Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.

435 U.S. 519 (1978)

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

[The Natural Resources Defense Council (“NRDC”) challenged a rule promulgated by the (“AEC”). The NRDC claimed that the AEC did not provide a meaningful opportunity to participate in rulemaking because it did not allow participants to undertake discovery or cross-examination processes. The D.C. Circuit Court of Appeals remanded the rule to the agency, finding that “the procedures followed during the hearings were inadequate.” The Supreme Court disagrees with that decision, explaining its reasoning in this case:]

In 1946, Congress enacted the Administrative Procedure Act, which as we have noted elsewhere was not only “a new, basic and comprehensive regulation of procedures in many agencies,” but was also a legislative enactment which settled “long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest.” 5 U.S.C. § 553, dealing with rulemaking, requires in subsection (b) that “notice of proposed rule making shall be published in the Federal Register . . . ,” describes the contents of that notice, and goes on to require in subsection (c) that after the notice the agency “shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” Interpreting this provision of the Act in United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 (1972), and United States v. Florida East Coast R. Co., 410 U. S. 224 (1973), we held that generally speaking this section of the Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures. Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances which would ever justify a court in overturning agency action because of a failure to employ procedures beyond those required by the statute. But such circumstances, if they exist, are extremely rare [...]

It is in the light of this background of statutory and decisional law that we granted certiorari to review two judgments of the Court of Appeals for the District of Columbia Circuit because of our concern that they had seriously misread or misapplied this statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress. We conclude that the Court of Appeals has done just that in these cases, and we therefore remand them to it for further proceedings.

[In December 1967, the Commission granted Vermont Yankee a permit to build a nuclear power plant in Vernon, Vt. Thereafter, Vermont Yankee applied for an operating license. NRDC objected to the granting of a license, however, and therefore a hearing on the application commenced on August 10, 1971. Excluded from consideration at the hearings, over NRDC's objection, was the issue of the environmental effects of operations to reprocess fuel or dispose of wastes resulting from the reprocessing operations. This ruling was affirmed by the Appeal Board in June 1972.

In November 1972, the AEC also instituted rulemaking proceedings “that would specifically deal with the question of consideration of environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light water cooled nuclear power reactors.” This rule was promulgated specifically to supplement the Vermont Yankee Appeal Board ruling. In April 1974, the Commission issued a rule that required no qualitative evaluation of the environmental hazards posed by the uranium fuel cycle. NRDC appealed from the Commission's adoption of the rule.]

Much of the controversy in this case revolves around the procedures used in the rulemaking hearing [...] Vermont Yankee argues that the court invalidated the rule because of the inadequacy of the procedures employed in the proceedings [...]

But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances the “administrative agencies ‘should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.’” FCC v. Schreiber, 381 U. S., at 290, quoting from FCC v. Pottsville Broadcasting Co., 309 U. S., at 143. Indeed, our cases could hardly be more explicit in this regard. The Court has upheld this principle in a variety of applications [...]

Respondent NRDC argues that 5 U. S. C. § 553 merely establishes lower procedural bounds and that a court may routinely require more than the minimum when an agency's proposed rule addresses complex or technical factual issues or “Issues of Great Public Import.” We have, however, previously shown that our decisions reject this view. We also think the legislative history, even the part which it cites, does not bear out its contention. The Senate Report explains what eventually became [5 U. S. C. § 553] thus:

“This subsection states . . . the minimum requirements of public rule making procedure short of statutory hearing. Under it agencies might in addition confer with industry advisory committees, consult organizations, hold informal ‘hearings,’ and the like. Considerations of practicality, necessity, and public interest . . . will naturally govern the agency's determination of the extent to which public proceedings should go. Matters of great import, or those where the public submission of facts will be either useful to the agency or a protection to the public, should naturally be accorded more elaborate public procedures.” S. Rep. No. 752, 79th Cong., 1st Sess., 14-15 (1945).

