree of deference to) the agency’s inter-pretation. See Gonzales v. Oregon, 546U.S. 243, 258–269, 126 S.Ct. 904, 163L.Ed.2d 748 (2006); Mead, supra, at 229,121 S.Ct. 2164

I say that the existence of statutoryambiguity is sometimes not enough to war-rant the conclusion that Congress has lefta deference-warranting gap for the agencyto fill because our cases make clear thatother, sometimes context-specific, factorswill on occasion prove relevant. (And, giv-en the vast number of government stat-utes, regulatory programs, and underlyingcircumstances, that variety is hardly sur-prising.) In Mead, for example, we lookedto several factors other than simple ambi-guity to help determine whether Congressleft a statutory gap, thus delegating to theagency the authority to fill that gap withan interpretation that would carry ‘‘theforce of law.’’ 533 U.S., at 229–231, 121S.Ct. 2164. Elsewhere, we have assessed

‘‘the interstitial nature of the legal ques-tion, the related expertise of the Agency,the importance of the question to admin-istration of the statute, the complexity ofthat administration, and the careful con-sideration the Agency has given thequestion over a long period of time.’’Barnhart v. Walton, 535 U.S. 212, 222,122 S.Ct. 1265, 152 L.Ed.2d 330 (2002).

The subject matter of the relevant provi-sion—for instance, its distance from theagency’s ordinary statutory duties or itsfalling within the scope of another agency’sauthority—has also proved relevant. SeeGonzales, supra, at 265–266, 126 S.Ct. 904.


See also Gellhorn & Verkuil, ControllingChevron–Based Delegations, 20 CardozoL.Rev. 989, 1007–1010 (1999).

Moreover, the statute’s text, its context,the structure of the statutory scheme, andcanons of textual construction are relevantin determining whether the statute is am-biguous and can be equally helpful in de-termining whether such ambiguity comesaccompanied with agency authority to fill agap with an interpretation that carries theforce of law. See Household Credit Ser-vices, Inc. v. Pfennig, 541 U.S. 232, 239–242, 124 S.Ct. 1741, 158 L.Ed.2d 450(2004); Zuni Public School Dist. No. 89 v.Department of Education, 550 U.S. 81, 98–99, 127 S.Ct. 1534, 167 L.Ed.2d 449 (2007);FDA v. Brown & Williamson TobaccoCorp., 529 U.S. 120, 133, 120 S.Ct. 1291,146 L.Ed.2d 121 (2000); Dole v. Steelwork-ers, 494 U.S. 26, 36, 110 S.Ct. 929, 108L.Ed.2d 23 (1990). Statutory purposes,including those revealed in part by legisla-tive and regulatory history, can be similar-ly relevant. See Brown & WilliamsonTobacco Corp., supra, at 143–147, 120 S.Ct.1291; Pension Benefit Guaranty Corpora-tion v. LTV Corp., 496 U.S. 633, 649, 110S.Ct. 2668, 110 L.Ed.2d 579 (1990); GlobalCrossing Telecommunications, Inc. v.Metrophones Telecommunications, Inc.,550 U.S. 45, 48–49, 127 S.Ct. 1513, 167L.Ed.2d 422 (2007). See also AT & TCorp. v. Iowa Utilities Bd., 525 U.S. 366,412–413, 119 S.Ct. 721, 142 L.Ed.2d 835(1999) (BREYER, J., concurring in partand dissenting in part).

Although seemingly complex in abstractdescription, in practice this framework hasproved a workable way to approximatehow Congress would likely have meant toallocate interpretive law-determining au-thority between reviewing court and agen-cy. The question whether Congress hasdelegated to an agency the authority toprovide an interpretation that carries the

force of law is for the judge to answerindependently. The judge, considering‘‘traditional tools of statutory construc-tion,’’ Cardoza–Fonseca, supra, at 446, 107S.Ct. 1207, will ask whether Congress hasspoken unambiguously. If so, the textcontrols. If not, the judge will ask wheth-er Congress would have intended theagency to resolve the resulting ambiguity.If so, deference is warranted. See Mead,supra, at 229, 121 S.Ct. 2164 Even if not,however, sometimes an agency interpreta-tion, in light of the agency’s special exper-tise, will still have the ‘‘power to persuade,if lacking power to control,’’ Skidmore v.Swift & Co., 323 U.S. 134, 140, 65 S.Ct.161, 89 L.Ed. 124 (1944).

The case before us offers an example.The relevant statutory provision requiresstate or local governments to act on wire-less siting applications ‘‘within a reason-able period of time after’’ a wireless ser-vice provider files such a request. 47U.S.C. § 332(c)(7)(B)(ii). The FederalCommunications Commission (FCC) ar-gued that this provision granted it a de-gree of leeway in determining the amountof time that is reasonable. Many factorsfavor the agency’s view: (1) the languageof the Telecommunications Act grants theFCC broad authority (including rulemak-ing authority) to administer the Act; (2)the words are open-ended—i.e. ‘‘ambigu-ous’’; (3) the provision concerns an interst-itial administrative matter, in respect towhich the agency’s expertise could have animportant role to play; and (4) the matter,in context, is complex, likely making theagency’s expertise useful in helping to an-swer the ‘‘reasonableness’’ question thatthe statute poses. See § 151 (creating theFCC); § 201(b) (providing rulemaking au-thority); National Cable & Telecommuni-cations Assn. v. Brand X Internet Ser-vices, 545 U.S. 967, 980–981, 125 S.Ct.2688, 162 L.Ed.2d 820 (2005) (acknowl-


edging the FCC’s authority to administerthe Act).

