CITY OF ARLINGTON, TX v. FCC

SUPREME COURT OF THE UNITED STATES

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Nos. 11–1545 and 11–1547

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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 interpretation of a statute it administers” is, “simply, whether the agency has stayed within the bounds of its statutory authority.” Ante, at 5–6. In this context, “the distinction between ‘jurisdictional’ and ‘non-jurisdictional’ interpretations 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 interpretations of, or to enact rules pursuant to, the statute at issue—interpretations or rules that carry with them “the force of law.” United States v. Mead Corp., 533 U. S. 218, 229 (2001) . If so, the reviewing court must give special 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 Resources Defense Council, Inc., 467 U. S. 837, 842 (1984) . The agency is due no deference, for Congress has left no gap for the agency to fill. Id., at 842–844. If, on the other hand, 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 –269 (2006); Mead, supra, at 229.

I say that the existence of statutory ambiguity is sometimes not enough to warrant the conclusion that Congress has left a deference-warranting gap for the agency to fill because 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 determine whether Congress left a statutory gap, thus delegating to the agency the authority to fill that gap with an interpretation that would carry “the force of law.” 533 U. S., at 229–231. Elsewhere, we have assessed

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

The subject matter of the relevant provision—for instance, its distance from the agency’s ordinary statutory duties or its falling within the scope of another agency’s authority—has also proved relevant. See 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 ambiguous 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 –242 (2004); Zuni Public School Dist. No. 89 v. Department of Education, 550 U. S. 81 –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 relevant. See Brown & Williamson Tobacco Corp., supra, at 143–147; Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 649 (1990) ; Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U. S. 45 –49 (2007). See also AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366 –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 approximate how Congress would likely have meant to allocate interpretive law-determining authority between reviewing court and agency. 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. 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, however, 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 Communications Commission (FCC) argued that this provision granted it a degree of leeway in determining the amount of time that is reasonable. Many factors favor the agency’s view: (1) the language of the Telecommunications Act grants the FCC broad authority (including rulemaking authority) to 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 “reasonableness” question that the statute poses. See §151 (creating the FCC); §201(b) (providing rulemaking authority); National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967 –981 (2005) (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 different 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 instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.” §332(c)(7)(B)(v).

In my view, however, these two provisions cannot provide good reason for reaching the conclusion advocated by 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 simply sets forth a procedure for judicial review, a review that applies to most government actions. Both are consistent with a statutory scheme that gives States, localities, the FCC, and reviewing courts each some role to play in the location of wireless service facilities. And neither “expressly 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 reached the same conclusion (though for somewhat different reasons), and the majority affirms the lower court. I consequently join the majority’s judgment and such portions of its opinion as are consistent with what I have written here.

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, Washington, 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

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Nos. 11–1545 and 11–1547

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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 regulatory authority (that is, its jurisdiction) is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) .

I

Wireless telecommunications networks require towers and antennas; proposed sites for those towers and antennas 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, construction, and modification of such facilities,” Rancho Palos Verdes v. Abrams, 544 U. S. 113, 115 (2005) , and incorporated those limitations into the Communications Act of 1934, see 110Stat. 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, 52Stat. 588, codified at 47 U. S. C. §201(b). Of course, that rulemaking authority extends to the subsequently added portions of the Act. See AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366 –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 applications “within a reasonable period of time after the request is duly filed.” Two other features of §332(c)(7) are relevant. First, subparagraph (A), known as the “saving clause,” 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 competent jurisdiction.”

In theory, §332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities. But in practice, wireless providers often faced long delays. In July 2008, CTIA—The Wireless 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 responding to CTIA’s petition. In re Petition for Declaratory Ruling, 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 advanced 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 presumptively (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 Commission 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 congressional intent to withhold from the Commission authority to interpret the limitations in §332(c)(7)(B). Asserting that ground of objection, the cities of Arlington and San Antonio, Texas, petitioned for review of the Declaratory Ruling in the Court of Appeals for the Fifth Circuit.

Relying on Circuit precedent, the Court of Appeals held that the Chevron framework applied to the threshold question whether the FCC possessed statutory authority to adopt the 90and 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 authority to administer §332(c)(7)(B)’s limitations ambiguous,” 668 F. 3d, at 250, and held that “the FCC’s interpretation of its statutory authority” was a permissible construction of the statute. Id., at 254. On the merits, the court upheld the presumptive 90and 150-day deadlines as a “permissible construction of §332(c)(7)(B)(ii) and (v) . . . entitled to Chevron deference.” Id., at 256.

We granted certiorari, 568 U. S. ___ (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 unambiguously expressed intent of Congress.” Id., at 842–843. But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id., at 843.

Chevron is rooted in a background presumption of congressional intent: namely, “that Congress, when it left ambiguity in a statute” administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 –741 (1996). Chevron thus provides 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 ambiguity 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 between “jurisdictional” and “nonjurisdictional” interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it 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 is due derives, perhaps, from a reflexive extension to agencies 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 –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 –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 substantively 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 authority 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 proposed 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 prohibit any common carrier from imposing an unreasonable 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 unreasonable condition upon access to its facilities.

Section 2. The Agency may prescribe rules and regulations 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 Congress, in petitioners’ words, “conferred interpretive power on the agency” with respect to Section 1. Brief for Petitioners 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 condition”—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 same: Does the statute give the agency authority to regulate 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 “jurisdiction”) and its exceeding authorized application of authority that it unquestionably has. “To exceed authorized application is to exceed authority. Virtually any administrative action can be characterized as either the one or the other, depending on how generally one wishes to describe the ‘authority.’ ” Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381 (1988) (Scalia, J., concurring in judgment); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 29 (1983) (“Administrative application of law is administrative formulation of law whenever it involves elaboration of the statutory norm.”).

This point is nicely illustrated by our decision in National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U. S. 327 (2002) . That case considered whether the FCC’s “jurisdiction” to regulate the rents utility-pole owners charge for “pole attachments” (defined as attachments by a cable television system or provider of telecommunications service) extended to attachments that provided both cable television and high-speed Internet access (attachments for so-called “commingled services”). Id., at 331–336. We held, sensibly, that Chevron applied. 534 U. S., at 333, 339. Whether framed as going to the scope of the FCC’s delegated authority or the FCC’s application of its delegated authority, the underlying question was the same: Did the FCC exceed the bounds of its statutory authority to regulate rents for “pole attachments” when it sought to regulate rents for pole attachments providing commingled services?

The label is an empty distraction because every new 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 reimbursement determination in order to be entitled to an administrative appeal? These can all be reframed as questions about the scope of agencies’ regulatory jurisdiction— and they are all questions to which the Chevron framework applies. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___, ___ (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 mental acrobatics needed to decide whether an agency’s interpretation 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 assertion of authority, or not. See H. Edwards & L. Elliott, Federal Standards of Review 146 (2007) (“In practice, it does not appear to matter whether delegated authority is viewed as a threshold 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 construction of a jurisdictional provision of a statute it administers.” 1 R. Pierce, Administrative Law Treatise §3.5, p. 187 (2010). One of our opinions explicitly says that no “exception exists to the normal [deferential] standard of review” for “ ‘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 Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986) . That case involved a CFTC interpretation of 7 U. S. C. §18(c), which provides that before the Commission takes action on a complaint, the complainant must file a bond to cover “any reparation award that may be issued by the Commission against the complainant on any counterclaim 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 deference because of the putatively “ ‘statutory interpretation-jurisdictional’ nature of the question at issue.” 478 U. S., at 844–845.

Similar examples abound. We have afforded Chevron deference to the Commerce Department’s determination that its authority to seek antidumping duties extended to uranium imported under contracts for enrichment services, United States v. Eurodif S. A., 555 U. S. 305, 316 (2009) ; to the Interstate Commerce Commission’s view that courts, not the Commission, possessed “initial jurisdiction with respect to the award of reparations” for unreasonable shipping charges, Reiter v. Cooper, 507 U. S. 258, 269 (1993) (internal quotation marks and ellipsis omitted); and to the Army Corps of 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 extends 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

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 considered a statute prohibiting the Environmental Protection 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 express 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 –234 (1986).

The U. S. Reports are shot through with applications of Chevron to agencies’ constructions of the scope of their own jurisdiction. And we have applied Chevron where concerns about agency self-aggrandizement are at their apogee: in cases where an agency’s expansive construction of the extent of its own power would have wrought a fundamental change in the regulatory scheme. In FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000) , the threshold question was the “appropriate framework for analyzing” the FDA’s 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 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 framework 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 “nonjurisdictional” 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 ambiguous statutory commands. The effect would be to transfer any number of interpretive decisions—archetypal Chevron questions, about how best to construe an ambiguous term in light of competing policy interests—from the agencies that administer the statutes to federal courts. 4 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 deference is inappropriate here because the FCC has “assert[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 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 adjudicative 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 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 authority). 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 unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos. There is no need to wade into these murky waters. It suffices to decide this case that the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications 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 “jurisdictional” 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 establishing 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 established 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 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.