The House Report is in complete accord:

“‘[U]niformity has been found possible and desirable for all classes of both equity and law actions in the courts . . . . It would seem to require no argument to demonstrate that the administrative agencies, exercising but a fraction of the judicial power may likewise operate under uniform rules of practice and procedure and that they may be required to remain within the terms of the law as to the exercise of both quasi-legislative and quasi-judicial power.’ . . . . “The bill is an outline of minimum essential rights and procedures. . . . It affords private parties a means of knowing what their rights are and how they may protect them . . . . ” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 9, 16-17 (1946).

And the Attorney General's Manual on the Administrative Procedure Act 31, 35 (1947), a contemporaneous interpretation previously given some deference by this Court because of the role played by the Department of Justice in drafting the legislation, further confirms that view. In short, all of this leaves little doubt that Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed.

There are compelling reasons for construing [5 U. S. C. § 553] in this manner. In the first place, if courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court's opinion, perfectly tailored to reach what the court perceives to be the “best” or “correct” result, judicial review would be totally unpredictable. And the agencies, operating under this vague injunction to employ the “best” procedures and facing the threat of reversal if they did not, would undoubtedly adopt full adjudicatory procedures in every instance. Not only would this totally disrupt the statutory scheme, through which Congress enacted “a formula upon which opposing social and political forces have come to rest,” Wong Yang Sung v. McGrath, 339 U. S., at 40, but all the inherent advantages of informal rulemaking would be totally lost.

Secondly, it is obvious that the court in these cases reviewed the agency’s choice of procedures on the basis of the record actually produced at the hearing, and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way. This sort of Monday morning quarterbacking not only encourages but almost compels the agency to conduct all rulemaking proceedings with the full panoply of procedural devices normally associated only with adjudicatory hearings.

Finally, and perhaps most importantly, this sort of review fundamentally misconceives the nature of the standard for judicial review of an agency rule. The court below uncritically assumed that additional procedures will automatically result in a more adequate record because it will give interested parties more of an opportunity to participate in and contribute to the proceedings. But informal rulemaking need not be based solely on the transcript of a hearing held before an agency. Indeed, the agency need not even hold a formal hearing. See 5 U.S.C. § 553(c). Thus, the adequacy of the “record” in this type of proceeding is not correlated directly to the type of procedural devices employed, but rather turns on whether the agency has followed the statutory mandate of the Administrative Procedure Act or other relevant statutes. If the agency is compelled to support the rule which it ultimately adopts with the type of record produced only after a full adjudicatory hearing, it simply will have no choice but to conduct a full adjudicatory hearing prior to promulgating every rule. In sum, this sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but seriously interfere with that process prescribed by Congress [...]

Reversed and remanded.

The End of Chevron (Strong) Deference to Agency Statutory Interpretation in Judicial Review

In Loper Bright the U.S. Supreme Court overruled longstanding doctrine involving judicial review of agency interpretations of the statutes Congress has charged them with administering. Under a doctrine established in Chevron v. Natural Resources Defense Council (1984), the Supreme Court provided a framework for judicial review of agency interpretations of the statutes they administer that provided that courts should defer to agency interpretations of statutory ambiguities within the scope of the authority delegated to the agency by Congress in the statute. The principle behind Chevron deference was that with respect to interpretations within the agency’s scope of authority, the agency had greater experience and expertise on the matter and was therefore in a better position to interpret statutory ambiguities than a generalist court. Chevron deference was modified by the requirement that the reviewing court first find that the agency’s governing statute was ambiguous on the “precise question at issue” and that the agency’s interpretation seeking deference was “reasonable.”  With Chevron overruled, it is unclear whether courts will defer to or consider agency interpretations at all. Some observers posit that court likely may apply what is known as Skidmore deference and defer to certain persuasive agency interpretations, others think that courts will decide agency statutory questions on their own.

Major Questions Doctrine

Prior to overruling Chevron outright in Loper Bright, the Supreme Court had placed limitations on the Chevron Doctrine’s scope. One of those limits is the “major questions doctrine.” The “major questions doctrine” holds that courts should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” The Supreme Court justifies this limitation with the non-delegation doctrine. According to the Supreme Court, courts are supposed to interpret “major” legal questions, not administrative bureaucrats.

