City of Arlington v. Fed. Commc'ns Comm'n , 133 S. Ct. 1863 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY OF ARLINGTON, TEXAS, ET AL. v. FEDERAL
COMMUNICATIONS COMMISSION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 11–1545. Argued January 16, 2013—Decided May 20, 2013*
The Communications Act of 1934, as amended, requires state or local
governments to act on siting applications for wireless facilities “with-
in 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 Communications Act, see 47 U. S. C. §201(b), the Federal Com-
munications Commission (FCC) 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
Declaratory Ruling in the Fifth Circuit. They argued that the Com-
mission 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 juris-
diction, applied Chevron to that question. Finding the statute am-
biguous, it upheld as a permissible construction of the statute the
FCC’s view that §201(b)’s broad grant of regulatory authority em-
powered it to administer §332(c)(7)(B).
Held: Courts must apply the Chevron framework to an agency’s inter-
pretation of a statutory ambiguity that concerns the scope of the
agency’s statutory authority (i.e., its jurisdiction). Pp. 4–17.
——————
* Together with No. 11–1547, Cable, Telecommunications, and Tech-
nology Committee of New Orleans City Council v. Federal Communica-
tions Commission, also on certiorari to the same court.
2 ARLINGTON v. FCC
Syllabus
(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 ambigu-
ous,” the court must defer to the administering agency’s construction
of the statute so long as it is permissible. Id., at 843. Pp. 4–5.
(b) When a court reviews an agency’s interpretation of a statute it
administers, the question is always, simply, whether the agency has
stayed within the bounds of its statutory authority. There is no dis-
tinction between an agency’s “jurisdictional” and “nonjurisdictional”
interpretations. The “jurisdictional-nonjurisdictional” line is mean-
ingful 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 jurisdiction—but not to prescribe how they decide those cases.
But for agencies charged with administering congressional statutes,
both their power to act and how they are to act is authoritatively pre-
scribed 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 framework. See, e.g., National Cable & Telecommunications
Assn., Inc. v. Gulf Power Co., 534 U. S. 327, 333, 339. Pp. 5–10.
(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 Commission 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 Chem-
ical 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 regulatory scheme, see FDA v. Brown & Williamson
Tobacco Corp., 529 U. S. 120, 132. Pp. 10–14.
(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 question is simply whether a federal agency or federal courts will
draw the lines to which the States must hew. P. 14.
(e) United States v. Mead Corp., 533 U. S. 218, requires that, for
Chevron deference to apply, the agency must have received congres-
sional authority to determine the particular matter at issue in the
particular manner adopted. But Mead denied Chevron deference to
Cite as: 569 U. S. ____ (2013) 3
Syllabus
action, by an agency with rulemaking authority, that was not rule-
making. There is no case in which a general conferral of rulemaking
or adjudicative authority has been held insufficient to support Chev-
ron deference for an exercise of that authority within the agency’s
substantive field. A general conferral of rulemaking authority vali-
dates rules for all the matters the agency is charged with administer-
ing. It suffices to decide this case that the preconditions to deference
under Chevron are satisfied because Congress has unambiguously
vested the FCC with general authority to administer the Communi-
cations Act through rulemaking and adjudication, and the agency in-
terpretation at issue was promulgated in the exercise of that authori-
ty. Pp. 14–16.
668 F. 3d 229, affirmed.
SCALIA, J., delivered the opinion of the Court, in which THOMAS,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an
opinion concurring in part and concurring in the judgment. ROBERTS,
C. J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ.,
joined.
Cite as: 569 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–1545 and 11–1547
_________________
CITY OF ARLINGTON, TEXAS, ET AL.,
PETITIONERS
11–1545 v.
FEDERAL COMMUNICATIONS
COMMISSION ET AL.
CABLE, TELECOMMUNICATIONS, AND
TECHNOLOGY COMMITTEE OF THE
NEW ORLEANS CITY COUNCIL,
PETITIONER
11–1547 v.
FEDERAL COMMUNICATIONS
COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 20, 2013]
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether an agency’s interpretation of a
statutory ambiguity that concerns the scope of its regula-
tory authority (that is, its jurisdiction) is entitled to defer-
ence under Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837 (1984).
I
Wireless telecommunications networks require towers
and antennas; proposed sites for those towers and anten-
2 ARLINGTON v. FCC
Opinion of the Court
nas must be approved by local zoning authorities. In the
Telecommunications Act of 1996, Congress “impose[d]
specific limitations on the traditional authority of state
and local governments to regulate the location, construc-
tion, and modification of such facilities,” Rancho Palos
Verdes v. Abrams, 544 U. S. 113, 115 (2005), and incorpo-
rated those limitations into the Communications Act of
1934, see 110 Stat. 56, 151. Section 201(b) of that Act
empowers the Federal Communications 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 subse-
quently added portions of the Act. See AT&T Corp. v.
Iowa Utilities Bd., 525 U. S. 366, 377–378 (1999).
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 appli-
cations “within a reasonable period of time after the re-
quest is duly filed.” Two other features of §332(c)(7) are
relevant. First, subparagraph (A), known as the “saving
clause,” provides that nothing in the Act, except those
limitations provided 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 com-
petent jurisdiction.”