On the other side of the coin, petitionerspoint to two statutory provisions which,they believe, require a different conclu-sion—namely, that the FCC lacked author-ity altogether to interpret§ 332(c)(7)(B)(ii). First, a nearby savingclause says: ‘‘Except as provided in thisparagraph, nothing in this chapter shalllimit or affect the authority of a State orlocal government or instrumentality there-of over decisions regarding the placement,construction, and modification of personalwireless service facilities.’’ § 332(c)(7)(A).Second, a judicial review provision, says:‘‘Any person adversely affected by anyfinal action or failure to act by a State orlocal government or any instrumentalitythereof that is inconsistent with this sub-paragraph may, within 30 days after suchaction or failure to act, commence an ac-tion in any court of competent jurisdic-tion.’’ § 332(c)(7)(B)(v).

In my view, however, these two provi-sions cannot provide good reason forreaching the conclusion advocated by peti-tioners. The first provision begins with anexception, stating that it does not apply to(among other things) the ‘‘reasonableness’’provision here at issue. The second sim-ply sets forth a procedure for judicial re-view, a review that applies to most govern-ment actions. Both are consistent with astatutory scheme that gives States, locali-ties, the FCC, and reviewing courts eachsome role to play in the location of wirelessservice facilities. And neither ‘‘expresslydescrib[es] an exception’’ to the FCC’s ple-nary authority to interpret the Act.American Hospital Assn. v. NLRB, 499U.S. 606, 613, 111 S.Ct. 1539, 113 L.Ed.2d675 (1991).

For these reasons, I would reject peti-tioners’ 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 effortsto do so carry ‘‘the force of law.’’ Mead,533 U.S., at 229, 121 S.Ct. 2164. TheCourt of Appeals ultimately reached thesame conclusion (though for somewhat dif-ferent reasons), and the majority affirmsthe lower court. I consequently join themajority’s judgment and such portions ofits opinion as are consistent with what Ihave written here.

Chief Justice ROBERTS, with whomJustice KENNEDY and Justice ALITOjoin, dissenting.

My disagreement with the Court is fun-damental. It is also easily expressed: Acourt should not defer to an agency untilthe court decides, on its own, that theagency is entitled to deference. Courtsdefer to an agency’s interpretation of lawwhen and because Congress has conferredon the agency interpretive authority overthe question at issue. An agency cannotexercise interpretive authority until it hasit; the question whether an agency enjoysthat authority must be decided by a court,without deference to the agency.

I

One of the principal authors of the Con-stitution famously wrote that the ‘‘accumu-lation of all powers, legislative, executive,and judiciary, in the same hands, TTT mayjustly be pronounced the very definition oftyranny.’’ The Federalist No. 47, p. 324(J. Cooke ed. 1961) (J. Madison). Al-though modern administrative agencies fitmost comfortably within the ExecutiveBranch, as a practical matter they exer-cise legislative power, by promulgatingregulations with the force of law; execu-tive power, by policing compliance withthose regulations; and judicial power, byadjudicating enforcement actions and im-posing sanctions on those found to have


violated their rules. The accumulation ofthese powers in the same hands is not anoccasional or isolated exception to the con-stitutional plan; it is a central feature ofmodern American government.

The administrative state ‘‘wields vastpower and touches almost every aspect ofdaily life.’’ Free Enterprise Fund v. Pub-lic Company Accounting Oversight Bd.,561 U.S. ––––, ––––, 130 S.Ct. 3138, 3156,177 L.Ed.2d 706 (2010). The Framerscould hardly have envisioned today’s ‘‘vastand varied federal bureaucracy’’ and theauthority administrative agencies now holdover our economic, social, and political ac-tivities. Ibid. ‘‘[T]he administrative statewith its reams of regulations would leavethem rubbing their eyes.’’ Alden v.Maine, 527 U.S. 706, 807, 119 S.Ct. 2240,144 L.Ed.2d 636 (1999) (Souter, J., dissent-ing), quoted in Federal Maritime Comm’nv. South Carolina Ports Authority, 535U.S. 743, 755, 122 S.Ct. 1864, 152 L.Ed.2d962 (2002). And the federal bureaucracycontinues to grow; in the last 15 years,Congress has launched more than 50 newagencies. Compare Office of the FederalRegister, United States Government Man-ual 1997/1998, with Office of the FederalRegister, United States Government Man-ual 2012. And more are on the way. See,e.g., Congressional Research Service, C.Copeland, New Entities Created Pursuantto the Patient Protection and AffordableCare Act 1 (2010) (The PPACA ‘‘creates,requires others to create, or authorizesdozens of new entities to implement thelegislation’’).