Some legal scholars argue that this reading of the non-delegation doctrine mistakenly takes political decisions out of the hands of agency officials appointed by elected leaders and puts the decisions into the hands of courts that lack political accountability. They argue that the major questions doctrine encourages judges to view statutes de novo, without deferring to agency interpretations, contradicting the Chevron principles. The major questions doctrine runs counter to the idea that important political decisions should be resolved by Congress.

Another critique of the major questions doctrine is that is may override the will the Congress by restricting flexible delegations of authority to agencies and requiring Congress to legislate with specificity where what the Court determines to be a “major question” is involved. Some observers view the Court’s decisions in this regard as a “power grab” taking to itself decision making and interpretive power that had resided with the executive and legislative branches for many decades.

King v. Burwell is one in a constellation of cases where the Supreme Court relied on the major questions doctrine to override Chevron deference and assert its own statutory interpretation rather than respecting the agency’s interpretation. King v. Burwell, is a case about the Affordable Care Act (“ACA”), one of the most politically controversial laws (if not the most controversial) passed in the Obama era. The Supreme Court did not defer to the Internal Revenue Service (“IRS”) interpretation of the ACA when it decided whether insurance purchased on a Federal or State Exchange qualified for tax subsidies.

Loper Bright Enterprises v. Raimondo, 603 US _ (2024)

Opinion

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

Since our decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, (1984), we have sometimes required courts to defer to “permissible” agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently. In these cases we consider whether that doctrine should be overruled.

I

Our Chevron doctrine requires courts to use a two-step framework to interpret statutes administered by federal agencies. After determining that a case satisfies the various preconditions we have set for Chevron to apply, a reviewing court must first assess “whether Congress has directly spoken to the precise question at issue.” Id., at 842. If, and only if, congressional intent is “clear,” that is the end of the inquiry. But if the court determines that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court must, at Chevron’s second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.” Id., at 843. The reviewing courts in each of the cases before us applied Chevron’s framework to resolve in favor of the Government challenges to the same agency rule.

A

Before 1976, unregulated foreign vessels dominated fishing in the international waters off the U. S. coast, which began just 12 nautical miles offshore. Recognizing the resultant overfishing and the need for sound management of fishery resources, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (MSA). (codified as amended at 16 U.S.C. § 1801 et seq.). The MSA and subsequent amendments extended the jurisdiction of the United States to 200 nautical miles beyond the U. S. territorial sea and claimed “exclusive fishery management authority over all fish” within that area, known as the “exclusive economic zone.” § 1811(a). The National Marine Fisheries Service (NMFS) administers the MSA under a delegation from the Secretary of Commerce.

The MSA established eight regional fishery management councils composed of representatives from the coastal States, fishery stakeholders, and NMFS. The councils develop fishery management plans, which NMFS approves and promulgates as final regulations. In service of the statute’s fishery conservation and management goals, the MSA requires that certain provisions—such as “a mechanism for specifying annual catch limits ... at a level such that overfishing does not occur,” be included in these plans. The plans may also include additional discretionary provisions. For example, plans may “prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment,” “reserve a portion of the allowable biological catch of the fishery for use in scientific research,” and “prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery.”

Relevant here, a plan may also require that “one or more observers be carried on board” domestic vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.” The MSA specifies three groups that must cover costs associated with observers: (1) foreign fishing vessels operating within the exclusive economic zone (which must carry observers); (2) vessels participating in certain limited access privilege programs, which impose quotas permitting fishermen to harvest only specific quantities of a fishery’s total allowable catch; and (3) vessels within the jurisdiction of the North Pacific Council, where many of the largest and most successful commercial fishing enterprises in the Nation operate. In the latter two cases, the MSA expressly caps the relevant fees at two or three percent of the value of fish harvested on the vessels. And in general, it authorizes the Secretary to impose “sanctions” when “any payment required for observer services provided to or contracted by an owner or operator ... has not been paid.”

The MSA does not contain similar terms addressing whether Atlantic herring fishermen may be required to bear costs associated with any observers a plan may mandate. And at one point, NMFS fully funded the observer coverage the New England Fishery Management Council required in its plan for the Atlantic herring fishery. In 2013, however, the council proposed amending its fishery management plans to empower it to require fishermen to pay for observers if federal funding became unavailable. Several years later, NMFS promulgated a rule approving the amendment.