In theory, §332(c)(7)(B)(ii) requires state and local
zoning authorities to take prompt action on siting applica-
tions for wireless facilities. But in practice, wireless pro-
viders often faced long delays. In July 2008, CTIA—The
Cite as: 569 U. S. ____ (2013) 3
Opinion of the Court
Wireless Association,1 which represents wireless service
providers, petitioned 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 respond-
ing to CTIA’s petition. In re Petition for Declaratory Rul-
ing, 24 FCC Rcd. 13994, 14001. The Commission found
that the “record evidence demonstrates that unreasonable
delays in the personal wireless service facility siting
process have obstructed the provision of wireless services”
and that such delays “impede the promotion of ad-
vanced services and competition 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 presump-
tively (but rebuttably) 90 days to process a collocation
application (that is, an application to place a new antenna
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 Commis-
sion lacked “authority to interpret ambiguous provisions of
Section 332(c)(7).” Id., at 14000. Specifically, they argued
that the saving clause, §332(c)(7)(A), and the judicial
review provision, §337(c)(7)(B)(v), together display a con-
gressional intent to withhold from the Commission author-
ity 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
——————
1 This is not a typographical error. CTIA—The Wireless Association
was the name of the petitioner. CTIA is presumably an (unpronounce-
able) acronym, but even the organization’s website does not say what it
stands for. That secret, known only to wireless-service-provider insid-
ers, we will not disclose here.
4 ARLINGTON v. FCC
Opinion of the Court
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
question whether the FCC possessed statutory authority
to adopt the 90- and 150-day timeframes. 668 F. 3d 229,
248 (CA5 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 author-
ity to administer §332(c)(7)(B)’s limitations ambiguous,”
668 F. 3d, at 250, and held that “the FCC’s interpretation
of its statutory authority” 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 “permis-
sible construction of §332(c)(7)(B)(ii) and (v) . . . entitled to
Chevron deference.” Id., at 256.
We granted certiorari, 568 U. S. ___ (2012), limited to
the first question presented: “Whether . . . a court should
apply Chevron to . . . an agency’s determination of its own
jurisdiction.” Pet. for Cert. in No. 11–1545, p. i.
II
A
As this case turns 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
confronted with two questions.” 467 U. S., at 842. First,
applying the ordinary tools of statutory construction, the
court must determine “whether Congress has directly
spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unam-
biguously 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 answer is based on a permissible construction of
Cite as: 569 U. S. ____ (2013) 5
Opinion of the Court
the statute.” Id., at 843.
Chevron is rooted in a background presumption of con-
gressional intent: namely, “that Congress, when it left
ambiguity in a statute” administered by an agency, “un-
derstood 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 pro-
vides a stable background rule against which Congress
can legislate: Statutory ambiguities will be resolved,
within the bounds of reasonable interpretation, 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.
B
The question here is whether a court must defer under
Chevron to an agency’s interpretation of a statutory ambi-
guity that concerns the scope of the agency’s statutory
authority (that is, its jurisdiction). The argument against
deference rests on the premise that there exist two distinct
classes of agency interpretations: Some interpretations—
the big, important ones, presumably—define the agency’s
“jurisdiction.” Others—humdrum, run-of-the-mill stuff—
are simply applications of jurisdiction the agency plainly
has. That premise is false, because the distinction be-
tween “jurisdictional” and “nonjurisdictional” interpreta-
tions is a mirage. No matter how it is framed, the question
a court faces when confronted with an agency’s inter-
pretation of a statute it administers 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
6 ARLINGTON v. FCC
Opinion of the Court
is due derives, perhaps, from a reflexive extension to agen-
cies of the very real division between the jurisdictional
and nonjurisdictional that is applicable to courts. In the
judicial context, there is a meaningful line: Whether the
court decided 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. Toledo, 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 jurisdictionally proper but sub-
stantively incorrect judicial decision is not ultra vires.
That is not so for agencies 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—whether framed as an incorrect
application of agency authority or an assertion of author-
ity not conferred—is always whether the agency has gone
beyond what Congress 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 pro-
posed line between “jurisdictional” and “nonjurisdictional”
agency interpretations is. Imagine the following validly-
enacted statute:
COMMON CARRIER ACT
SECTION 1. The Agency shall have jurisdiction to pro-
hibit any common carrier from imposing an unreason-
Cite as: 569 U. S. ____ (2013) 7
Opinion of the Court
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
statute:
COMMON CARRIER ACT
SECTION 1. No common carrier shall impose an un-
reasonable condition upon access to its facilities.
SECTION 2. The Agency may prescribe rules and regu-
lations necessary in the public interest to effectuate
Section 1 of this Act.
Now imagine that the Agency, invoking its Section 2
authority, 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 unreasonable condition on access to Internet
service.” By this Rule, the Agency has claimed for itself
jurisdiction that is doubly questionable: Does its authority
extend to Internet Service Providers? And does it extend
to setting prices? Yet Section 2 makes clear that Con-
gress, in petitioners’ words, “conferred interpretive power
on the agency” with respect to Section 1. Brief for Peti-
tioners in No. 1545, p. 14. Even under petitioners’ theory,
then, a court should defer to the Agency’s interpretation of
the terms “common carrier” and “unreasonable condi-
tion”—that is to say, its assertion that its “jurisdiction”
extends to regulating Internet Service Providers and
setting prices.
In the first case, by contrast, petitioners’ theory would
accord the agency no deference. The trouble with this is
that in both cases, the underlying question is exactly the
8 ARLINGTON v. FCC
Opinion of the Court
same: Does the statute give the agency authority to regu-
late Internet Service Providers and cap prices, or not?2
The reality, 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 “jurisdic-
tion”) and its exceeding authorized application of authority
that it unquestionably has. “To exceed authorized applica-
tion 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., con-
curring 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.”).
This point is nicely illustrated by our decision in Na-
tional 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
——————
2 Thedissent’s non-answer 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 15–16 (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
identical. Any difference in outcome would be arbitrary, so a sound
interpretive approach should yield none.