__________________________________

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

2  The dissent’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.

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 Department 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 Department of Labor as the adjudicator of private rights of action arising under the statute.” Ibid. Adams Fruit stands for the modest proposition 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 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 interpretive authority over §332(c)(7)(B)(ii) to the FCC.” Post, at 18.

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 conditions”) 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 “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.” Art. II, §1, cl. 1.

5  The dissent—apparently with no attempt at irony—accuses us of “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.

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 interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.

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 Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.

The administrative state “wields vast power and touches almost every aspect of daily life.” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (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 continues 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 Government Manual 2012. And more are on the way. See, e.g., Congressional Research Service, C. Copeland, New Entities Created Pursuant to the Patient Protection and Affordable Care Act 1 (2010) (The PPACA “creates, requires others to create, or authorizes dozens of new entities to implement the legislation”).

Although the Constitution empowers the President to keep federal officers accountable, administrative agencies enjoy in practice a significant degree of independence. As scholars have noted, “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” Kagan, 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 willingness 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 independence. 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 Congress has “directly spoken to the precise question at issue,” we said, “that is the end of the matter.” Ibid. A contrary agency interpretation must give way. But if Congress has not expressed a specific intent, a court is bound to defer to any “permissible construction of the statute,” even if that is not “the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id., at 843, and n. 11.

When it applies, Chevron is a powerful weapon in an agency’s regulatory arsenal. Congressional delegations to agencies are often ambiguous—expressing “a mood rather than a message.” Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv. L. Rev. 1263, 1311 (1962). By design or default, 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.” Barnhart 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 growing 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 rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends”); Sackett v. EPA, 566 U. S. ___, ___–___ (2012) (slip op., at 9–10) (rejecting agency argument that would “enable 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 governmental 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 regulate, say, “in the public interest”—can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight—a critical part of the 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 augmented even further, to include not only broad power to give definitive answers to questions left to them by Congress, but also the same power to decide when Congress has given them that power.

Before proceeding to answer that question, however, it is necessary to sort through some confusion over what this litigation is about. The source of the confusion is a familiar 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 agency’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 ‘jurisdiction,’ ” 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 ambiguity at issue.

You can call that “jurisdiction” if you’d like, as petitioners do in the question presented. But given that the term is ambiguous, more is required to understand its use in that question than simply “having read it.” Ante, at 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 adopting the 90and 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 administrative 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 Congress has delegated to the agency the authority to interpret those ambiguities “with the force of law.” United States v. Mead Corp., 533 U. S. 218, 229 (2001) ; see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27–28 (1983) (“the court is not abdicating its constitutional duty to ‘say what the law is’ by deferring to agency interpretations of law: it is simply applying the law as ‘made’ by the 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 delegated to the agency lawmaking power over the ambiguity 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 regulation 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 political 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 ambiguity at issue.

We made the point perhaps most clearly in Adams Fruit Co. v. Barrett, 494 U. S. 638 (1990) . In that case, the 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 employers 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 interpretation of its scope did not warrant Chevron deference. 494 U. S., at 649.

In language directly applicable to the question before us, we explained that “[a] precondition to deference under 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 Secretary 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 enforcement provisions to resolve ambiguities “surrounding the scope of AWPA’s judicially enforceable remedy.” Ibid. Without questioning the principle that agency determinations “within the scope of delegated authority are entitled to deference,” we explained that “it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’ ” Ibid. (quoting Federal Maritime Comm’n v. Seatrain Lines, Inc., 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 has delegated to an agency the interpretive authority to implement “a particular provision” or answer “ ‘a particular question.’ ” Ibid. (quoting Chevron, 467 U. S., at 844). An agency’s interpretation of “a particular statutory provision” thus qualifies for Chevron deference only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was 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 instead determined that Congress had not delegated interpretive 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 absence of such a delegation, we concluded the interpretations 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 interpretation of the phrase “legitimate medical purpose” in the Controlled Substances Act (CSA) to exclude the prescribing and dispensing of controlled substances for the purpose of assisting suicide. Id., at 254, 258. No one disputed that “legitimate medical purpose” was “ambiguous in the relevant sense.” Id., at 258. Nor did any Justice dispute that the Attorney General had been granted the power in the CSA to promulgate rules with the force of law. Ibid.; see id., at 281 (Scalia, J., dissenting). Nevertheless, the Court explained, “Chevron deference . . . is not accorded merely because the statute is ambiguous and an administrative official is involved.” Id., at 258. The regulation advancing the interpretation, we said, “must be promulgated 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 neither delegation. Gonzales, 546 U. S., at 258–269. Because the regulation “was not promulgated pursuant to the Attorney General’s authority, its interpretation of ‘legitimate medical purpose’ d[id] not receive Chevron deference.” Id., at 268.

Adams Fruit, Mead, and Gonzales thus confirm that Chevron deference is based on, and finds legitimacy as, a congressional delegation of interpretive authority. An agency interpretation warrants such deference only if 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 cannot be that courts should defer to an agency’s views on whether a delegation has taken place”).

In other words, we do not defer to an agency’s interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide. Simply put, that question is “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 rulemaking authority over a statute. Chevron deference then applies, it contends, to the agency’s interpretation of any ambiguity in the Act, including ambiguity in a provision said to carve out specific provisions from the agency’s general rulemaking 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 interpretive 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-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 Disabilities Act “is split primarily among three Government agencies”). The Dodd-Frank Wall Street Reform and Consumer Protection Act, for example, authorizes rulemaking by at least eight different agencies. See 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 interpretive authority to a single agency, a court must decide if the ambiguity the agency has purported to interpret with the force of law is one to which the congressional delegation extends. A general delegation to the agency to administer the statute will often suffice to satisfy the court that Congress has delegated interpretive authority over the ambiguity at issue. But if Congress has exempted particular provisions from that authority, that exemption must be respected, and 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 considered it. It was in the process of “employing the traditional tools of statutory construction” that the Court said it would have expected Congress to speak more clearly if it had intended to exclude an entire subject area—employee units for collecting bargaining—from the NLRB’s general rulemaking authority. Id., at 613, 614. The Court concluded, after considering the language, structure, policy, and legislative history of the Act on its own—without deferring to the agency—that the meaning of the statute was “clear and contrary to the meaning advanced by petitioner.” Id., at 609–614. To be sure, the Court also noted that “[e]ven if we could find any ambiguity in [the provision] after 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 understand petitioners to ask the Court—nor do I think it necessary—to draw a “specious, but scary-sounding” line between “big, important” interpretations on the one hand and “humdrum, run-of-the-mill” ones on the other. Ante, at 5, 12. Drawing such a line may well be difficult. Distinguishing between whether an agency’s interpretation of an ambiguous term is reasonable and whether that term is for the agency to 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 former). Nor did it confound the Fifth Circuit. Compare 668 F. 3d, at 247–254 (deciding “whether the FCC possessed statutory authority to administer §332(c)(7)(B)(ii)”), with id., at 254–260 (considering “whether the 90and 150-day time frames themselves also pass muster under Chevron”). More importantly, if the legitimacy of Chevron deference is based on a congressional delegation of interpretive authority, then the line is one the Court must draw.

The majority’s hypothetical Common Carrier Acts do not demonstrate anything different. Ante, at 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 ambiguous terms, before affording the agency’s interpretation Chevron deference.

For the second Common Carrier Act, the answer is easy. The majority’s hypothetical Congress has spoken clearly and specifically in Section 2 of the Act about its delegation of authority to interpret Section 1. As for the first Act, it is harder to analyze the question, given only one section of a presumably much larger statute. But if the first Common Carrier Act is like most agencies’ organic statutes, I have no 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 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 unclear 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 petitioners’ position would undermine Chevron’s stable background 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 Chevron 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” (footnote 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 powers, to the Executive. But there is another concern at play, no less firmly rooted in our constitutional structure. That is the obligation of the Judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well.

An agency’s interpretive authority, entitling the agency to judicial deference, acquires its legitimacy from a delegation of lawmaking power from Congress to the Executive. Our duty to police the boundary between the Legislature and the Executive is as critical as our duty to respect that between the Judiciary and the Executive. See Zivotofsky v. Clinton, 566 U. S. ___, ___ (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 administrative 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 recognized that it could not apply Chevron deference to the FCC’s interpretation unless the agency “possessed statutory authority to administer §332(c)(7)(B)(ii),” but it erred by granting Chevron deference to the FCC’s view on that antecedent question. See 668 F. 3d, at 248. Because the court should have determined on its own whether Congress delegated 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.

Print this transcript Transcript: 

ORAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-1545, City of Arlington, Texas v. The Federal Communications Commission and the consolidated case.

Mr. Goldstein.

Thomas C. Goldstein: Mr. Chief Justice, thank you very much.

May it please the Court:

This case can get complicated quickly because the word “ jurisdiction ” means a lot of different things to a lot of different people in a lot of different contexts, and the parties have advanced both broad and narrow theories for resolving the case.

So the thing I can do most helpfully at the beginning, I think, is to frame where I believe the real dispute in the case lies.