With respect to the Atlantic herring fishery, the Rule created an industry funded program that aims to ensure observer coverage on 50 percent of trips undertaken by vessels with certain types of permits. Under that program, vessel representatives must “declare into” a fishery before beginning a trip by notifying NMFS of the trip and announcing the species the vessel intends to harvest. If NMFS determines that an observer is required, but declines to assign a Government-paid one, the vessel must contract with and pay for a Government-certified third-party observer. NMFS estimated that the cost of such an observer would be up to $710 per day, reducing annual returns to the vessel owner by up to 20 percent.

B

Petitioners Loper Bright Enterprises, Inc., H&L Axelsson, Inc., Lund Marr Trawlers LLC, and Scombrus One LLC are family businesses that operate in the Atlantic herring fishery. In February 2020, they challenged the Rule under the MSA, 16 U.S.C. § 1855(f), which incorporates the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. In relevant part, they argued that the MSA does not authorize NMFS to mandate that they pay for observers required by a fishery management plan. The District Court granted summary judgment to the Government. It concluded that the MSA authorized the Rule, but noted that even if these petitioners’ “arguments were enough to raise an ambiguity in the statutory text,” deference to the agency’s interpretation would be warranted under Chevron.

A divided panel of the D. C. Circuit affirmed. See 45 F.4th 359 (2022). The majority addressed various provisions of the MSA and concluded that it was not “wholly unambiguous” whether NMFS may require Atlantic herring fishermen to pay for observers. Id., at 366. Because there remained “some question” as to Congress’s intent, the court proceeded to Chevron’s second step and deferred to the agency’s interpretation as a “reasonable” construction of the MSA, 45 F.4th at 370. In dissent, Judge Walker concluded that Congress’s silence on industry funded observers for the Atlantic herring fishery—coupled with the express provision for such observers in other fisheries and on foreign vessels—unambiguously indicated that NMFS lacked the authority to “require [Atlantic herring] fishermen to pay the wages of at-sea monitors.”

C

Petitioners Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC own two vessels that operate in the Atlantic herring fishery: the F/V Relentless and the F/V Persistence. These vessels use small-mesh bottom-trawl gear and can freeze fish at sea, so they can catch more species of fish and take longer trips than other vessels (about 10 to 14 days, as opposed to the more typical 2 to 4). As a result, they generally declare into multiple fisheries per trip so they can catch whatever the ocean offers up. If the vessels declare into the Atlantic herring fishery for a particular trip, they must carry an observer for that trip if NMFS selects the trip for coverage, even if they end up harvesting fewer herring than other vessels—or no herring at all.

This set of petitioners, like those in the D. C. Circuit case, filed a suit challenging the Rule as unauthorized by the MSA. The District Court, like the D. C. Circuit, deferred to NMFS’s contrary interpretation under Chevron and thus granted summary judgment to the Government.

The First Circuit affirmed. See 62 F.4th 621 (2023). It relied on a “default norm” that regulated entities must bear compliance costs, as well as the MSA’s sanctions provision. And it rejected petitioners’ argument that the express statutory authorization of three industry funding programs demonstrated that NMFS lacked the broad implicit authority it asserted to impose such a program for the Atlantic herring fishery. The court ultimately concluded that the “[a]gency’s interpretation of its authority to require at-sea monitors who are paid for by owners of regulated vessels does not ‘exceed[ ] the bounds of the permissible.’ In reaching that conclusion, the First Circuit stated that it was applying Chevron’s two-step framework. 62 F.4th at 628. But it did not explain which aspects of its analysis were relevant to which of Chevron’s two steps. Similarly, it declined to decide whether the result was “a product of Chevron step one or step two.” Id., at 634.

We granted certiorari in both cases, limited to the question whether Chevron should be overruled or clarified.

II

A

Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear. Cognizant of the limits of human language and foresight, they anticipated that “[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation,” would be “more or less obscure and equivocal, until their meaning” was settled “by a series of particular discussions and adjudications.” The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison).