Cite as: 569 U. S. ____ (2013) 9
Opinion of the Court
scope of the FCC’s delegated authority or the FCC’s appli-
cation of its delegated authority, the underlying question
was the same: Did the FCC exceed the bounds of its statu-
tory 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
application of a broad statutory term can be reframed as a
questionable extension of the agency’s jurisdiction. One of
the briefs in support of petitioners explains, helpfully, that
“[j]urisdictional questions concern the who, what, where,
and when of regulatory power: which subject matters may
an agency regulate and under what conditions.” Brief for
IMLA Respondents 18–19. But an agency’s application of
its authority pursuant to statutory text answers the same
questions. Who is an “outside salesman”? What is a “pole
attachment”? Where do the “waters of the United States”
end? When must a Medicare provider challenge a reim-
bursement determination in order to be entitled to an
administrative appeal? These can all be reframed as ques-
tions about the scope of agencies’ regulatory jurisdiction—
and they are all questions to which the Chevron
framework applies. See Christopher v. SmithKline Bee-
cham Corp., 567 U. S. ___, ___, ___ (2012) (slip op., at 2, 8);
National Cable & Telecommunications Assn., supra, at
331, 333; United States v. Riverside Bayview Homes, Inc.,
474 U. S. 121, 123, 131 (1985); Sebelius v. Auburn Regional
Medical Center, 568 U. S. ___, ___, ___ (2013) (slip op., at
1, 11).
In sum, judges should not waste their time in the men-
tal acrobatics needed to decide whether an agency’s inter-
pretation of a statutory provision is “jurisdictional” or
“nonjurisdictional.” 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 asser-
tion of authority, or not. See H. Edwards & L. Elliott,
10 ARLINGTON v. FCC
Opinion of the Court
Federal Standards of Review 146 (2007) (“In practice, it
does not appear to matter whether delegated authority
is viewed as a threshold inquiry.”). The federal judge
as haruspex, sifting the entrails of vast statutory schemes
to divine whether a particular agency interpretation
qualifies as “jurisdictional,” is not engaged in reasoned
decisionmaking.
C
Fortunately, then, we have consistently held “that
Chevron applies to cases in which an agency adopts a con-
struction of a jurisdictional provision of a statute it admin-
isters.” 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 “ ‘jurisdictional 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 Commod-
ity 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 complainant on any counter-
claim by respondent.” (Emphasis added.) The CFTC,
pursuant to its broad rulemaking authority, see §12a(5),
interpreted that oblique reference to counterclaims as
granting it “the power to take jurisdiction over” not just
federal-law counterclaims, but state-law counterclaims as
well. Schor, supra, at 844. We not only deferred under
Chevron to the Commission’s “eminently reasonable . . .
interpretation of the statute it is entrusted to administer,”
but also chided the Court of Appeals for declining to afford def-
erence because of the putatively “ ‘statutory interpretation-
jurisdictional’ nature of the question at issue.” 478 U. S.,
Cite as: 569 U. S. ____ (2013) 11
Opinion of the Court
at 844–845.
Similar examples abound. We have afforded Chevron
deference to the Commerce Department’s determination
that its authority to seek antidumping duties extended to
uranium imported under contracts for enrichment ser-
vices, United States v. Eurodif S. A., 555 U. S. 305, 316
(2009); to the Interstate Commerce Commission’s view
that courts, not the Commission, possessed “initial juris-
diction with respect to the award of reparations” for un-
reasonable shipping charges, Reiter v. Cooper, 507 U. S.
258, 269 (1993) (internal quotation marks and ellipsis
omitted); and to the Army Corps of Engineers’ 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 8–9, is misplaced. In that case, the De-
partment of Labor had interpreted a statute creating a private right of
action for migrant 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 Depart-
ment of Labor as the adjudicator of private rights of action arising
under the statute.” Ibid. Adams Fruit stands for the modest proposi-
tion that the Judiciary, not any executive agency, determines “the
scope”—including the available remedies—“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 10–11, is simply perplexing: The majority opinion in that
12 ARLINGTON v. FCC
Opinion of the Court
Our cases hold that Chevron applies equally to statutes
designed to curtail the scope of agency discretion. For
instance, in Chemical Mfrs. Assn. v. Natural Resources
Defense Council, Inc., 470 U. S. 116, 123 (1985), we con-
sidered a statute prohibiting the Environmental Protec-
tion Agency from “modify[ing] any requirement of this
section as it applies 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 pollutants. Finding no “clear congressional
intent to forbid EPA’s sensible variance mechanism,” id.,
at 134, we deferred to the EPA’s construction of this ex-
press limitation on its own regulatory 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 fun-
damental 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 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 administrative agency’s construction
——————
case expressly 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 interpre-
tive authority over §332(c)(7)(B)(ii) to the FCC.” Post, at 18.
Cite as: 569 U. S. ____ (2013) 13
Opinion of the Court
of a statute that it administers,” 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 frame-
work to the FCC’s assertion that the statutory phrase
“modify any requirement” gave it authority to eliminate
rate-filing requirements, “the essential characteristic of a
rate-regulated industry,” for long-distance telephone
carriers.
The false dichotomy between “jurisdictional” and “non-
jurisdictional” 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 prescribing the meaning of am-
biguous statutory commands. The effect would be to
transfer any number of interpretive decisions—archetypal
Chevron questions, about how best to construe an ambigu-
ous term in light of competing policy interests—from the
agencies that administer the statutes to federal courts.4
——————
4 THE CHIEF JUSTICE’s discomfort with the growth of agency power,
see post, at 2–4, is perhaps understandable. But the dissent overstates
when it claims that agencies exercise “legislative power” and “judicial
power.” Post, at 2; see also post, at 16. The former is vested exclusively
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 condi-
tions”) and conduct adjudications (“This rancher’s grazing permit is
revoked for violation of the conditions”) and have done so since the
beginning of the Republic. These activities take “legislative” and
14 ARLINGTON v. FCC
Opinion of the Court
We have cautioned that “judges ought to 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.