The FCC claims the authority to interpret Section 332(c)(7) of the Communications Act with the force of law, and my argument today is limited to the question -- that threshold jurisdictional question, which we call interpretive jurisdiction, Iowa Utilities called it underlying jurisdiction, law professors like to call it Chevron Step Zero, but that's what I'm focused on.

And the Fifth Circuit said that on that question, the FCC gets Chevron deference.

And that is, it gets to decide whether it has the authority to interpret--

Justice Ruth Bader Ginsburg: Mr. Goldstein, this case has been presented in a very complicated way, but it seems to me that what we're dealing with is a rule adopted by the Commission, and the Commission's rule-making power, as you know, is very broad.

They have power to make the rules needed to carry out the provisions of the Act.

And 332 is -- counts as a provision of the Act.

So why isn't it just a proper implementation of that rule-making authority?

Thomas C. Goldstein: --Well, Justice Ginsburg, the question on which you granted certiorari was how to decide that question, not what is the answer to that question.

What the Fifth Circuit did, acknowledging a circuit conflict, was decided that the FCC's assertion that you are right is itself entitled to Chevron deference.

Justice Stephen G. Breyer: All right.

Suppose you win on that, okay?

Thomas C. Goldstein: Yes.

Justice Stephen G. Breyer: Or I -- I grant you, I don't see any reason for that.

The question is just whether Congress intended them to have a degree of discretionary power.

But all the arguments that we hear still count against you.

So if you want to go into the Chevron Step Zero or Step minus alpha 13.6, I mean, fine.

But I mean, at some point, I will hope you -- I hope you will go into what I'd call the question of, we have a statute just as Justice Ginsburg said.

It's an expert statute.

It is a statute in an agency that has all kinds of discretionary authority.

It includes an important substantive question about what the relation is with the cable television in this area -- post -- not cable, but, you know, the broadcast posts.

And so all these factors here which suggest, of course, Congress, which is not expert, would have wanted the FCC to figure this one out.

Thomas C. Goldstein: Okay.

I--

Justice Stephen G. Breyer: That -- at some point -- you don't have to go into it at all if you don't want to, but I just want to put that on the table.

[Laughter]

Thomas C. Goldstein: --Justice Breyer, I do want to talk about it.

I do--

Justice Stephen G. Breyer: You don't have to talk about it now, but you can talk about it whenever you want.

[Laughter]

Thomas C. Goldstein: --I appreciate it.

I'd like to talk about the things you want to hear me talk about.

I am very conscious of the fact, let me say, that the Court limited this grant of certiorari to the first question presented, which was the abstract Chevron question, so I just don't want to jump the gun--

Justice Ruth Bader Ginsburg: But the abstract question really isn't presented.

I mean, just to follow on what I asked you first, here is a phrase, “ a reasonable time ”.

And the Commission interprets that phrase in a reasonable way.

Why is this case any more complicated than that?

Why doesn't the FCC have the authority to interpret that term, within a reasonable time?

Thomas C. Goldstein: --Justice Ginsburg, you and Justice Breyer have both asked me to turn to that question, so I'm going to do it.

The only point I'm making is that all of these questions assume that we are right on the question presented, which I think we obviously are.

So I'm happy to move on, but I just did not want to hurry past the legal question on which you granted certiorari.

Justice Antonin Scalia: Well, don't, because I don't -- I don't think it's so clear.

[Laughter]

Thomas C. Goldstein: All right.

Justice Antonin Scalia: Look, what you've told us is jurisdiction means a lot of things, but what you mean by it is real jurisdiction, right?

Thomas C. Goldstein: I mean -- what I mean by it--

Justice Antonin Scalia: Chevron Step Zero jurisdiction.

That doesn't clarify things very much for me.

What if -- what if the statute in this case said, The FCC shall have no jurisdiction to establish time limits within which the States must act?

Thomas C. Goldstein: --Yes.

Justice Antonin Scalia: Okay?

Would that be a jurisdictional question?

Thomas C. Goldstein: That would.

That would be--

Justice Antonin Scalia: Okay.

What if the statute just said, The FCC shall not establish time limits within which the States must act.

Is that jurisdictional?

Thomas C. Goldstein: --That is a different kind of jurisdictional question.

It is a jurisdictional question.

Justice Scalia, so maybe I can help you, just on the question of what I'm talking about and whether I can draw -- whether I can draw my line, or whether it's just malleable, and every court's going to get drawn into it, which I suspect you may be concerned about.

Okay?

The kind of jurisdiction I'm talking about is what you called in your Iowa Utilities opinion for the Court “ underlying jurisdiction ”, and in Iowa Utilities, in the discussion of the FCC's underlying jurisdiction, you undertook the judicial task of looking at the words of the statute and figuring out that Congress did intend, along the lines of the theory that Justice Ginsburg just articulated, that the FCC did have the power to implement those provisions of the '96 Act.

And as we have rehearsed, to be honest, every one of your Chevron opinions deals with this question: Just, did the agency have the power to interpret this statutory provision with the force of law?

You and all of your colleagues from the Court have always decided that question de novo.

Justice Antonin Scalia: I -- I don't think so.

In fact, I think we have said in -- in a number of opinions -- and certainly I have said in a concurrence -- that the jurisdictional question, like any other question, an alleged jurisdictional question, like any other one, is to be decided with deference to the agency.

Now, if you talk -- if you want to limit your proposal--

Thomas C. Goldstein: I do.

Justice Antonin Scalia: --to the -- to the entry question--

Thomas C. Goldstein: I do.

Justice Antonin Scalia: --of whether the FCC has the jurisdiction to administer the Federal Communications Act, I agree with you.

I will decide that without listening to the FCC.

But that's -- that's a good deal short of whether, given that it does have jurisdiction to administer the Federal Communications Act, its implementation of this particular provision goes beyond what its authority is.

That seems to me a question of, you can call everything that's ultra vires in excess of the agency's jurisdiction, you can.

But that's not -- that's not what we mean by the entry jurisdictional question, does the agency have authority to administer this Act.

Thomas C. Goldstein: Okay.

Justice Scalia, the place where -- I do limit myself to the entry point and the place where you and I are going to disagree is whether the entry point is just the generic question, does the FCC administer the whole Act or the somewhat more narrow question, does the FCC administer this statutory provision.

Justice Anthony Kennedy: Are there some statutes where parts of the statute are subject to agency's Chevron rulemaking authority, and its zero plus one jurisdiction and other parts are not?

You just mentioned the case by Justice Scalia, and I'm not sure that that involved that, because it does seem to me just reading through that “ reasonable time ”, that sounds like something that -- where we can have a specific elaboration of what it means.

And to say that the jurisdiction of the agency or the authority of the agency does not extend to rules seems a little odd at first.

I recognize the federalism problems and so forth.

Thomas C. Goldstein: Yes.

Okay.

The answer to your question is yes and the best example is this statute.

It is uncontested and incontestable that the FCC does not administer all of the Communications Act.

This Court so held squarely in the Louisiana Public Service Commission case, in which there Congress added to the Communications Act sections 251 and 252.

And there was a provision in that statute that said -- that limited the scope of the FCC's power, as we say section 332(c)(7) does.

We will have to go through that and debate that, but the Communications Act is plainly -- and there are other provisions as well.

But the best example is the Louisiana PSC case.

And so--

Chief Justice John G. Roberts: So your understanding of jurisdiction and what you're arguing for today is nothing more or less than this is a provision as to which Congress did not give the agency law-making authority.

You do not defer to the agency with respect to this provision because it's outside its jurisdiction in the sense that it gets deference.

Thomas C. Goldstein: --That is correct.

I would only cabinet it in the following way.

And there's -- the question on which you granted certiorari is, does the FCC get Chevron deference in its assertion that it gets to interpret 332(c)(7) with the force of law.

I think--

Chief Justice John G. Roberts: All right.

Now, the reason -- the reason we are hearing all about jurisdiction and it's kind of dressed up--

Thomas C. Goldstein: --Yes.

Chief Justice John G. Roberts: --is simply because the means by which Congress made clear it was not giving the FCC authority to get deference, however that is phrased, is this 7(a) which speaks about nothing will limit the authority of the States.

Thomas C. Goldstein: It's that--

Chief Justice John G. Roberts: If it weren't for that, if it were some other type of provision, we wouldn't call it jurisdiction, but we would just say the FCC doesn't get deference to it.

Thomas C. Goldstein: --It would be a very easy jurisdictional question.

We rely on two provisions of 332(c)(7) to establish the proposition that Congress did not intend the general rulemaking authority in section 201(b) of the Communications Act to extend to 332(c)(7).

And those are--

Justice Antonin Scalia: That's -- that's no different from our holding in any case that the agency has no authority to issue this rule.

It has rulemaking authority, but this rule goes too far, which is to say Congress did not give the agency authority to go this far.

Thomas C. Goldstein: --Justice Scalia--

Justice Antonin Scalia: It's -- it's always a question of how much authority Congress gave the agency.