The Framers also envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” Unlike the political branches, the courts would by design exercise “neither Force nor Will, but merely judgment.” To ensure the “steady, upright and impartial administration of the laws,” the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches.

This Court embraced the Framers’ understanding of the judicial function early on. In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” And in the following decades, the Court understood “interpret[ing] the laws, in the last resort,” to be a “solemn duty” of the Judiciary. When the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497, 515, 10 L.Ed. 559 (1840).

The Court also recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. For example, in Edwards’ Lessee v. Darby, 12 Wheat. 206, 6 L.Ed. 603 (1827), the Court explained that “[i]n the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.” 

Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. That is because “the longstanding ‘practice of the government’ ”—like any other interpretive aid—“can inform [a court’s] determination of ‘what the law is.’ ” NLRB v. Noel Canning, 573 U.S. 513, 525, (2014) (first quoting McCulloch v. Maryland, 4 Wheat. 316, 401, 4 L.Ed. 579 (1819); then quoting Marbury, 1 Cranch at 177). The Court also gave “the most respectful consideration” to Executive Branch interpretations simply because “[t]he officers concerned [were] usually able men, and masters of the subject,” who were “[n]ot unfrequently ... the draftsmen of the laws they [were] afterwards called upon to interpret.” United States v. Moore, 95 U.S. 760 (1878).

“Respect,” though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge “certainly would not be bound to adopt the construction given by the head of a department.” Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in cases where [a court’s] own judgment ... differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.”

B

The New Deal ushered in a “rapid expansion of the administrative process.” United States v. Morton Salt Co., 338 U.S. 632, 644 (1950). But as new agencies with new powers proliferated, the Court continued to adhere to the traditional understanding that questions of law were for courts to decide, exercising independent judgment.

During this period, the Court often treated agency determinations of fact as binding on the courts, provided that there was “evidence to support the findings.” “When the legislature itself acts within the broad field of legislative discretion,” the Court reasoned, “its determinations are conclusive.” Congress could therefore “appoint[ ] an agent to act within that sphere of legislative authority” and “endow the agent with power to make findings of fact which are conclusive, provided the requirements of due process which are specially applicable to such an agency are met, as in according a fair hearing and acting upon evidence and not arbitrarily.”

But the Court did not extend similar deference to agency resolutions of questions of law. It instead made clear, repeatedly, that “[t]he interpretation of the meaning of statutes, as applied to justiciable controversies,” was “exclusively a judicial function.” United States v. American Trucking Assns., Inc., 310 U.S. 534, 544 (1940). The Court understood, in the words of Justice Brandeis, that “[t]he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied.” It also continued to note, as it long had, that the informed judgment of the Executive Branch—especially in the form of an interpretation issued contemporaneously with the enactment of the statute—could be entitled to “great weight.”

Perhaps most notably along those lines, in Skidmore v. Swift & Co., 323 U.S. 134 (1944), the Court explained that the “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon ... specialized experience,” “constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,” even on legal questions. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

On occasion, to be sure, the Court applied deferential review upon concluding that a particular statute empowered an agency to decide how a broad statutory term applied to specific facts found by the agency. For example, in Gray v. Powell, 314 U.S. 402 (1941), the Court deferred to an administrative conclusion that a coal-burning railroad that had arrangements with several coal mines was not a coal “producer” under the Bituminous Coal Act of 1937. Congress had “specifically” granted the agency the authority to make that determination. The Court thus reasoned that “[w]here, as here, a determination has been left to an administrative body, this delegation will be respected and the administrative conclusion left untouched” so long as the agency’s decision constituted “a sensible exercise of judgment.” Similarly, in NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944), the Court deferred to the determination of the National Labor Relations Board that newsboys were “employee[s]” within the meaning of the National Labor Relations Act. The Act had, in the Court’s judgment, “assigned primarily” to the Board the task of marking a “definitive limitation around the term ‘employee.’ The Court accordingly viewed its own role as “limited” to assessing whether the Board’s determination had a “ ‘warrant in the record’ and a reasonable basis in law.”