III
A
One group of respondents contends that Chevron defer-
ence is inappropriate here because the FCC has “as-
sert[ed] jurisdiction over matters of traditional state and
local concern.” Brief for IMLA Respondents 35. But this
case has nothing to do with federalism. Section
332(c)(7)(B)(ii) explicitly supplants state authority by
requiring zoning authorities to render a decision “within a
reasonable period of time,” and the meaning of that phrase
is indisputably a question 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 federal bureaucrats, or by
unelected (and even less politically accountable) federal
judges. “[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 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
——————
“judicial” forms, but they are exercises of—indeed, under our constitu-
tional 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
Cite as: 569 U. S. ____ (2013) 15
Opinion of the Court
incoherence of the “jurisdictional-nonjurisdictional” line,
the dissent does not even attempt to defend it, see post, at
5, but proposes a much broader scope for de novo judicial
review: Jurisdictional or not, and even where a rule is at
issue and the statute contains a broad grant of rulemaking
authority, the dissent would have a court search provision-
by-provision to determine “whether [that] delegation
covers the ‘specific provision’ and ‘particular question’
before the court.” Post, at 11–12.
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
authority to determine the particular matter at issue in
the particular 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 adjudi-
cative authority has been held insufficient to support
Chevron deference for an exercise of that authority within
the agency’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
rejection 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 determination of whether the particular issue was
committed to agency discretion. It offers no standards at
——————
“misunderstand[ing]” the question presented as one of “jurisdiction.”
Post, at 5. Whatever imprecision inheres in our understanding of the
question presented derives solely from our having read it.
16 ARLINGTON v. FCC
Opinion of the Court
all to guide this open-ended hunt for congressional intent
(that is to say, for evidence of congressional intent more
specific than the conferral of general rulemaking author-
ity). It would simply punt that question back to the Court
of Appeals, presumably for application of some sort of
totality-of-the-circumstances test—which is really, of
course, not a test at all but an invitation 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 un-
predictable 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 this
case that the preconditions to deference under Chevron
are satisfied because Congress has unambiguously vested
the FCC with general authority to administer the Com-
munications Act through rulemaking and adjudication,
and the agency interpretation at issue was promulgated in
the exercise of that authority.
* * *
Those who assert that applying Chevron to “jurisdic-
tional” interpretations “leaves the fox in charge of the
henhouse” 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 estab-
lishing an arbitrary and undefinable category of agency
decisionmaking that is accorded no deference, but by taking
seriously, and applying rigorously, in all cases, statutory
limits on agencies’ authority. Where Congress has estab-
lished a clear line, the agency cannot go beyond it; and
where Congress has established an ambiguous line, the
agency can go no further than the ambiguity will fairly
allow. But in rigorously applying the latter rule, a court
need not pause to puzzle over whether the interpretive
Cite as: 569 U. S. ____ (2013) 17
Opinion of the Court
question presented is “jurisdictional.” If “the agency’s
answer is based on a permissible construction of the
statute,” that is the end of the matter. Chevron, 467 U. S.,
at 842.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 569 U. S. ____ (2013) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–1545 and 11–1547
_________________
CITY OF ARLINGTON, TEXAS, ET AL.,
PETITIONERS
11–1545 v.
FEDERAL COMMUNICATIONS
COMMISSION ET AL.
CABLE, TELECOMMUNICATIONS, AND
TECHNOLOGY COMMITTEE OF THE
NEW ORLEANS CITY COUNCIL,
PETITIONER
11–1547 v.
FEDERAL COMMUNICATIONS
COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 20, 2013]
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 interpreta-
tion of a statute it administers” is, “simply, whether the
agency has stayed within the bounds of its statutory au-
thority.” Ante, at 5–6. In this context, “the distinction
between ‘jurisdictional’ and ‘non-jurisdictional’ interpreta-
tions is a mirage.” Ante, at 5.
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
Congress delegated authority to the agency to provide
2 ARLINGTON v. FCC
Opinion of BREYER, J.
interpretations of, or to enact rules pursuant to, the stat-
ute 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 spe-
cial leeway 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
spoken clearly on the disputed question, then “that is the
end of the matter,” Chevron U. S. A. Inc. v. Natural Re-
sources 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, Congress 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 deference 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
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
programs, and underlying circumstances, that variety is
hardly surprising.) In Mead, for example, we looked to
several factors other than simple ambiguity to help deter-
mine whether Congress left a statutory gap, thus delegat-
ing 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. Elsewhere, we have assessed
“the interstitial nature of the legal question, the re-
Cite as: 569 U. S. ____ (2013) 3
Opinion of BREYER, J.
lated expertise of the Agency, the importance of the
question to administration of the statute, the complex-
ity of that administration, and the careful considera-
tion 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 Gonzalez, supra, at 265–
266. See also Gellhorn & Verkuil, Controlling Chevron-
Based Delegations, 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 ambig-
uous and can be equally helpful in determining whether
such ambiguity 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. Department 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).
Statutory purposes, including those revealed in part by
legislative and regulatory history, can be similarly rele-
vant. See Brown & Williamson Tobacco Corp., supra, at
143–147; Pension Benefit Guaranty Corporation v. LTV
Corp., 496 U. S. 633, 649 (1990); Global Crossing Tele-
communications, 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
4 ARLINGTON v. FCC
Opinion of BREYER, J.
approximate how Congress would likely have meant to
allocate interpretive law-determining authority between
reviewing court and agency. 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. The judge, considering
“traditional tools of statutory 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 ambiguity. If so, deference
is warranted. See Mead, supra, at 229. Even if not, how-
ever, sometimes an agency interpretation, 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 case before us offers an example. The relevant
statutory 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 Com-
munications Commission (FCC) argued that this pro-
vision 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 administer the Act; (2) the words are open-
ended—i.e. “ambiguous”; (3) the provision concerns an
interstitial administrative matter, in respect to which the
agency’s expertise could have an important role to play;
and (4) the matter, in context, is complex, likely making
the agency’s expertise useful in helping to answer the “rea-
sonableness” question that the statute poses. See §151
(creating the FCC); §201(b) (providing rulemaking auth-
ority); National Cable & Telecommunications Assn. v.