Thomas C. Goldstein: --We disagree, and I understand that you have a vision of how Chevron deference operates.

We disagree with it in this respect, respectfully, and that is, we believe that every one of this Court's Chevron precedents has started, sometimes only in a sentence, because often it's very simple -- often it's uncontestable that it's a provision of the Communications Act that does fall within, for example, the FCC's 201(b) authority.

But it is always as -- you have always approached that question as judges, first, we decide does the FCC have the power to implement this statute?

Justice Elena Kagan: Mr. Goldstein, at one level you are right.

It's just a level that doesn't help you very much.

I mean, it's true that always there is an initial question of whether an agency is entitled to Chevron deference.

But usually the way we answer that question is just this: We say is this the agency's organic statute?

Yes.

Does that organic statute provide the agency with lawmaking power?

Yes.

Has the agency acted in accordance with that -- under that lawmaking power?

Yes.

Well, then, the agency gets deference.

We go on to the next thing, which is Step 1 and Step 2.

So, you know, what we don't do is this sort of provision by provision, subsection by subsection, did Congress have a special intent as to this subject matter or that subject matter or the other subject matter?

We've just had some very simple rules about what gets you into the box where an agency is entitled to deference.

Thomas C. Goldstein: Justice Kagan, I disagree.

I honestly disagree.

I'm going to give you three cases that I think show I am right and that your articulation of your -- that approach is not correct.

And I encourage you to ask the Solicitor General what his best case is.

It may be he thinks American Hospital, which I'll talk about.

Here are my three cases: Louisiana Public Service Commission.

Provision by provision, the Court looked de novo at the question of whether sections 251 and 252 of the Communications Act were subject to the general rulemaking power.

It said no.

Adams Fruit, another case where the Secretary of Labor had general rulemaking authority over the agricultural worker protection statute.

And the Court looked specifically at the private right of action and said: Your authority doesn't extend here.

And the last one is Meade, where the Customs Service has the general authority to administer that statute.

And instead, the Court looked at the specific provision involved and it said, do you have lawmaking authority with respect to these interpretive rulings?

And so it has always done some--

Justice Antonin Scalia: Did it say in all of those cases, we give no deference to the agency's contrary determination because this is a jurisdictional question?

Did it say anything like that?

Thomas C. Goldstein: --It did not.

I have not--

Justice Antonin Scalia: I didn't think so.

Thomas C. Goldstein: --Justice Scalia, I will tell you this, I am not overclaiming the cases.

I am describing what happened in them, particularly on the axis of whether the Court went provision by provision.

Justice Antonin Scalia: Very often I could decide a case -- you know, the lower courts are running away from the question of deference vel non because things have been so confused by Meade.

So they simply decide the question assuming no deference to the agency.

That doesn't prove that in that particular case the agency wouldn't have been entitled to deference.

Thomas C. Goldstein: Justice Scalia, let me tell you why--

Justice Antonin Scalia: Whether it was or not, it would have come out this way.

So those three cases don't prove what you say they prove.

Thomas C. Goldstein: --Justice Scalia, here's why I disagree.

I picked three cases for a very specific reason, in that each of those three cases rejected the assertion of jurisdiction.

And so that if Chevron were applying, the Court would have had to find that the statute was unambiguous.

And it didn't do that in any of those cases.

Justice Anthony Kennedy: And could you add that in those three cases, or at least Meade, some respect was given to the agency's due.

Thomas C. Goldstein: Yes, absolutely.

Justice Anthony Kennedy: It was just not the sort of deference that -- under Chevron.

Thomas C. Goldstein: Absolutely.

Justice Elena Kagan: But take Meade, Mister -- I'm sorry.

Thomas C. Goldstein: I did.

I agreed with Justice Kennedy vociferously.

That was the end of my answer.

[Laughter]

Justice Elena Kagan: Meade presented -- whatever you think of Meade, it's a very different question from this, because what the majority in Meade said was that the agency wasn't entitled to deference because it was acting by way of these opinion letters that weren't -- that didn't have the force of law.

So that's the threshold question is, does the agency have power to make rules with the force of law and is the agency exercising that power?

That is a threshold question that has been set by this Court.

It's a very different kind of question from provision by provision, subsection by subsection, did -- did Congress think that the agency had authority over this particular subject matter or not.

Thomas C. Goldstein: Okay.

I have two -- I have three answers.

They will be brief.

Louisiana Public Service Commission and Adams Fruit are as I described them.

The reason that Meade is helpful to me is on a different axis than you've described.

And that is that the agency there had a general -- generally applicable authority in which it could have urged that its authority to issue those rulemakings, that it was entitled to deference on its view of its power to issue rulings with the force of law.

But the third thing that I want to say is let me just take--

Justice Antonin Scalia: Before you get to that, I'm really surprised at your response to Justice Kennedy that you agree that, even where the agency has no jurisdiction, although you won't give Chevron deference, you will give whatever the other kind of deference.

Thomas C. Goldstein: --Skidmore.

Justice Antonin Scalia: Why would you give Skidmore deference if some non-jurisdictional agency comes in and says, hey, by the way, court, you know, I think this is the right answer?

Oh, we will listen to that respectfully.

We won't necessarily give you Chevron -- why would you give it any deference at all if there is no jurisdiction?

Thomas C. Goldstein: Because, Justice Scalia, Skidmore deference is, as you know, of course -- and you have been a very powerful critic of it, obviously, in your opinions -- that it is the -- you give the agency the respect of the persuasiveness of its opinion.

And I took -- or I -- the part of the comment that I was agreeing with Justice Kennedy was -- is, as Justice Ginsburg has suggested, the FCC understands the Communications Act.

Justice Anthony Kennedy: And you might also have said, it seems to me, that that assumes the issue, assumes the premise.

The question is, is there jurisdiction or not.

Thomas C. Goldstein: And that--

Justice Anthony Kennedy: If you say there is no jurisdiction, why do you give deference, that assumes the very step, the very question we are trying to resolve.

Justice Antonin Scalia: And that's all you think that Skidmore deference means?

You will listen to opinions that make sense, right?

Thomas C. Goldstein: --We -- the Court has -- I am quoting the Court.

Justice Antonin Scalia: But just to agency opinions it makes sense, not to--

Thomas C. Goldstein: It more than makes sense, Justice Scalia.

I think that there is a common sense element to this, and that is that the FCC, we recognize that it has its expertise.

The question is, do we have to, when the statute is ambiguous, as it will often be, do we have to accept as a matter of law their view that they do have jurisdiction?

I do want to--

Justice Ruth Bader Ginsburg: Mr. Goldstein, in following that, it seems to me you -- you are basing your argument on what is said in 7(a).

And that preserves the authority of the local governments.

But the provision that we are talking about is (b), and (b) says limitations, authority that the local governments do not have, and among those limitations is that they have to act within a reasonable time.

Thomas C. Goldstein: --Yes.

Justice Ruth Bader Ginsburg: I just don't understand how the FCC's general rule-making authority is removed as to a provision that limits what the State and local governments can do.

Thomas C. Goldstein: All right.

You and Justice Breyer have encouraged me to get to the merits question, so let me turn the corner, if I might, to how we think a court would look at this question de novo.

We have two points.

One is the statutory provision, and this is going to be at pages 1 and 2 of the cert petition, if you have that copy in front of you.

The statute -- and so, Justice Ginsburg, I am going to answer your question, but I want to make a couple of quick points about our offensive argument about why it is Congress didn't intend the FCC to implement the statute with the force of law.

It begins with preservation of local zoning authority.

Subsection (a) says:

"Except as provided in this paragraph, nothing in this Act. "

--which includes Section 201(b) --

"shall limit or affect the authority of a State or local government with respect to this subject matter. "

Then in subsection (b)(5) -- Justice Ginsburg, you said the essence of the statute is (b).

In subsection (b)(5), Congress located the enforcement power of this statute in the courts.

Any -- and this is it at the bottom of 2:

"Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof-- "

Justice Ruth Bader Ginsburg: But you are skipping over (2), which is the phrase “ reasonable time ”.

Thomas C. Goldstein: --I could read the whole thing, Justice Ginsburg.

My point is going to be that that “ reasonable period of time ” phrase is enforced through the courts.

Now, Congress--

Justice Ruth Bader Ginsburg: Just on a practical level--

Thomas C. Goldstein: --Yes.

Justice Ruth Bader Ginsburg: --what sense does it make to read this to say that each time there is a dispute that comes to the Court, the Court will decide in that particular case, with no guide at all, what the reasonable time is?

Thomas C. Goldstein: I will now turn to that question.

It makes enormous sense and it was explained by the conferees in the conference report at page 209 of the petition appendix.

And what happened here is that the House version of the bill instructed the FCC to conduct a rule-making and the rule-making would set standards for establishing a reasonable period of time.

The Senate came along, which had no such provision and said, No, we are going to have a provision that instead says that nothing else in the Act will apply to this question; that you will go to the courts rather than to have a rule-making.

The rule-making must be canceled, and then explained its intent.