Although the Constitution empowers thePresident to keep federal officers account-able, administrative agencies enjoy inpractice a significant degree of indepen-dence. As scholars have noted, ‘‘no Presi-dent (or his executive office staff) could,and presumably none would wish to, su-pervise so broad a swath of regulatory

activity.’’ Kagan, Presidential Administra-tion, 114 Harv. L.Rev. 2245, 2250 (2001);see also S. Breyer, Making Our Democra-cy Work 110 (2010) (‘‘the president maynot have the time or willingness to review[agency] decisions’’). President Trumancolorfully described his power over theadministrative state by complaining, ‘‘Ithought I was the president, but when itcomes to these bureaucrats, I can’t do adamn thing.’’ See R. Nathan, The Admin-istrative Presidency 2 (1986). PresidentKennedy once told a constituent, ‘‘I agreewith you, but I don’t know if the govern-ment will.’’ See id., at 1. The collectionof agencies housed outside the traditionalexecutive departments, including the Fed-eral Communications Commission, is rou-tinely described as the ‘‘headless fourthbranch of government,’’ reflecting not onlythe scope of their authority but their prac-tical independence. See, e.g., Administra-tive Conference of United States, D. Lewis& J. Selin, Sourcebook of United StatesExecutive Agencies 11 (2012).

As for judicial oversight, agencies enjoybroad power to construe statutory provi-sions over which they have been giveninterpretive authority. In Chevron U.S.A.Inc. v. Natural Resources Defense Coun-cil, Inc., we established a test for review-ing ‘‘an agency’s construction of the stat-ute which it administers.’’ 467 U.S. 837,842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).If Congress has ‘‘directly spoken to theprecise question at issue,’’ we said, ‘‘that isthe end of the matter.’’ Ibid. A contraryagency interpretation must give way. Butif Congress has not expressed a specificintent, a court is bound to defer to any‘‘permissible construction of the statute,’’even if that is not ‘‘the reading the courtwould have reached if the question initiallyhad arisen in a judicial proceeding.’’ Id.,at 843, and n. 11, 104 S.Ct. 2778.


When it applies, Chevron is a powerfulweapon in an agency’s regulatory arsenal.Congressional delegations to agencies areoften ambiguous—expressing ‘‘a moodrather than a message.’’ Friendly, TheFederal Administrative Agencies: TheNeed for Better Definition of Standards,75 Harv. L.Rev. 1263, 1311 (1962). Bydesign or default, Congress often fails tospeak to ‘‘the precise question’’ before anagency. In the absence of such an answer,an agency’s interpretation has the fullforce and effect of law, unless it ‘‘exceedsthe bounds of the permissible.’’ Barnhartv. Walton, 535 U.S. 212, 218, 122 S.Ct.1265, 152 L.Ed.2d 330 (2002).

It would be a bit much to describe theresult as ‘‘the very definition of tyranny,’’but the danger posed by the growing pow-er of the administrative state cannot bedismissed. See, e.g., Talk America, Inc. v.Michigan Bell Telephone Co., 564 U.S.––––, ––––, 131 S.Ct. 2254, 2266, 180L.Ed.2d 96 (2011) (SCALIA, J., concur-ring) (noting that the FCC ‘‘has repeatedlybeen rebuked in its attempts to expand thestatute beyond its text, and has repeatedlysought new means to the same ends’’);Sackett v. EPA, 566 U.S. ––––, –––– –––––, 132 S.Ct. 1367, 1374, 182 L.Ed.2d 367(2012) (rejecting agency argument thatwould ‘‘enable the strong-arming of regu-lated parties into ‘voluntary compliance’without the opportunity for judicial re-view’’).

What the Court says in footnote 4 of itsopinion is good, and true (except of coursefor the ‘‘dissent overstates’’ part). Ante,at 1873, n. 4. The Framers did dividegovernmental power in the manner theCourt describes, for the purpose of safe-guarding liberty. And yet TTT the citizenconfronting thousands of pages of regula-tions—promulgated by an agency directedby Congress to regulate, say, ‘‘in the publicinterest’’—can perhaps be excused for

thinking that it is the agency really doingthe legislating. And with hundreds of fed-eral agencies poking into every nook andcranny of daily life, that citizen might alsounderstandably question whether Presi-dential oversight—a critical part of theConstitutional plan—is always an effectivesafeguard against agency overreaching.

It is against this background that weconsider whether the authority of adminis-trative agencies should be augmented evenfurther, to include not only broad power togive definitive answers to questions left tothem by Congress, but also the same pow-er to decide when Congress has giventhem that power.

Before proceeding to answer that ques-tion, however, it is necessary to sortthrough some confusion over what this liti-gation is about. The source of the confu-sion is a familiar culprit: the concept of‘‘jurisdiction,’’ which we have repeatedlydescribed as a word with ‘‘ ‘many, toomany, meanings.’ ’’ Union Pacific R. Co.v. Locomotive Engineers, 558 U.S. 67, 81,130 S.Ct. 584, 175 L.Ed.2d 428 (2009).