Brand X Internet Services, 545 U. S. 967, 980–981 (2005)
Cite as: 569 U. S. ____ (2013) 5
Opinion of BREYER, J.
(acknowledging the FCC’s authority to administer the
Act).
On the other side of the coin, petitioners point to two
statutory provisions which, they believe, require a differ-
ent conclusion—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 regarding the placement, construction, and
modification of personal wireless service facilities.”
§332(c)(7)(A). Second, a judicial review provision, says:
“Any person adversely affected by any final action or
failure to act by a State or local government or any in-
strumentality thereof that is inconsistent with this sub-
paragraph 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 pro-
vide good reason for reaching the conclusion advocated by
petitioners. The first provision begins with an exception,
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 review, a review
that applies to most government actions. Both are con-
sistent with a statutory scheme that gives States, locali-
ties, the FCC, and reviewing courts each some role to play
in the location of wireless service facilities. And neither
“expressly describ[es] an exception” to the FCC’s plenary
authority to interpret the Act. American Hospital Assn. v.
NLRB, 499 U. S. 606, 613 (1991).
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
6 ARLINGTON v. FCC
Opinion of BREYER, J.
reached the same conclusion (though for somewhat dif-
ferent reasons), and the majority affirms the lower court.
I consequently join the majority’s judgment and such por-
tions of its opinion as are consistent with what I have
written here.
Cite as: 569 U. S. ____ (2013) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–1545 and 11–1547
_________________
CITY OF ARLINGTON, TEXAS, ET AL.,
PETITIONERS
11–1545 v.
FEDERAL COMMUNICATIONS
COMMISSION ET AL.
CABLE, TELECOMMUNICATIONS, AND
TECHNOLOGY COMMITTEE OF THE
NEW ORLEANS CITY COUNCIL,
PETITIONER
11–1547 v.
FEDERAL COMMUNICATIONS
COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 20, 2013]
CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY
and JUSTICE ALITO join, dissenting.
My disagreement with the Court is fundamental. It is
also easily expressed: A court should not defer to an agency
until the court decides, on its own, that the agency is
entitled to deference. Courts defer to an agency’s interpre-
tation 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.
2 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
I
One of the principal authors of the Constitution famously
wrote that the “accumulation of all powers, legislative,
executive, and judiciary, in the same hands, . . . may justly
be pronounced the very definition of tyranny.” The Feder-
alist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison).
Although modern administrative agencies fit most com-
fortably within the Executive Branch, as a practical matter
they exercise legislative power, by promulgating regula-
tions with the force of law; executive power, by policing
compliance with those regulations; and judicial power, by
adjudicating enforcement actions and imposing sanctions
on those found to have violated their rules. The accumula-
tion 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. ___,
___ (2010) (slip op., at 18). The Framers could hardly have
envisioned today’s “vast and varied federal bureaucracy”
and the authority administrative agencies now hold over
our economic, social, and political 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) (Souter, J., dissenting), quoted in Federal
Maritime Comm’n v. South Carolina Ports Authority, 535
U. S. 743, 755 (2002). And the federal bureaucracy con-
tinues to grow; in the last 15 years, Congress has launched
more than 50 new agencies. Compare Office of the Federal
Register, United States Government Manual 1997/1998,
with Office of the Federal Register, United States Gov-
ernment 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, re-
Cite as: 569 U. S. ____ (2013) 3
ROBERTS, C. J., dissenting
quires others to create, or authorizes dozens of new enti-
ties 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, super-
vise so broad a swath of regulatory activity.” Kagan,
Presidential Administration, 114 Harv. L. Rev. 2245, 2250
(2001); see also S. Breyer, Making Our Democracy Work
110 (2010) (“the president may not have the time or will-
ingness to review [agency] decisions”). President Truman
colorfully described his power over the administrative
state by complaining, “I thought I was the president, but
when it comes to these bureaucrats, I can’t do a damn
thing.” See R. Nathan, The Administrative Presidency 2
(1986). President Kennedy once told a constituent, “I
agree with you, but I don’t know if the government will.”
See id., at 1. The collection of agencies housed outside the
traditional executive departments, including the Federal
Communications Commission, is routinely described as
the “headless fourth branch of government,” reflecting not
only the scope of their authority but their practical inde-
pendence. See, e.g., Administrative Conference of United
States, D. Lewis & J. Selin, Sourcebook of United States
Executive Agencies 11 (2012).
As for judicial oversight, agencies enjoy broad power to
construe statutory provisions over which they have been
given interpretive authority. In Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., we established a
test for reviewing “an agency’s construction of the statute
which it administers.” 467 U. S. 837, 842 (1984). If Con-
gress has “directly spoken to the precise question at issue,”
we said, “that is the end of the matter.” Ibid. A contrary
agency interpretation must give way. But if Congress has
not expressed a specific intent, a court is bound to defer to
4 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
any “permissible construction of the statute,” even if that
is not “the reading the court would have reached if the
question initially had arisen in a judicial proceeding.” Id.,
at 843, and n. 11.
When it applies, Chevron is a powerful weapon in an
agency’s regulatory arsenal. Congressional delegations to
agencies are often ambiguous—expressing “a mood rather
than a message.” Friendly, The Federal Administrative
Agencies: The Need for Better Definition of Standards, 75
Harv. L. Rev. 1263, 1311 (1962). By design or default,
Congress often fails to speak to “the precise question”
before an agency. In the absence of such an answer, an
agency’s interpretation has the full force and effect of law,
unless it “exceeds the bounds of the permissible.” Barn-
hart v. Walton, 535 U. S. 212, 218 (2002).