And So if I could just read that to you very quickly--

Justice Antonin Scalia: --Suppose I didn't know that and I'm just looking at the text, okay?

Thomas C. Goldstein: --Yes.

Justice Antonin Scalia: There are innumerable statutes which, after giving the agency rule-making authority, provide judicial -- you know, review under this statute shall be held in such-and-such a court.

There is no conflict whatever between a statement that any person affected can sue in Federal court and the possession by an agency of rule-making authority.

The two simply don't conflict.

Thomas C. Goldstein: Justice Scalia, my point is that it is a point in our favor, particularly when you compare -- (b)(5) has two parts, in addition to the statutory history which told the FCC to cancel the rule-making on this point.

Subsection (b)(5) says you go on the reasonable period of time provision, you go to the courts; and on questions related to radio frequency emissions, which is also covered by (c)(7)(A), you go to the FCC.

And what the conferees explained quite clearly, Justice Ginsburg, is that you can have two different visions of what a reasonable period of time is.

And that is a general -- this is -- the first one is what the FCC would expect to implement, and that is a reasonable period of time is a general national standard, a kind of baseline.

What they said is a presumption of 90 or 150 days.

And that's what we think generally the FCC will decide how long it takes to act on a wireless application.

Or you could think about reasonable period of time as within the locality.

And that is, is the locality following its ordinary standards for resolving siting applications and not discriminating against wireless applications.

And that -- the latter is what Congress intended, and it makes every sense in the world in the context of this statute that Congress wanted that, because, first, it has always been the case that State and local -- that wireless siting and all siting decisions are decided by localities, not by the Federal Government.

Justice Ruth Bader Ginsburg: How do you know -- how do you know when it's 30 days after a failure to act?

Thomas C. Goldstein: That, Justice Ginsburg -- just to put this in context, the government says that the FCC was concerned that the wireless companies wouldn't know when to go to court.

They cite no case in which that was ever an issue, neither the wireless companies nor them.

Justice Anthony Kennedy: Well, I wouldn't know when to go to court.

Let me ask you this: Suppose there is a provision of this statute which is very difficult to understand.

Thomas C. Goldstein: Yes.

Justice Anthony Kennedy: Does that bear on the Chevron Step Zero analysis on the question of what you call jurisdiction?

Thomas C. Goldstein: It does, Justice Kennedy.

Justice Anthony Kennedy: All right.

It seems to me that Justice Ginsburg identifies a real point.

I was looking at this statute and I say, you know, How do I know when this agency has failed to act?

I don't -- that's just a very obscure data point.

Thomas C. Goldstein: Okay.

Two things, Justice Kennedy.

First is, I will tell you that Congress consciously used phrases, “ reasonable period of time ” and

"substantial evidence contained in a written record. "

--those are the subdivisions of subparagraph (b), which Justice Ginsburg was pointing to, because those are judicially administered standards.

And I will just read you one sentence from the conference report:

"The phrase substantial evidence contained in a written record is the traditional standard used for judicial review of agency actions". "

The agency here being the locality.

And, Justice Kennedy, on your question--

Justice Ruth Bader Ginsburg: Where does that say anything about what you just read about what is a reasonable time?

Thomas C. Goldstein: --Yes.

Justice Anthony Kennedy: Was that at 209?

Thomas C. Goldstein: That was at 210, Justice Kennedy.

There is a similar passage relating to “ reasonable period of time ”.

It's quite clear.

I believe the conference report is four or five pages long.

When you have the opportunity to read it again, I think you will see that Congress was adopting local standards, a local -- a local approach to deciding this question, against a broader framework.

Can I just answer Justice Kennedy's--

Justice Sonia Sotomayor: Mr. Goldstein, could you go back to the question presented?

Thomas C. Goldstein: --Sure.

Justice Sonia Sotomayor: I have read a lot of briefs in this case and I don't have any idea what to tell a lower court, how to articulate the tests or how to apply it.

Thomas C. Goldstein: Yes.

Justice Sonia Sotomayor: Given that you started with saying it's almost impossible to talk about what's jurisdictional and what's an application of jurisdiction.

So articulate the test and tell me what I tell the lower courts.

Thomas C. Goldstein: The lower courts decide de novo whether the agency was given the power to interpret a particular provision with the force of law.

That's the entry point question, the threshold question.

All of this works--

Justice Sonia Sotomayor: So that's what the court here did.

It looked at the Communications Act, it said, It has the power--

Thomas C. Goldstein: --It did not--

Justice Sonia Sotomayor: --to pass regulations with respect to this Act.

There is no clear exception.

I still haven't quite understood, other than in the academic literature, what the difference between Step Zero and Step One is, and so there is an ambiguity and now the agency is given deference.

So where in this conversation is there--

Thomas C. Goldstein: --Here's where it went wrong.

Here's where it went wrong.

Here's where it went wrong.

It looked to the statute, it found the relationship between 332(c)(7) and 201(b) ambiguous.

And when it found ambiguity, then it said it was compelled to accept the FCC's reading.

It did not resolve that ambiguity itself, as it would in any other case involving statutory construction.

Before I sit down, Justice Kennedy and Justice Ginsburg have raised the point that the government did, that when does someone know when to go to court?

The only part of my answer I got in was that there are no cases identifying that as a problem, and the reason is that it's a continuing violation.

No communications provider, so far as we are aware, was ever thrown out of court for coming in too late, for a failure to act, because every day the State and locality didn't act is regarded as an alleged violation and it doesn't take away from jurisdiction to go to court.

There are no cases that support their concern.

If I could reserve the remainder of my time?

Chief Justice John G. Roberts: Thank you, counsel.

General Verrilli?

ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE RESPONDENTS

Donald B. Verrilli Jr: Mr. Chief Justice, and may it please the Court:

Let me start with a central point that I think cuts through most of the arguments that Petitioner has made this morning.

Chevron does apply to a court's review of an agency's determination of jurisdiction, but only after a court concludes that Congress has delegated to the agency generally the authority to make rules carrying the force of law, and that the rule in question was promulgated in exercise of that authority.

Justice Anthony Kennedy: As -- as to that specific provision?

Donald B. Verrilli Jr: No, in general.

I think that the language this Court used, taken from Mead, last term in Astrue, in the unanimous opinion for the Court in Mayo the term before, was is the authority -- is the agency vested with authority generally to make rules.

Chief Justice John G. Roberts: Well, that's right, but your argument it seems to me can't be -- let's say you have a general statute and you've got a provision at the beginning that says this is -- authority to interpret this is delegated to the agency.

And you go along, but then all of a sudden in, you know, section 123 it says it doesn't get any deference interpreting this provision.

Now, you would not say that the first general one controls the specific withdrawal of deference, would you?

Donald B. Verrilli Jr: I would not, Mr. Chief Justice.

Chief Justice John G. Roberts: No, you would say you don't get deference on 123.

And as I understand the case, and that's why I persist in thinking there's no great disagreement here, your friend on the other side is saying that, particularly given 7(a) and some other things, you should read 7(b)(2) as if Congress had said: Agency, you don't get any deference here.

You can read it that way, they say, because 7(a) says nothing shall limit what the State can do other than what's here in the statute.

And if you let the FCC, if you give them deference, you're letting something else limit what the State can do.

So why -- and then you dispute, it seems to me, just whether that you should call that jurisdiction or not, because people think of jurisdiction as meaning, oh, you don't get through the door.

But if what they mean by jurisdiction is simply that the agency gets no deference on this point, then it seems to me everybody's saying the same thing.

Donald B. Verrilli Jr: Well, I'm not sure I agree with that, Mr. Chief Justice, because I think the point here is that to the extent, once you've satisfied that general threshold that I identified, then to the extent there is ambiguity -- if the statute is clear and in Your Honor's hypothetical I'd submit the statute is clear at that point that the agency -- that the agency's authority has been carved out with respect to that particular provision.

If it's clear, you don't get to the question of whether there's any deference due.

The issue arises when there's ambiguity.

And our position is--

Chief Justice John G. Roberts: Ambiguity in the provision that says, agency, you get no deference, or ambiguity in the substantive provision at issue?

Donald B. Verrilli Jr: --Either one, because--

Chief Justice John G. Roberts: Well, but if there's no ambiguity on the provision that says you get no deference, then it doesn't matter whether there's ambiguity on the subsidiary one, right?

Donald B. Verrilli Jr: --That's correct.

But if there is ambiguity on the first, our position is that Chevron applies and that the agency gets deference so long as it's a permissible construction of the statute, and that's true whether you call it jurisdiction or whether you call it substance.

And one reason for that, Mr. Chief Justice, is that I don't think there is -- I do think this is really a Pandora's box situation.

I do not think there is a clear, neat dividing line between what my friend, Mr. Goldstein, describes as a jurisdictional issue, an issue of interpretive authority, and a question of substance.

And I think you can see that in the briefing in this case.

Mr. Goldstein has tried to define jurisdiction in a particular way; the IMLA has defined it in a very different way.

They say any question that goes to the who, what, when or where of an agency's assertion of authority is a jurisdictional question, as to which agencies get no Chevron deference in the course of ambiguity.