The Court states that the question ‘‘iswhether a court must defer under Chevronto an agency’s interpretation of a statutoryambiguity that concerns the scope of theagency’s statutory authority (that is, itsjurisdiction).’’ Ante, at 1868. That isfine—until the parenthetical. The parties,amici, and court below too often use theterm ‘‘jurisdiction’’ imprecisely, whichleads the Court to misunderstand the ar-gument it must confront. That argumentis not that ‘‘there exist two distinct classesof agency interpretations,’’ some ‘‘big, im-portant ones’’ that ‘‘define the agency’s‘jurisdiction,’ ’’ and other ‘‘humdrum, run-of-the-mill’’ ones that ‘‘are simply applica-tions of jurisdiction the agency plainlyhas.’’ Ibid. The argument is instead thata court should not defer to an agency on


whether Congress has granted the agencyinterpretive authority over the statutoryambiguity at issue.

You can call that ‘‘jurisdiction’’ if you’dlike, as petitioners do in the question pre-sented. But given that the term is ambig-uous, more is required to understand itsuse in that question than simply ‘‘havingread it.’’ Ante, at 1873, n. 5. It is impor-tant to keep in mind that the term, in thepresent context, has the more precisemeaning noted above, encompassing con-gressionally delegated authority to issueinterpretations with the force and effect oflaw. See 668 F.3d 229, 248 (C.A.5 2012)(case below) (‘‘The issue in the instant caseis whether the FCC possessed statutoryauthority to administer § 332(c)(7)(B)(ii)and (v) by adopting the 90– and 150–daytime frames’’). And that has nothing dowith whether the statutory provisions atissue are ‘‘big’’ or ‘‘small.’’

II

‘‘It is emphatically the province and dutyof the judicial department to say what thelaw is.’’ Marbury v. Madison, 1 Cranch137, 177, 2 L.Ed. 60 (1803). The rise ofthe modern administrative state has notchanged that duty. Indeed, the Adminis-trative Procedure Act, governing judicialreview of most agency action, instructsreviewing courts to decide ‘‘all relevantquestions of law.’’ 5 U.S.C. § 706.

We do not ignore that command whenwe afford an agency’s statutory interpreta-tion Chevron deference; we respect it.We give binding deference to permissibleagency interpretations of statutory ambi-guities because Congress has delegated tothe agency the authority to interpret thoseambiguities ‘‘with the force of law.’’ Unit-ed States v. Mead Corp., 533 U.S. 218, 229,121 S.Ct. 2164, 150 L.Ed.2d 292 (2001);see also Monaghan, Marbury and the Ad-ministrative State, 83 Colum. L.Rev. 1, 27–

28 (1983) (‘‘the court is not abdicating itsconstitutional duty to ‘say what the law is’by deferring to agency interpretations oflaw: it is simply applying the law as ‘made’by the authorized law-making entity’’).

But before a court may grant such def-erence, it must on its own decide whetherCongress—the branch vested with law-making authority under the Constitution—has in fact delegated to the agency law-making power over the ambiguity at issue.See ante, at 1876 (BREYER, J., concur-ring in part and concurring in judgment)(‘‘The question whether Congress has dele-gated to an agency the authority to pro-vide an interpretation that carries theforce of law is for the judge to answerindependently.’’). Agencies are creaturesof Congress; ‘‘an agency literally has nopower to act TTT unless and until Congressconfers power upon it.’’ Louisiana Pub.Serv. Comm’n v. FCC, 476 U.S. 355, 374,106 S.Ct. 1890, 90 L.Ed.2d 369 (1986).Whether Congress has conferred suchpower is the ‘‘relevant question[ ] of law’’that must be answered before affordingChevron deference. 5 U.S.C. § 706.

III

A

Our precedents confirm this conclu-sion—beginning with Chevron itself. InChevron, the EPA promulgated a regula-tion interpreting the term ‘‘stationarysources’’ in the Clean Air Act. 467 U.S.,at 840, 104 S.Ct. 2778 (quoting 42 U.S.C.§ 7502(b)(6)(1982 ed.)). An environmentalgroup petitioned for review of the rule,challenging it as an impermissible inter-pretation of the Act. 467 U.S., at 841, 859,104 S.Ct. 2778. Finding the statutory text‘‘not dispositive’’ and the legislative history‘‘silent on the precise issue,’’ we upheld therule. Id., at 862, 866, 104 S.Ct. 2778.


In our view, the challenge to the agen-cy’s interpretation ‘‘center[ed] on the wis-dom of the agency’s policy, rather thanwhether it is a reasonable choice within agap left open by Congress.’’ Id., at 866,104 S.Ct. 2778. Judges, we said, ‘‘are notexperts in the field, and are not part ofeither political branch of the Government.’’Id., at 865, 104 S.Ct. 2778. Thus, becauseCongress had not answered the specificquestion at issue, judges had no businessproviding their own resolution on the basisof their ‘‘personal policy preferences.’’Ibid. Instead, the ‘‘agency to which Con-gress ha[d] delegated policymaking re-sponsibilities’’ was the appropriate politicalactor to resolve the competing interests atstake, ‘‘within the limits of that delega-tion.’’ Ibid.