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. ___, ___ (2011) (SCALIA, J., concurring) (slip
op., at 3) (noting that the FCC “has repeatedly been re-
buked 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. ___, ___–___ (2012) (slip
op., at 9–10) (rejecting agency argument that would “ena-
ble the strong-arming of regulated parties into ‘voluntary
compliance’ without the opportunity for judicial review”).
What the Court says in footnote 4 of its opinion is good,
and true (except of course for the “dissent overstates”
part). Ante, at 13–14, n. 4. The Framers did divide gov-
ernmental power in the manner the Court describes,
for the purpose of safeguarding liberty. And yet . . . the
citizen confronting thousands of pages of regulations—
promulgated by an agency directed by Congress to regu-
late, say, “in the public interest”—can perhaps be excused
for thinking that it is the agency really doing the legislat-
Cite as: 569 U. S. ____ (2013) 5
ROBERTS, C. J., dissenting
ing. And with hundreds of federal agencies poking into
every nook and cranny of daily life, that citizen might also
understandably question whether Presidential oversight—
a critical part of the Constitutional plan—is always an
effective safeguard against agency overreaching.
It is against this background that we consider whether
the authority of administrative agencies should be aug-
mented even further, to include not only broad power to
give definitive answers to questions left to them by Con-
gress, 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
litigation is about. The source of the confusion is a famil-
iar culprit: the concept of “jurisdiction,” which we have
repeatedly described as a word with “ ‘many, too many,
meanings.’ ” 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 agen-
cy’s statutory authority (that is, its jurisdiction).” Ante, at
5. That is fine—until the parenthetical. The parties,
amici, and court below too often use the term “jurisdiction”
imprecisely, which leads the Court to misunderstand the
argument it must confront. That argument is not that
“there exist two distinct classes of agency interpretations,”
some “big, important ones” that “define the agency’s ‘juris-
diction,’ ” and other “humdrum, run-of-the-mill” ones that
“are simply applications of jurisdiction the agency plainly
has.” Ibid. 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 ambi-
guity at issue.
You can call that “jurisdiction” if you’d like, as petition-
ers do in the question presented. But given that the term
6 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
is ambiguous, more is required to understand its use in
that question than simply “having read it.” Ante, at 15,
n. 5. It is important to keep in mind that the term, in the
present context, has the more precise meaning noted
above, encompassing congressionally delegated authority
to issue interpretations with the force and effect of law.
See 668 F. 3d 229, 248 (CA5 2012) (case below) (“The issue
in the instant case is whether the FCC possessed statutory
authority to administer §332(c)(7)(B)(ii) and (v) by adopt-
ing the 90- and 150-day time frames”). And that has
nothing do with whether the statutory provisions at issue
are “big” or “small.”
II
“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 admin-
istrative state has not changed that duty. Indeed, the
Administrative Procedure Act, governing judicial review of
most agency action, instructs reviewing courts to decide
“all relevant questions of law.” 5 U. S. C. §706.
We do not ignore that command when we afford an
agency’s statutory interpretation Chevron deference; we
respect it. We give binding deference to permissible agency
interpretations of statutory ambiguities because Con-
gress has delegated to the agency the authority to inter-
pret 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 abdicat-
ing its constitutional duty to ‘say what the law is’ by defer-
ring to agency interpretations of law: it is simply applying
the law as ‘made’ by the authorized law-making entity”).
But before a court may grant such deference, it must on
its own decide whether Congress—the branch vested with
lawmaking authority under the Constitution—has in fact
Cite as: 569 U. S. ____ (2013) 7
ROBERTS, C. J., dissenting
delegated to the agency lawmaking power over the ambi-
guity at issue. See ante, at 4 (BREYER, J., concurring in
part and concurring in judgment) (“The question whether
Congress has delegated to an agency the authority to
provide an interpretation that carries the force of law is
for the judge to answer independently.”). Agencies are
creatures of Congress; “an agency literally has no power to
act . . . unless and until Congress confers power upon it.”
Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355, 374
(1986). Whether Congress has conferred such power is the
“relevant question[ ] of law” that must be answered before
affording Chevron deference. 5 U. S. C. §706.
III
A
Our precedents confirm this conclusion—beginning with
Chevron itself. In Chevron, the EPA promulgated a regu-
lation interpreting the term “stationary sources” in the
Clean Air Act. 467 U. S., at 840 (quoting 42 U. S. C.
§7502(b)(6)(1982 ed.)). An environmental group petitioned
for review of the rule, challenging it as an impermissible
interpretation of the Act. 467 U. S., at 841, 859. Finding
the statutory text “not dispositive” and the legislative
history “silent on the precise issue,” we upheld the 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 business providing their own resolution on
the basis of their “personal policy preferences.” Ibid.
Instead, the “agency to which Congress ha[d] delegated
policymaking responsibilities” was the appropriate politi-
8 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
cal actor to resolve the competing interests at stake, “within
the limits of that delegation.” 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 regulation.” Id., at 843–844 (emphasis added); see id.,
at 844 (discussing “the legislative delegation to an agency
on a particular question” (emphasis added)). We deferred
to the EPA’s interpretation of “stationary sources” based
on our conclusion that the agency had been “charged with
responsibility for administering the provision.” Id., at 865
(emphasis added).
B
We have never faltered in our understanding of this
straightforward principle, that whether a particular agency
interpretation warrants Chevron deference turns on the
court’s determination whether Congress has delegated to
the agency the authority to interpret the statutory ambi-
guity at issue.
