City of Arlington v. Fed. Commc'ns Comm'n

(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., at

226–227.

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.