Chevron ’s rule of deference was basedon—and limited by—this congressionaldelegation. And the Court did not asksimply whether Congress had delegated tothe EPA the authority to administer theClean Air Act generally. We askedwhether Congress had ‘‘delegat[ed] au-thority to the agency to elucidate a specificprovision of the statute by regulation.’’Id., at 843–844, 104 S.Ct. 2778 (emphasisadded); see id., at 844, 104 S.Ct. 2778(discussing ‘‘the legislative delegation to anagency on a particular question ’’ (empha-sis added)). We deferred to the EPA’sinterpretation of ‘‘stationary sources’’based on our conclusion that the agencyhad been ‘‘charged with responsibility foradministering the provision.’’ Id., at 865,104 S.Ct. 2778 (emphasis added).

B

We have never faltered in our under-standing of this straightforward principle,that whether a particular agency interpre-tation warrants Chevron deference turnson the court’s determination whether Con-gress has delegated to the agency the au-

thority to interpret the statutory ambigui-ty at issue.

We made the point perhaps most clearlyin Adams Fruit Co. v. Barrett, 494 U.S.638, 110 S.Ct. 1384, 108 L.Ed.2d 585(1990). In that case, the Department ofLabor contended the Court should defer toits interpretation of the scope of the pri-vate right of action provided by the Mi-grant and Seasonal Agriculture WorkerProtection Act (AWPA), 29 U.S.C. § 1854,against employers who intentionally violat-ed the Act’s motor vehicle safety provi-sions. We refused to do so. Although ‘‘asan initial matter’’ we rejected the idea thatCongress left a ‘‘statutory ‘gap’ ’’ for theagency to fill, we reasoned that if the‘‘AWPA’s language establishing a privateright of action is ambiguous,’’ the Secre-tary of Labor’s interpretation of its scopedid not warrant Chevron deference. 494U.S., at 649, 110 S.Ct. 1384.

In language directly applicable to thequestion before us, we explained that‘‘[a] precondition to deference underChevron is a congressional delegation ofadministrative authority.’’ Ibid. Al-though ‘‘Congress clearly envisioned, in-deed expressly mandated, a role for theDepartment of Labor in administeringthe statute by requiring the Secretary topromulgate standards implementingAWPA’s motor vehicle provisions,’’ wefound ‘‘[n]o such delegation regardingAWPA’s enforcement provisions.’’ Id., at650, 110 S.Ct. 1384 (emphasis added). Itwould therefore be ‘‘inappropriate,’’ wesaid, ‘‘to consult executive interpreta-tions’’ of the enforcement provisions toresolve ambiguities ‘‘surrounding thescope of AWPA’s judicially enforceableremedy.’’ Ibid. Without questioning theprinciple that agency determinations‘‘within the scope of delegated authorityare entitled to deference,’’ we explainedthat ‘‘it is fundamental ‘that an agency


may not bootstrap itself into an area inwhich it has no jurisdiction.’ ’’ Ibid.(quoting Federal Maritime Comm’n v.Seatrain Lines, Inc., 411 U.S. 726, 745,93 S.Ct. 1773, 36 L.Ed.2d 620 (1973)).

Our subsequent cases follow the sameapproach. In United States v. MeadCorp., supra, for example, Chevron defer-ence turned on whether Congress had del-egated to the agency authority to interpretthe statutory ambiguity by a particularmeans. The Customs Service had issued a‘‘classification ruling,’’ interpreting theterm ‘‘diaries’’ in a tariff schedule to in-clude ‘‘day planners’’ of the type Meadimported, and on that basis subjected theplanners to a four-percent tariff. Meadprotested the imposition of the tariff, theCustoms Service claimed Chevron defer-ence for its interpretation, and the contro-versy made its way to our Court. Id., at224–226, 121 S.Ct. 2164.

In Mead, we again made clear that the‘‘category of interpretative choices’’ towhich Chevron deference applies is definedby congressional intent. Id., at 229, 121S.Ct. 2164. Chevron deference, we said,rests on a recognition that Congress hasdelegated to an agency the interpretiveauthority to implement ‘‘a particular provi-sion’’ or answer ‘‘ ‘a particular question.’ ’’Ibid. (quoting Chevron, 467 U.S., at 844,104 S.Ct. 2778). An agency’s interpreta-tion of ‘‘a particular statutory provision’’thus qualifies for Chevron deference only‘‘when it appears that Congress delegatedauthority to the agency generally to makerules carrying the force of law, and thatthe agency interpretation claiming defer-ence was promulgated in the exercise ofthat authority.’’ 533 U.S., at 226–227, 121S.Ct. 2164.

The Court did not defer to the agency’sviews but instead determined that Con-gress had not delegated interpretive au-thority to the Customs Service to defini-

tively construe the tariff schedule throughclassification rulings. Neither the statuto-ry authorization for the classification rul-ings, nor the Customs Service’s practice inissuing such rulings, ‘‘reasonably sug-gest[ed] that Congress ever thought of[such] classification rulings as deservingthe deference claimed for them.’’ Id., at231, 121 S.Ct. 2164. And in the absence ofsuch a delegation, we concluded the inter-pretations adopted in those rulings were‘‘beyond the Chevron pale.’’ Id., at 234,121 S.Ct. 2164.