We made the point perhaps most clearly in Adams Fruit
Co. v. Barrett, 494 U. S. 638 (1990). In that case, the
Department of Labor contended the Court should defer to
its interpretation of the scope of the private right of action
provided by the Migrant and Seasonal Agriculture Worker
Protection Act (AWPA), 29 U. S. C. §1854, against employ-
ers who intentionally violated the Act’s motor vehicle
safety provisions. We refused to do so. Although “as an
initial matter” we rejected the idea that Congress left a
“statutory ‘gap’ ” for the agency to fill, we reasoned that if
the “AWPA’s language establishing a private right of
action is ambiguous,” the Secretary of Labor’s interpreta-
tion of its scope did not warrant Chevron deference. 494
Cite as: 569 U. S. ____ (2013) 9
ROBERTS, C. J., dissenting
U. S., at 649.
In language directly applicable to the question before us,
we explained that “[a] precondition to deference under
Chevron is a congressional delegation of administrative
authority.” Ibid. Although “Congress clearly envisioned,
indeed expressly mandated, a role for the Department of
Labor in administering the statute by requiring the Secre-
tary to promulgate standards implementing AWPA’s
motor vehicle provisions,” 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 executive interpretations” of the en-
forcement provisions to resolve ambiguities “surrounding
the scope of AWPA’s judicially enforceable remedy.” Ibid.Without questioning the principle that agency determina-
tions “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., 411 U. S. 726, 745 (1973)).
Our subsequent cases follow the same approach. In
United States v. Mead Corp., supra, for example, Chevron
deference turned on whether Congress had delegated to
the agency authority to interpret the statutory ambiguity
by a particular means. The Customs Service had issued a
“classification ruling,” interpreting the term “diaries” in a
tariff schedule to include “day planners” of the type Mead
imported, and on that basis subjected the planners to a
four-percent tariff. Mead protested the imposition of the
tariff, the Customs Service claimed 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
interpretative choices” to which Chevron deference applies
is defined by congressional intent. Id., at 229. Chevron
deference, we said, rests on a recognition that Congress
10 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
has delegated to an agency the interpretive authority to
implement “a particular provision” or answer “ ‘a particu-
lar question.’ ” Ibid. (quoting Chevron, 467 U. S., at 844).
An agency’s interpretation of “a particular statutory provi-
sion” 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 pro-
mulgated in the exercise of that authority.” 533 U. S., at226–227.
The Court did not defer to the agency’s views but in-
stead determined that Congress had not delegated inter-
pretive authority to the Customs Service to definitively
construe the tariff schedule through classification rulings.
Neither the statutory authorization for the classification
rulings, nor the Customs Service’s practice in issuing such
rulings, “reasonably suggest[ed] that Congress ever
thought of [such] classification rulings as deserving the
deference claimed for them.” Id., at 231. And in the ab-
sence of such a delegation, we concluded the interpreta-
tions adopted in those rulings were “beyond the Chevron
pale.” Id., at 234.
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 inter-
pretation of the phrase “legitimate medical purpose” in the
Controlled Substances Act (CSA) to exclude the prescrib-
ing and dispensing of controlled substances for the pur-
pose 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 promulgate rules with the force of law. Ibid.;
see id., at 281 (SCALIA, J., dissenting). Nevertheless, the
Cite as: 569 U. S. ____ (2013) 11
ROBERTS, C. J., dissenting
Court explained, “Chevron deference . . . is not accorded
merely because the statute is ambiguous and an adminis-
trative official is involved.” Id., at 258. The regulation
advancing the interpretation, we said, “must be promul-
gated pursuant to authority 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
registration and control of the manufacture, distribution,
and dispensing of controlled substances,” 21 U. S. C. §821,
or “for the efficient execution of his functions under [the
CSA],” §871(b). After considering the text, structure, and
purpose of the Act, the Court concluded on its own that
interpreting “legitimate medical purpose” fell under nei-
ther delegation. Gonzales, 546 U. S., at 258–269. Because
the regulation “was not promulgated pursuant to the
Attorney General’s authority, its interpretation of ‘legiti-
mate medical purpose’ d[id] not receive Chevron defer-
ence.” 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
Congress has delegated authority to definitively interpret
a particular ambiguity in a particular manner. Whether
Congress has done so must be determined by the court on
its own before Chevron can apply. See H. Edwards, L.
Elliot, & M. Levy, Federal Courts Standards of Review 168
(2d ed. 2013) (“a court decides de novo whether an agency
has acted within the bounds of congressionally delegated
authority” (citing Mead, 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 antecedent to deference, as Mead insists, it can-
not be that courts should defer to an agency’s views on
12 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
whether a delegation has taken place”).
In other words, we do not defer to an agency’s interpre-
tation 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 ques-
tion is “beyond the Chevron pale.” Mead, supra, at 234.
IV
Despite these precedents, the FCC argues that a court
need only locate an agency and a grant of general rule-
making 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 authority. If Congress intends to
exempt part of the statute from the agency’s interpretive
authority, the FCC says, Congress “can ordinarily be
expected to state that intent explicitly.” Brief for Federal
Respondents 30 (citing American Hospital Assn. 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 appropriate question is whether the delegation covers
the “specific provision” and “particular question” before
the court. Chevron, 467 U. S., at 844. A congressional
grant of authority over some portion of a statute does not
necessarily mean that Congress granted the agency inter-
pretive authority over all its provisions. See Adams Fruit,
494 U. S., at 650.
An example that might highlight the point concerns
statutes that parcel out authority to multiple agencies,
which “may be the norm, rather than an exception.”
Gersen, Overlapping and Underlapping Jurisdiction in
Administrative Law, 2006 S. Ct. Rev. 201, 208; see, e.g.,
Gonzales, 546 U. S, at 250–251 (describing shared author-
Cite as: 569 U. S. ____ (2013) 13
ROBERTS, C. J., dissenting
ity over the CSA between 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 implementing the Americans with Disa-
bilities Act “is split primarily among three Government
agencies”). The Dodd-Frank Wall Street Reform and
Consumer Protection Act, for example, authorizes rule-
making by at least eight different agencies. See Con-
gressional Research Service, C. Copeland, Rulemaking
Requirements and Authorities in the Dodd-Frank Wall
Street Reform and Consumer Protection Act 7 (2010).