And the reason that IMLA gives for stating that position is exactly the same reason that Mr. Goldstein gives for stating his position, which is that you're talking about an agency action in excess of the scope of its delegated authority and once you say that, there's no Chevron deference.

And I would respectfully submit once you have got a situation in which it is clear that the agency has general authority to implement and the argument is whether its authority to implement has, with respect to a particular provision, has been carved out, at that point Chevron deference is appropriate, and that is the practice of this Court in repeated numbers of cases.

American Hospital Association is certainly one such case where the -- the NLRB had general rulemaking authority, there was a statutory provision that said bargaining units needed to be determined by the NLRB in each case.

And the argument was made that that ought to be understood as a carveout from the NLRB's general authority requiring case-by-case decisionmaking with respect to bargaining units, and the Court rejected that argument, saying that -- that in that case, whatever ambiguity there was in the statute ought to be resolved under Chevron in favor of the agency.

Schor, CFT v. Schor, is a comparable case, and I would submit Iowa Utilities Board is a case--

Justice Sonia Sotomayor: All right.

General, let's go back to the question presented and break down your argument.

Is it your position that what the Court asks first is whether Congress has spoken clearly on the agency having authority or not?

Is that subject to de novo review?

Donald B. Verrilli Jr: --Our position -- let me walk through the steps of our position and how we answer the question presented.

Justice Sonia Sotomayor: All right.

But tell me what gets deference when and what's subject to de novo review.

Donald B. Verrilli Jr: Here's our answer to the question presented, Justice Sotomayor: That there is de novo review of the question of whether Congress has delegated authority to the agency generally to act with the force of law and whether the interpretation claiming deference is an exercise of that delegated authority.

Once that is satisfied under de novo review, Chevron kicks in.

Now, Step 1 of Chevron is, of course, de novo review using the normal tools of statutory construction to answer the question whether Congress has spoken clearly on the issue of whether the agency has authority.

If the answer is that Congress has, then that disposes of the case.

If Congress hasn't, then one moves to Step Two of Chevron and asks whether the agency's interpretation of the provision at issue, whether you call it substantive or whether you call it jurisdiction, is a permissible construction.

Is it within the bounds of what the language can reasonably accommodate it?

If it is, the agency is upheld.

That's the way we think the issue in this case should be analyzed.

That's the way we think every issue should be analyzed under Chevron.

We think that's what this case is -- this Court's cases say.

And we think this is what the Court uniformly and routinely does in analyzing these questions.

I think--

Justice Sonia Sotomayor: So deal with the three cases he mentioned.

Donald B. Verrilli Jr: --Louisiana Public Service Commission, a little bit of confusion I think about that case.

That case was decided in 1986.

Congress added the sections Mr. Goldstein referred to, 251 and 252 of the Communications Act, in 1996.

And what Louisiana Public Service Commission did was define the outer limits of the commission's authority.

It said nothing shall be -- nothing in this act shall give or -- shall be construed to give the commission authority or jurisdiction over intrastate communications.

So it was an express carveout.

That seems to me, had you had run that through the Chevron analysis, it'd be a pretty straightforward Chevron Step 1 case.

Adams Fruit, the Court held specifically in Adams Fruit that the plain meaning of the statutory provision at issue foreclosed the agency's interpretation.

And that's at 494 U.S. at page 646.

So that was a Chevron Step One case.

It then did go on to say, with respect to Chevron Step Two, that even if we were going to think about granting the agency deference here, they wouldn't get it.

But I think the reasons -- if you map the reasoning of Adams Fruit onto this case, it supports our position and not Mr. Goldstein's.

What the Court said in Adams Fruit was that the Department of Labor did have the authority to implement the substantive provisions of the Agricultural Workers Protection Act, including the substantive provisions governing motor vehicle safety.

What it didn't have was the authority to restrict judicial remedies available for the private cause of action created under the statute.

Well, if you map that onto here, what the FCC has done here with respect to the reasonable time provision in 332(c)(7)(B) of the statute was to provide a rule of decision for the substantive provision of the Act, leaving to the courts the decision of what remedy, if any, there would be for a violation of those substantive provisions.

And so it's -- it totally maps onto -- to the FCC's interpretation of the right way to think about statutory authority in this case.

And if I -- I'm sorry, Justice Breyer.

Justice Stephen G. Breyer: Well, what worries me about it is you and I both have in our offices thousands of words which are in the U.S. Code and there are hundreds of thousands -- or millions of employees in millions of different kinds of agencies, and if we turn Chevron into the tax code, it's going to be a nightmare -- in my opinion, not necessarily in that of my colleagues.

So as you know, I've written somewhat a different approach, and it says, Let's not do this.

But just so, who would win here?

Suppose you just said, Look, what we're interested in is just one question, whether Congress wanted a court to give, in this kind of situation, deference to the agency.

And the answer will be, It depends.

Chevron is a good rule of thumb, but it isn't a straightjacket.

So what you'd look at here is it's the FCC that is in charge of national communications, of which this is part.

There is a specific provision, as your colleague points out, that says

"but don't interfere with the States when they are citing stuff. "

But then there is a limitation to that specific provision which consists of six or seven parts, all of which maintain a lot of authority in the FCC or rules about what they are not supposed to do.

And then here it uses the word “ reasonable ”.

So where you have a federal agency with expertise that's in charge of this kind of area and they have rule-making authority and you have a statute like this, which is a little bit ambiguous, but not too, in respect to the point about whether they do interpretation, you'd add up those factors and make a decision.

Donald B. Verrilli Jr: So--

Justice Stephen G. Breyer: I mean, that's such a simple -- I mean, that's Louis Jaffe.

That's the founders of administrative law.

That's everybody until we get into a straightjacket, and it isn't even Chevron, doesn't go against us if you don't think of it as a straightjacket.

Donald B. Verrilli Jr: --Two points.

First, applying that approach, I think it's pretty clear that one would uphold the FCC's judgment here.

Second, I understand that that's Your Honor's approach.

I don't--

Justice Stephen G. Breyer: I didn't make it up.

It was Louis Jaffe.

Donald B. Verrilli Jr: --I understand that Your Honor is the most recent proponent of this approach.

Justice Antonin Scalia: That's no better.

Louis Jaffe isn't even a member of the Court.

[Laughter]

Donald B. Verrilli Jr: But -- but I think the Court is in a different place, and I think the Court is in a different place for a good reason, because I think it's our interpretation of Chevron that avoids turning it into the complexity of the Internal Revenue Code, because I think if you think about what my friends on the other side are proposing here, what they're suggesting is that once you've cleared that initial hurdle of deciding the agency has general authority to implement the statute with the force of law and that this is an exercise of that general authority and, therefore, not--

Justice Stephen G. Breyer: I mean, I think I can show, which I will spare you at the moment, all the cases like Meade are consistent with what I said.

And cases that are not consistent are consistent with Judge Friendly said years ago, where he said there is no coherence to the Supreme Court's cases in this area; when they like a result, they say they have deference, and when they don't like it, they say they don't.

Donald B. Verrilli Jr: --I guess I would beg to differ about that.

I think our -- our view is that Chevron does provide a stable framework for the development of administrative law.

Justice Antonin Scalia: Justice Breyer would replace that with a rule where they like the agency to have authority, it has it, and where they don't like it to have authority, it doesn't.

I'm not sure that's any better than--

Donald B. Verrilli Jr: I guess--

Justice Antonin Scalia: --a description of the Chevron--

Justice Stephen G. Breyer: You don't have to -- I'm sorry I brought this up.

Donald B. Verrilli Jr: --With respect to the issue that's in front of the Court now, I think -- what my friends on the other side are asking is actually for an additional layer of complexity in the analysis, even after the general authority is established to make rules with the force of law, and even after it's established that the rule at issue is -- has been done in the exercise of that, my friends on the other side suggest that there is another layer of de novo review there to answer the question of whether this particular provision--

Chief Justice John G. Roberts: Right, well--

Donald B. Verrilli Jr: --gives authority to act with the force of law.

Chief Justice John G. Roberts: --Your friend on the other side has another set of arguments about why you should treat this particular provision differently, and that is because it concerns the authority, or lack thereof, of state and local government agencies.

Now, does that play any role at all in your analysis?

Donald B. Verrilli Jr: Yes.

Chief Justice John G. Roberts: We are not talk -- you know, obviously the dividing line between state authority and federal authority is a more significant one than some of the other questions as to which agencies get deference, which is whether rates are reasonable or not reasonable.

And this provision is written in terms of the preservation of state authority.

And your view would give the federal agency deference under Chevron, very considerable deference, in defining when there should be federal authority and when there should be state.

Is that at all a pertinent consideration?

Donald B. Verrilli Jr: It is definitely a pertinent consideration, Mr. Chief Justice, and let me talk about that in general and then move to the specifics of this case.

In general it's a pertinent consideration that is accommodated within the Chevron framework.

At Chevron Step One, the Court applies the normal tools of statutory construction.