Gonzales v. Oregon, 546 U.S. 243, 126S.Ct. 904, 163 L.Ed.2d 748 (2006), is in thesame line of precedent. In that case, ashere, deference turned on whether a con-gressional delegation of interpretive au-thority reached a particular statutory am-biguity. The Attorney General claimedChevron deference for his interpretation ofthe phrase ‘‘legitimate medical purpose’’ inthe Controlled Substances Act (CSA) toexclude the prescribing and dispensing ofcontrolled substances for the purpose ofassisting suicide. Id., at 254, 258, 126S.Ct. 904. No one disputed that ‘‘legiti-mate medical purpose’’ was ‘‘ambiguous inthe relevant sense.’’ Id., at 258, 126 S.Ct.904. Nor did any Justice dispute that theAttorney General had been granted thepower in the CSA to promulgate rules withthe force of law. Ibid.; see id., at 281, 126S.Ct. 904 (SCALIA, J., dissenting). Nev-ertheless, the Court explained, ‘‘Chevrondeference TTT is not accorded merely be-cause the statute is ambiguous and anadministrative official is involved.’’ Id., at258, 126 S.Ct. 904. The regulation advanc-ing the interpretation, we said, ‘‘must bepromulgated pursuant to authority Con-gress has delegated to the official.’’ Ibid.(citing Mead, supra, at 226–227, 121 S.Ct.2164).

In the CSA, Congress delegated to theAttorney General the authority to promul-


gate regulations ‘‘relating to the registra-tion and control of the manufacture, dis-tribution, and dispensing of controlledsubstances,’’ 21 U.S.C. § 821, or ‘‘for theefficient execution of his functions under[the CSA],’’ § 871(b). After consideringthe text, structure, and purpose of theAct, the Court concluded on its own thatinterpreting ‘‘legitimate medical purpose’’fell under neither delegation. Gonzales,546 U.S., at 258–269, 126 S.Ct. 904. Be-cause the regulation ‘‘was not promulgat-ed pursuant to the Attorney General’s au-thority, its interpretation of ‘legitimatemedical purpose’ d[id] not receive Chevrondeference.’’ Id., at 268, 126 S.Ct. 904.

Adams Fruit, Mead, and Gonzales thusconfirm that Chevron deference is basedon, and finds legitimacy as, a congressionaldelegation of interpretive authority. Anagency interpretation warrants such defer-ence only if Congress has delegated au-thority to definitively interpret a particularambiguity in a particular manner. Wheth-er Congress has done so must be deter-mined by the court on its own beforeChevron can apply. See H. Edwards, L.Elliott, & M. Levy, Federal Courts Stan-dards of Review 168 (2d ed. 2013) (‘‘a courtdecides de novo whether an agency hasacted within the bounds of congressionallydelegated authority’’ (citing Mead, supra,at 226–227, 121 S.Ct. 2164, and Gonzales,supra, at 258, 126 S.Ct. 904)); Sales &Adler, The Rest is Silence: Chevron Def-erence, Agency Jurisdiction, and StatutorySilences, 2009 U. Ill. L.Rev. 1497, 1564(2009) (‘‘if delegation really is antecedentto deference, as Mead insists, it cannot bethat courts should defer to an agency’sviews on whether a delegation has takenplace’’).

In other words, we do not defer to anagency’s interpretation of an ambiguousprovision unless Congress wants us to, andwhether Congress wants us to is a ques-

tion that courts, not agencies, must decide.Simply put, that question is ‘‘beyond theChevron pale.’’ Mead, supra, at 234, 121S.Ct. 2164

IV

Despite these precedents, the FCC ar-gues that a court need only locate an agen-cy and a grant of general rulemaking au-thority over a statute. Chevron deferencethen applies, it contends, to the agency’sinterpretation of any ambiguity in the Act,including ambiguity in a provision said tocarve out specific provisions from theagency’s general rulemaking authority. IfCongress intends to exempt part of thestatute from the agency’s interpretive au-thority, the FCC says, Congress ‘‘can ordi-narily be expected to state that intentexplicitly.’’ Brief for Federal Respondents30 (citing American Hospital Assn. v.NLRB, 499 U.S. 606, 111 S.Ct. 1539, 113L.Ed.2d 675 (1991)).

If a congressional delegation of interpre-tive authority is to support Chevron defer-ence, however, that delegation must ex-tend to the specific statutory ambiguity atissue. The appropriate question is wheth-er the delegation covers the ‘‘specific pro-vision’’ and ‘‘particular question’’ beforethe court. Chevron, 467 U.S., at 844, 104S.Ct. 2778. A congressional grant of au-thority over some portion of a statute doesnot necessarily mean that Congress grant-ed the agency interpretive authority overall its provisions. See Adams Fruit, 494U.S., at 650, 110 S.Ct. 1384.