When presented with an agency’s interpretation of such a
statute, a court cannot simply ask whether the statute is
one that the agency administers; the question is whether
authority over the particular ambiguity at issue has been
delegated to the particular agency.
By the same logic, even when Congress provides inter-
pretive 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 delega-
tion extends. A general delegation to the agency to admin-
ister 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 particu-
lar provisions from that authority, that exemption must be
respected, and the determination whether Congress has
done so is for the courts alone.
The FCC’s argument that Congress “can ordinarily be
expected to state that intent explicitly,” Brief for Federal
Respondents 30 (citing 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 con-
sidered it. It was in the process of “employing the tradi-
tional tools of statutory construction” that the Court said
it would have expected Congress to speak more clearly if it
14 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
had intended to exclude an entire subject area—employee
units for collecting bargaining—from the NLRB’s general
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 peti-
tioner.” Id., at 609–614. To be sure, the Court also noted
that “[e]ven if we could find any ambiguity in [the provi-
sion] after employing the traditional tools of statutory
construction, we would still defer to Board’s reasonable
interpretation.” Id., at 614 (emphasis added). But that
single sentence of dictum cannot carry the day for the FCC
here.
V
As the preceding analysis makes clear, I do not under-
stand petitioners to ask the Court—nor do I think it
necessary—to draw a “specious, but scary-sounding” line
between “big, important” interpretations on the one hand
and “humdrum, run-of-the-mill” ones on the other. Ante,
at 5, 12. Drawing such a line may well be difficult. Dis-
tinguishing between whether an agency’s interpretation of
an ambiguous term is reasonable and whether that term is
for the agency to interpret is not nearly so difficult. It
certainly did not confuse the FCC in this proceeding.
Compare In re Petition for Declaratory Ruling, 24 FCC
Rcd. 13994, 14000–14003 (2009) (addressing the latter
question), with id., at 14003–14015 (addressing the for-
mer). 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 author-
Cite as: 569 U. S. ____ (2013) 15
ROBERTS, C. J., dissenting
ity, then the line is one the Court must draw.
The majority’s hypothetical Common Carrier Acts do not
demonstrate anything different. Ante, at 6–8. The major-
ity states that in its second Common Carrier Act, Section 2
makes clear that Congress “ ‘conferred interpretative
power on the agency’ ” to interpret the ambiguous terms
“common carrier” and “unreasonable condition.” Ante,
at 7 (quoting Brief for Petitioners in No. 1545, p. 14).
Thus, it says, under anyone’s theory a court must defer to
the agency’s reasonable interpretations of those terms.
Correct.
The majority claims, however, that “petitioners’ theory
would accord the agency no deference” in its interpretation
of the same ambiguous terms in the first Common Carrier
Act. Ante, at 7–8. But as I understand petitioners’
argument—and certainly in my own view—a court, in both
cases, need only decide for itself whether Congress has
delegated to the agency authority to interpret the ambigu-
ous 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 Com-
mon Carrier Act is like most agencies’ organic statutes, I
have no reason to doubt that the agency would likewise
have interpretive authority over the same ambiguous
terms, and therefore be entitled to deference in con-
struing them, just as with the second Common Carrier
Act. There is no new “test” to worry about, cf. ante, at 16;
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
16 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
second hypothetical Congress has more carefully defined
the agency’s authority than the first. Whatever standard
of review applies, it is more difficult to interpret an un-
clear statute than a clear one. My point is simply that
before a court can defer to the agency’s interpretation of
the ambiguous terms in either Act, it must determine for
itself that Congress has delegated authority to the agency
to issue those interpretations with the force of law.
The majority also expresses concern that adopting peti-
tioners’ position would undermine Chevron’s stable back-
ground rule against which Congress legislates. Ante, at 5.
That, of course, begs the question of what that stable
background rule is. See Merrill & Hickman, Chevron’s
Domain, 89 Geo. L. Rev. 833, 910 (2001) (“Courts have
never deferred to agencies with respect to questions such
as whether Congress has delegated to an agency the power
to act with the force of law through either legislative rules
or binding adjudications. Similarly, it has never been
maintained that Congress would want courts to give Chev-
ron deference to an agency’s determination 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” (foot-
note omitted)).
VI
The Court sees something nefarious behind the view
that courts must decide on their own whether Congress
has delegated interpretative authority to an agency, before
deferring to that agency’s interpretation of law. What is
afoot, according to the Court, is a judicial power-grab, with
nothing less than “Chevron itself ” as “the ultimate target.”
Ante, at 12.
The Court touches on a legitimate concern: Chevron
importantly guards against the Judiciary arrogating to
itself policymaking properly left, under the separation of
Cite as: 569 U. S. ____ (2013) 17
ROBERTS, C. J., dissenting
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 delega-
tion 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. ___, ___ (2012) (slip op., at 8). In the
present context, that means ensuring that the Legislative
Branch has in fact delegated lawmaking power to an
agency within the Executive Branch, before the Judiciary
defers to the Executive on what the law is. That concern
is heightened, not diminished, by the fact that the admin-
istrative agencies, as a practical matter, draw upon a
potent brew of executive, legislative, and judicial power.
And it is heightened, not diminished, by the dramatic
shift in power over the last 50 years from Congress to the
Executive—a shift effected through the administrative
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.
* * *
In these cases, the FCC issued a declaratory ruling
interpreting the term “reasonable period of time” in 47
U. S. C. §332(c)(7)(B)(ii). The Fifth Circuit correctly rec-
18 ARLINGTON v. FCC
ROBERTS, C. J., dissenting
ognized that it could not apply Chevron deference to the
FCC’s interpretation unless the agency “possessed statu-
tory 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 Con-
gress delegated interpretive 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.