The normal tools of statutory construction include a clear statement rule, they include the presumption against preemption, and this Court--

Chief Justice John G. Roberts: Normal -- I'm sorry I interrupt you, but the normal rules of statutory construction include a clear statement rule?

Donald B. Verrilli Jr: --Well, when the question is whether Congress -- let me try to use this with a specific case, the Solid Waste of Cook County case.

That's a case in which the Court declined -- it didn't say that that issue there was exempt from Chevron analysis.

It applied the Chevron framework, and it said it's Step One of Chevron because the migratory bird rule pushed to the very outer limits of Congress's commerce clause authority, that the Court was going to apply a clear statement rule in that situation before assuming that--

Chief Justice John G. Roberts: Who has that -- who has to be clear on their statement?

Which way?

Donald B. Verrilli Jr: --Congress has to be clear in its--

Chief Justice John G. Roberts: That it intended to intrude upon state authority?

Donald B. Verrilli Jr: --To give that authority to that extent, exactly.

Justice Anthony Kennedy: But the agencies have no historic responsibility or tradition, quite unlike Article III courts, of safeguarding the federal balance.

Donald B. Verrilli Jr: But Chevron Step One is, of course, applied by the courts, Justice Kennedy, and that's where the protection comes in, and with respect to this particular--

Justice Antonin Scalia: --I don't understand the question, to tell you the truth.

This matter is not left with the States.

It's going to be decided by a federal instrumentality, right?

Either by the agency, which says 30 days is the rule, or by federal courts, which perhaps could issue opinions that say 30 days is the rule.

I mean, this -- you know, it's an interesting separation of powers question within the federal government, but I don't see how it's a question of whether it's the states or the federal government that's going to call the tune here.

It's going to be the federal government, isn't it?

Donald B. Verrilli Jr: --That is the -- was going to be my specific point in response to your question, Mr. Chief Justice.

Chief Justice John G. Roberts: No, it wasn't going to be that.

That -- the idea that there is no difference between the federal judiciary defining the limits between state and federal power, and having an agency of unelected bureaucrats responsible to the executive saying when the state controls and when the federal controls, those are vastly different propositions.

Donald B. Verrilli Jr: Yes, but there is a third variable here and that's what's key, which is in this situation, in 332(c)(7)(B), the limitations provision, Congress has spoken unambiguously and said that the following limitations on local zoning authority must be respected.

Chief Justice John G. Roberts: Yes.

Donald B. Verrilli Jr: And no one has suggested that that was at the outer limit of Congress's commerce clause authority or anywhere closer to it.

Chief Justice John G. Roberts: But it also said, it also said in (7)(a) that those are the only limits, not add on to this any limits that unelected bureaucrats might decide to impose, and will give them -- and the courts must give them vast deference in enforcing those limits.

Justice Anthony Kennedy: Unelected federal bureaucrats.

[Laughter]

Donald B. Verrilli Jr: But I do think -- I do think that what Justice Scalia said is correct, that the question here is not whether the States will decide.

The question at the end of the day is whether the agency will be able to exercise its usual authority to interpret reasonable--

Justice Antonin Scalia: Don't you think that the--

Donald B. Verrilli Jr: --whether federal courts will make those decisions on a case-by-case basis--

Justice Antonin Scalia: --Don't you think that the issue of whether unelected federal bureaucrats should decide it or unelected federal judges should decide it is an issue of separation of powers rather than an issue of -- of federal/state relations?

Donald B. Verrilli Jr: --I do think -- in that respect I think this case is really just like Iowa Utilities Board in that the argument there--

Chief Justice John G. Roberts: Is it AT&T versus--

Donald B. Verrilli Jr: --Yes.

Chief Justice John G. Roberts: --Okay.

Donald B. Verrilli Jr: In that -- the argument there was that you ought not to interpret the FCC to have authority to implement particular rules because Congress gave to State public utility commissions the responsibility to carry out and execute the rules and then to federal courts the power to review them and cut the FCC out.

And the argument there was that respect for States ought to lead you to conclude not to apply Chevron deference to the agency--

Justice Stephen G. Breyer: Okay.

Now--

Chief Justice John G. Roberts: But in rejecting that argument in Section 2 of the opinion, the author of that opinion in nowhere, in no place applied Chevron deference in answering that question.

It was entirely de novo, unlike in Section 3 when it was finally decided, Okay, we've got the answer here and now we will defer to the agency on the substance of the determination.

Donald B. Verrilli Jr: --I -- I understand that the petitioners made that argument, Mr. Chief Justice.

I read the opinion differently, and if I could, I'll explain why.

In Section 2 and looking at pages 384 and 385 of the opinion.

After the Court had established that there was general authority under Section 201(b) to implement the provisions of the Act, which I do think the Court established de novo and we would agree that that's appropriate, the Court then moved on to consider these specific jurisdictional questions.

And the Court looked at the provision of the statute which gave authority to the State commissions and then considered the argument that one ought to infer from that, that the FCC's cut out of the process, and the opinion of the Court says:

"We think this attributes to that task a greater degree of autonomy than the phrase “ establish any rates ” necessarily implies. "

Seems to me what the Court was saying there, and then on the next page says something very similar about the next argument that the -- that the challengers were making in that case.

And I think--

Chief Justice John G. Roberts: Does it cite--

Donald B. Verrilli Jr: --It does not.

Chief Justice John G. Roberts: --in Part 2, which is--

Donald B. Verrilli Jr: It does not, Mr. Chief Justice, but--

Chief Justice John G. Roberts: --one, two, three, four, five, six, seven, eight, nine, ten pages of analysis of the Chevron case?

Donald B. Verrilli Jr: --It does not.

Chief Justice John G. Roberts: Does it say they are applying Chevron deference?

Donald B. Verrilli Jr: It does not.

But the conclusion -- I think my -- my friend has suggested that we weren't accurate in our discussion of the concluding paragraph of this phrase.

But I would like to turn the Court's attention to that because I think we were.

This is at page 397 of the opinion.

Okay.

There is a sentence that starts:

"The 1996 Act can be read to grant most promiscuous rights to the FCC vis a vis the State commissions and to competing carriers vis a vis the incumbents, and the Commission has chosen in some instances to read it that way. "

"But Congress is well aware that the ambiguities it chooses to produce in the statute will be resolved by the implementing agency. "

"We can only enforce the clear limits that the 1996 Act contains, which in the present case invalidate only Rule 319. "

Now, the jurisdictional dispute was the dispute between the FCC -- the FCC vis a vis the State commissions over who had the authority to implement the rules.

So while I agree, Mr. Chief Justice, that Chevron is not cited in that section 2 of the opinion, the tenor of that discussion does seem to me to say that the Court was looking, once it had established general authority, for clear evidence that Congress had intended to carve out from that general authority the particular provisions at issue, and because the provisions to which the challengers pointed did not necessarily imply an intent on the part of Congress to carve it out, that the Court wasn't going to find a carveout.

So I do think that really the analysis in Iowa Utilities Board is quite consistent with that--

Justice Stephen G. Breyer: --I dissented in that, I think.

Donald B. Verrilli Jr: --Yes, you had a different view.

Justice Stephen G. Breyer: Right.

So I agree with you, this flows a fortiori from the majority.

But I didn't think -- this is what I wonder -- is -- you say unelected Federal bureaucrats.

Administrative law is about Federal administration.

That is Federal administrative law.

And I've heard here people say we're talking about them adding something.

I didn't think that's what was at issue.

I thought that there is a word in the statute, “ reasonable ”, and what the administrators did at the FCC was to interpret that word.

Am I right or wrong?

Donald B. Verrilli Jr: That's certainly how we understand the situation, Justice Breyer, that the agency--

Justice Stephen G. Breyer: What was added?

What was added?

Donald B. Verrilli Jr: --It interpreted the meaning of the language “ reasonable time ” to give it more precise content, to allow -- to deal with the failure to act situation.

Justice Ruth Bader Ginsburg: Can you tell me, what is -- what is the ambiguity?

Because I looked at (b).

(B) is limitations.

Limitations is on the State, and then it uses the phrase of what the State cannot do.

The State has to conform to a reasonable time.

What is ambiguous about this?

Donald B. Verrilli Jr: Well, our view, Justice Ginsburg, is that there isn't any ambiguity, that the rule ought to be upheld no matter what standard of review applies, in fairness to my friends on the other side.

But I do think this points up the problems going down the road.

They are suggesting is--

Justice Antonin Scalia: I thought “ reasonable ” was what people were talking about as being ambiguous, although I don't think “ ambiguous ” is the proper word.

“ Reasonable ” is vague.

You don't know exactly what it means, right?

Donald B. Verrilli Jr: --I took that -- I think that's it's -- it's certainly susceptible to further elaboration in that sense.

But I took Justice Ginsburg to be asking me about the ambiguity with respect to the authority of the (7)(A)--

Justice Stephen G. Breyer: Reasonable -- reasonable is uncertain who.

Who has -- it doesn't tell us who has the authority.