An example that might highlight thepoint concerns statutes that parcel out au-thority to multiple agencies, which ‘‘maybe the norm, rather than an exception.’’Gersen, Overlapping and Underlapping Ju-risdiction in Administrative Law, 2006S.Ct. Rev. 201, 208; see, e.g., Gonzales,546 U.S., at 250–251, 126 S.Ct. 904 (de-scribing shared authority over the CSA


between the Attorney General and theSecretary of Health and Human Services);Sutton v. United Air Lines, Inc., 527 U.S.471, 478, 119 S.Ct. 2139, 144 L.Ed.2d 450(1999) (authority to issue regulations im-plementing the Americans with DisabilitiesAct ‘‘is split primarily among three Gov-ernment agencies’’). The Dodd–FrankWall Street Reform and Consumer Protec-tion Act, for example, authorizes rulemak-ing by at least eight different agencies.See Congressional Research Service, C.Copeland, Rulemaking Requirements andAuthorities in the Dodd–Frank Wall StreetReform and Consumer Protection Act 7(2010). When presented with an agency’sinterpretation of such a statute, a courtcannot simply ask whether the statute isone that the agency administers; the ques-tion is whether authority over the particu-lar ambiguity at issue has been delegatedto the particular agency.

By the same logic, even when Congressprovides interpretive authority to a singleagency, a court must decide if the ambigui-ty the agency has purported to interpretwith the force of law is one to which thecongressional delegation extends. A gen-eral delegation to the agency to administerthe statute will often suffice to satisfy thecourt that Congress has delegated inter-pretive authority over the ambiguity atissue. But if Congress has exempted par-ticular provisions from that authority, thatexemption must be respected, and the de-termination whether Congress has done sois for the courts alone.

The FCC’s argument that Congress‘‘can ordinarily be expected to state thatintent explicitly,’’ Brief for Federal Re-spondents 30 (citing American Hospital,supra ), goes to the merits of that determi-nation, not to whether a court should de-cide the question de novo or defer to theagency. Indeed, that is how the Court inAmerican Hospital considered it. It was

in the process of ‘‘employing the tradition-al tools of statutory construction’’ that theCourt said it would have expected Con-gress to speak more clearly if it had in-tended to exclude an entire subject area—employee units for collecting bargaining—from the NLRB’s general rulemaking au-thority. Id., at 613, 614, 111 S.Ct. 1539.The Court concluded, after considering thelanguage, structure, policy, and legislativehistory of the Act on its own—withoutdeferring to the agency—that the meaningof the statute was ‘‘clear and contrary tothe meaning advanced by petitioner.’’ Id.,at 609–614, 111 S.Ct. 1539. To be sure,the Court also noted that ‘‘[e]ven if wecould find any ambiguity in [the provision]after employing the traditional tools ofstatutory construction, we would still deferto Board’s reasonable interpretation.’’ Id.,at 614, 111 S.Ct. 1539 (emphasis added).But that single sentence of dictum cannotcarry the day for the FCC here.

V

As the preceding analysis makes clear, Ido not understand petitioners to ask theCourt—nor do I think it necessary—todraw a ‘‘specious, but scary-sounding’’ linebetween ‘‘big, important’’ interpretationson the one hand and ‘‘humdrum, run-of-the-mill’’ ones on the other. Ante, at 1868,1879. Drawing such a line may well bedifficult. Distinguishing between whetheran agency’s interpretation of an ambiguousterm is reasonable and whether that termis for the agency to interpret is not nearlyso difficult. It certainly did not confusethe FCC in this proceeding. Compare Inre Petition for Declaratory Ruling, 24FCC Rcd. 13994, 14000–14003 (2009) (ad-dressing the latter question), with id., at14003–14015 (addressing the former). Nordid it confound the Fifth Circuit. Com-pare 668 F.3d, at 247–254 (deciding‘‘whether the FCC possessed statutory au-thority to administer § 332(c)(7)(B)(ii)’’),


with id., at 254–260 (considering ‘‘whetherthe 90– and 150–day time frames them-selves also pass muster under Chevron ’’).More importantly, if the legitimacy ofChevron deference is based on a congres-sional delegation of interpretive authority,then the line is one the Court must draw.

The majority’s hypothetical CommonCarrier Acts do not demonstrate anythingdifferent. Ante, at 1880 – 1881. The ma-jority states that in its second CommonCarrier Act, Section 2 makes clear thatCongress ‘‘ ‘conferred interpretative poweron the agency’ ’’ to interpret the ambigu-ous terms ‘‘common carrier’’ and ‘‘unrea-sonable condition.’’ Ante, at 1880 – 1881(quoting Brief for Petitioners in No. 1545,p. 14). Thus, it says, under anyone’s theo-ry a court must defer to the agency’sreasonable interpretations of those terms.Correct.

The majority claims, however, that ‘‘pe-titioners’ theory would accord the agencyno deference’’ in its interpretation of thesame ambiguous terms in the first Com-mon Carrier Act. Ante, at 1880 – 1881.But as I understand petitioners’ argu-ment—and certainly in my own view—acourt, in both cases, need only decide foritself whether Congress has delegated tothe agency authority to interpret the am-biguous terms, before affording the agen-cy’s interpretation Chevron deference.

For the second Common Carrier Act,the answer is easy. The majority’s hypo-thetical Congress has spoken clearly andspecifically in Section 2 of the Act about itsdelegation of authority to interpret Section1. As for the first Act, it is harder toanalyze the question, given only one sec-tion of a presumably much larger statute.But if the first Common Carrier Act is likemost agencies’ organic statutes, I have noreason to doubt that the agency wouldlikewise have interpretive authority overthe same ambiguous terms, and therefore

be entitled to deference in construingthem, just as with the second CommonCarrier Act. There is no new ‘‘test’’ toworry about, cf. ante, at 1885 – 1886;courts would simply apply the normalrules of statutory construction.

That the question might be harder withrespect to the first Common Carrier Actshould come as no surprise. The secondhypothetical Congress has more carefullydefined the agency’s authority than thefirst. Whatever standard of review ap-plies, it is more difficult to interpret anunclear statute than a clear one. My pointis simply that before a court can defer tothe agency’s interpretation of the ambigu-ous terms in either Act, it must determinefor itself that Congress has delegated au-thority to the agency to issue those inter-pretations with the force of law.

The majority also expresses concernthat adopting petitioners’ position wouldundermine Chevron ’s stable backgroundrule against which Congress legislates.Ante, at 1879 – 1880. That, of course, begsthe question of what that stable back-ground rule is. See Merrill & Hickman,Chevron ’s Domain, 89 Geo. L.Rev. 833,910 (2001) (‘‘Courts have never deferred toagencies with respect to questions such aswhether Congress has delegated to anagency the power to act with the force oflaw through either legislative rules orbinding adjudications. Similarly, it hasnever been maintained that Congresswould want courts to give Chevron defer-ence to an agency’s determination that it isentitled to Chevron deference, or shouldgive Chevron deference to an agency’s de-termination of what types of interpreta-tions are entitled to Chevron deference’’(footnote omitted)).

VI

The Court sees something nefarious be-hind the view that courts must decide on


their own whether Congress has delegatedinterpretative authority to an agency, be-fore deferring to that agency’s interpreta-tion of law. What is afoot, according tothe Court, is a judicial power-grab, withnothing less than ‘‘Chevron itself’’ as ‘‘theultimate target.’’ Ante, at 1873.

The Court touches on a legitimate con-cern: Chevron importantly guards againstthe Judiciary arrogating to itself policy-making properly left, under the separationof powers, to the Executive. But there isanother concern at play, no less firmlyrooted in our constitutional structure.That is the obligation of the Judiciary notonly to confine itself to its proper role, butto ensure that the other branches do so aswell.

An agency’s interpretive authority, enti-tling the agency to judicial deference, ac-quires its legitimacy from a delegation oflawmaking power from Congress to theExecutive. Our duty to police the bound-ary between the Legislature and the Ex-ecutive is as critical as our duty to respectthat between the Judiciary and the Exec-utive. See Zivotofsky v. Clinton, 566 U.S.––––, ––––, 132 S.Ct. 1421, 1428, 182L.Ed.2d 423 (2012). In the present con-text, that means ensuring that the Legis-lative Branch has in fact delegated law-making power to an agency within theExecutive Branch, before the Judiciarydefers to the Executive on what the lawis. That concern is heightened, not di-minished, by the fact that the administra-tive agencies, as a practical matter, drawupon a potent brew of executive, legisla-tive, and judicial power. And it is height-ened, not diminished, by the dramaticshift in power over the last 50 years fromCongress to the Executive—a shift effect-ed through the administrative agencies.

We reconcile our competing responsibili-ties in this area by ensuring judicial defer-ence to agency interpretations under Chev-

ron—but only after we have determinedon our own that Congress has given inter-pretive authority to the agency. Our ‘‘taskis to fix the boundaries of delegated au-thority,’’ Monaghan, 83 Colum. L.Rev., at27; that is not a task we can delegate tothe agency. We do not leave it to theagency to decide when it is in charge.

* * *

In these cases, the FCC issued a declar-atory ruling interpreting the term ‘‘reason-able period of time’’ in 47 U.S.C.§ 332(c)(7)(B)(ii). The Fifth Circuit cor-rectly recognized that it could not applyChevron deference to the FCC’s interpre-tation unless the agency ‘‘possessed statu-tory authority to administer§ 332(c)(7)(B)(ii),’’ but it erred by grantingChevron deference to the FCC’s view onthat antecedent question. See 668 F.3d, at248. Because the court should have deter-mined on its own whether Congress dele-gated interpretive authority over§ 332(c)(7)(B)(ii) to the FCC before afford-ing Chevron deference, I would vacate thedecision below and remand the cases tothe Fifth Circuit to perform the properinquiry in the first instance.

I respectfully dissent.

,

Kathleen SEBELIUS, Secretary ofHealth and Human Services,

Petitioner

v.

Melissa CLOER.No. 12–236.

Argued March 19, 2013.

Decided May 20, 2013.

Background: Claimant petitioned forcompensation under National Childhood

city of arlington, tex. v. f.c.c. 1863city of arlington, tex. v. f.c.c. 1865 cite as 133 s.ct. 1863...

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