Donald B. Verrilli Jr: --Right.

And in fairness to my friends, and as the Chief Justice has just indicated, it's an inference from (7)(A), and I suppose an inference from (7)(B)(v), and that the courts are in the process.

But I do think this points up the difficulty is that if you -- if you look at the provision that the FCC's actually implementing here, it's not a jurisdictional provision; it's a normal substantive standard.

The FCC is giving it more precise content.

That's what an agency's job is.

It's doing its job here.

Chief Justice John G. Roberts: You're talking about (7)(B).

Donald B. Verrilli Jr: Yes, (7)(B)(ii), right, exactly.

Chief Justice John G. Roberts: What is there about (7)(A) that you think is ambiguous?

Donald B. Verrilli Jr: We think it's clear that the FCC has authority, given (7)(A), because of the

"except as provided in this paragraph. "

argument.

It's I think our friends on the other side who say that it's (7)(A) that creates uncertainty about whether the FCC has the authority to implement the reasonable time provision in (7)(B)(ii) -- and I think that points up the problem with adding this additional step to the analysis.

Once the Court has satisfied itself that the agency has general rulemaking authority, it's not going to be hard to cobble together inferences to make arguments on de novo review that the -- that the agency lacked the authority to implement a particular provision with the force of law.

And I think you're adding needless complexity, and I do think -- the reason I suggested earlier that I think this is a Pandora's box is because I do not think there's at the end of the day a principled line that can be drawn between what my friend describes as interpretive authority questions and the kind of who, what, when, where, substantive questions, substantive jurisdictional questions that Respondent IMLA is focused on.

In each of those situations, the argument is that the agency has acted in excess of its statutory authority.

And if that's sufficient to justify de novo review in the first instance, it's sufficient to justify de novo review in the second instance.

And if that's the case, then I would submit that you have really unravelled Chevron.

The good work that that doctrine does to stabilize the development of administrative law is gone.

There will be an argument in every case that -- that de novo review is required, and in every case in which a court agrees that de novo review is required, once the court has interpreted the statute as a matter of de novo review, then you have ossification of the administrative process because that interpretation is locked in.

Chief Justice John G. Roberts: Well, but your argument there is basically saying when the statute says something is reasonable, it means that the Commission doesn't have -- it's a jurisdictional question whether it's reasonable or unreasonable.

But it seems to me that this provision is quite a bit different.

It talks about the authority of a State.

And usually when we are talking about the authority of which entity can govern, we view that as jurisdictional.

There may well be cases at the margin that are -- that are difficult.

But your argument is basically reasonable or unreasonable is the same as State or Federal.

Donald B. Verrilli Jr: No, I don't think it is, Mr. Chief Justice.

I think the federalism values are important, but I do think, as the -- as the--

Chief Justice John G. Roberts: No, no, I'm not talking about the federalism values.

I'm talking about your argument that, oh, once you say you can draw a jurisdictional line here, people will argue you can draw it everywhere.

Donald B. Verrilli Jr: --Well, I do -- I do think that's true, and I think that the arguments that are being made by my friend on the other side demonstrate that.

But I guess what I would say in this situation in particular is that -- we're really not -- the fact that it does involve the Federal and State authorities doesn't change the analysis, because applying Chevron in the normal way, one would not conclude that Congress has spoken clearly and restricted the agency's authority, and there is no means -- there's no basis to apply a clear statement rule here because Congress clearly had the authority to impose the limitations that it imposed in subsection (B) and those are direct limitations on the State authority, and Congress made that judgment.

It isn't the agency weighing in on its own to decide that State or local authorities should be subject to limitations.

These are judgments that Congress made and the agency is implementing them in very much the same way that the Court found it was appropriate for the agency to implement the preemptive scope of the word “ interest ” in the National Bank Act in the Smiley case.

Justice Antonin Scalia: Mr. Verrilli, why isn't it an easy answer to the whole case to read (7)(A).

Except as provided in this paragraph.

Nothing in this chapter shall limit or affect the authority of State or local government?

Okay?

Except as provided in this paragraph.

And then later in the paragraph, in the subsection entitled “ limitations ”, it says

"a State or local government shall act on any request for authorization within a reasonable period of time. "

Donald B. Verrilli Jr: That's why--

Justice Antonin Scalia: That's a limitation.

Chief Justice John G. Roberts: That's exactly right.

That limits it.

And -- and the question then is of course whether that's enforced in court -- enforced in court or before the agency.

Right?

Donald B. Verrilli Jr: --No.

I think the question is whether the agency has the authority to flesh out the substantive standard that the court will subsequently apply--

Chief Justice John G. Roberts: Whether the standard is defined in -- by direct judicial review or by the agency, with deference to the agency.

Donald B. Verrilli Jr: --I agree with Justice Scalia, because -- because I do think that no matter what view of the matter the Court takes, the FCC's rule ought to be upheld, but I do think that the positions my friends on the other side are advocating threaten to unravel the Chevron framework and destabilize administrative law.

And I would urge the Court not to do it.

Justice Sonia Sotomayor: General, if the agency had said reasonable is 30 days, period, and not done what it did, which was create a rebuttable presumption, would that have been appropriate?

Would we have had to uphold that?

And if not, I think -- how would we have struck it down?

What step?

Donald B. Verrilli Jr: You've analyzed that under Step 2 of Chevron, Justice Sotomayor.

You decided the permissible construction of the statute, whether it's reasonable or whether it's arbitrary and capricious, that would depend on what the record looked like.

But certainly, a court would exercise review over that matter.

If the Court has nothing further?

Chief Justice John G. Roberts: Thank you, General.

Mr. Goldstein, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE PETITIONERS

Justice Anthony Kennedy: Chevron is at an end.

It's unravelled.

Thomas C. Goldstein: I've heard, and I regret that I have contributed to such a horror.

This is silliness.

[Laughter]

The Court has -- we have cited to you 17 cases of yours in which you have always looked at the entry point question de novo, and on the idea that we're making this more complicated makes no sense to me, because what the Government wants, and you see this in the Fifth Circuit's decision, is a surround of Chevron on whether they have authority.

Go through that entire process, and then go through it again, assuming that you do believe they have that authority.

There's not a step that we're adding to the inquiry.

Justice Elena Kagan: Well, Mr. Goldstein, I think with respect, it's not silliness.

You have been running as fast as you can away from the arguments that IMLA has presented that in every case it's a who, what, where, you know, or how question and that we have to answer that.

But the question that General Verrilli raises, I think, is a fair question, is how your argument which says that we have to consider in each case as to each statutory provision whether an agency has interpretive authority is any different from IMLA's argument that we have to consider with -- in respect to every case whether we're dealing with a when, what, who, where question or a how question.

It's the same argument, isn't it?

Thomas C. Goldstein: No, it is not.

This Court has said time and again, including in Meade, that the precondition to the application of Meade is a determination that Congress delegated authority to the agency to interpret the statute with the force of law.

And that has to be asked in every single case and that is a distinct inquiry.

Once you decide that they have that delegated authority over that provision, then, as this Court has done in every case--

Justice Elena Kagan: Of course there's a threshold question, but the threshold question has always been is the agency interpreting its organic statute and is -- does that statute give the agency rule-making authority and is that what the agency is exercising.

Thomas C. Goldstein: --We are at loggerheads, Justice Kagan.

I believe that Louisiana Public Service Commission and Adams Fruit are just simply contrary to that.

It also doesn't make any sense to believe that Congress gave the agency this 201(b) authority and then implicitly gave the agency the authority to decide how far 201(b) extends.

This is just a question-begging exercise.

They say we have this general authority.

I ask.

Does that general authority apply to this particular provision in the Act, and they say, Well, our general authority gives us the power to answer even that question, and that is not correct.

Justice Elena Kagan: I guess I'm still waiting for -- for the -- the way in which your inquiry is different from IMLA's inquiry.

Thomas C. Goldstein: It is, because I am only asking the threshold question, did Congress give the agency the power to interpret this statutory provision with a question of law.

And that is a different -- I'll give you an illustration and that is, there is an extended discussion of this question in the FCC's order.

It had no difficulty identifying that as a separate inquiry.

I did want to just turn to the merits--

Let me just say that the Solicitor General's argument about whether the 201(b) authority extends to 332(c)(7) is a great illustration of our argument on the question presented.

Because that's a lawyer's argument.

There was not a word that my friend said about there was a technical question of communications law and how wireless citing facilities operate.

That's the kind of question that Congress gives to agencies.

It is not the threshold lawyer's issue, does this statute read this far?

I would only encourage you on the merits question, which is not included in the question presented, which you didn't grant certiorari on, that is, the application of de novo review to this statute to pay more attention than I think this argument has given it, because it wasn't the core issue briefed in the case, obviously, to what Congress did in this statute.

There was a version of the statute that gave the FCC the very authority that it is claiming here.

That was the House version of the bill that was rejected in Congress in conference, Congress adopted this version, ordered the FCC to cancel the rule-making and reserve this power to the courts, the -- the authority to decide what is a reasonable period of time.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.