Such deferential review, though, was cabined to factbound determinations like those at issue in Gray and Hearst. Neither Gray nor Hearst purported to refashion the longstanding judicial approach to questions of law. In Gray, after deferring to the agency’s determination that a particular entity was not a “producer” of coal, the Court went on to discern, based on its own reading of the text, whether another statutory term—“other disposal” of coal—encompassed a transaction lacking a transfer of title. Court evidently perceived no basis for deference to the agency with respect to that pure legal question. And in Hearst, the Court proclaimed that “[u]ndoubtedly questions of statutory interpretation ... are for the courts to resolve, giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute.” At least with respect to questions it regarded as involving “statutory interpretation,” the Court thus did not disturb the traditional rule. It merely thought that a different approach should apply where application of a statutory term was sufficiently intertwined with the agency’s factfinding.

In any event, the Court was far from consistent in reviewing deferentially even such factbound statutory determinations. Often the Court simply interpreted and applied the statute before it.

[ . . . ]

Nothing in the New Deal era or before it thus resembled the deference rule the Court would begin applying decades later to all varieties of agency interpretations of statutes. Instead, just five years after Gray and two after Hearst, Congress codified the opposite rule: the traditional understanding that courts must “decide all relevant questions of law.” 5 U.S.C. § 706.3

C

Congress in 1946 enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U.S. at 644. It was the culmination of a “comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670–671 (1986).

In addition to prescribing procedures for agency action, the APA delineates the basic contours of judicial review of such action. As relevant here, Section 706 directs that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. It further requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be ... not in accordance with law.” § 706(2)(A).

The APA thus codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, § 706 (emphasis added)—even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential. See § 706(2)(A) (agency action to be set aside if “arbitrary, capricious, [or] an abuse of discretion”); § 706(2)(E) (agency factfinding in formal proceedings to be set aside if “unsupported by substantial evidence”).

In a statute designed to “serve as the fundamental charter of the administrative state,” Kisor v. Wilkie, 588 U.S. 558, 580 (2019) (plurality opinion), Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled pre-APA understanding that deciding such questions was “exclusively a judicial function.” But nothing in the APA hints at such a dramatic departure. On the contrary, by directing courts to “interpret constitutional and statutory provisions” without differentiating between the two, Section 706 makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference. Under the APA, it thus “remains the responsibility of the court to decide whether the law means what the agency says.” Perez v. Mortgage Bankers Assn., 575 U.S. 92, 109 (2015) (Scalia, J., concurring in judgment).

The text of the APA means what it says. And a look at its history if anything only underscores that plain meaning. According to both the House and Senate Reports on the legislation, Section 706 “provide[d] that questions of law are for courts rather than agencies to decide in the last analysis.” Some of the legislation’s most prominent supporters articulated the same view. Even the Department of Justice—an agency with every incentive to endorse a view of the APA favorable to the Executive Branch—opined after its enactment that Section 706 merely “restate[d] the present law as to the scope of judicial review.” Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947). That “present law,” as we have described, adhered to the traditional conception of the judicial function.

[ . . . ]

The APA, in short, incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions. In exercising such judgment, though, courts may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes. Such interpretations “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance” consistent with the APA. Skidmore, 323 U.S. at 140. And interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.

In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes “expressly delegate[ ]” to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to “fill up the details” of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that “leaves agencies with flexibility,” such as “appropriate” or “reasonable.”

When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, “fix[ing] the boundaries of [the] delegated authority,” and ensuring the agency has engaged in “ ‘reasoned decisionmaking’ ” within those boundaries. By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.

III

The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.

A

In the decades between the enactment of the APA and this Court’s decision in Chevron, courts generally continued to review agency interpretations of the statutes they administer by independently examining each statute to determine its meaning. As an early proponent (and later critic) of Chevron recounted, courts during this period thus identified delegations of discretionary authority to agencies on a “statute-by-statute basis.” A. Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 516.

Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional approach. The question in the case was whether an EPA regulation “allow[ing] States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single ‘bubble’ ” was consistent with the term “stationary source” as used in the Clean Air Act. 467 U.S. at 840. To answer that question of statutory interpretation, the Court articulated and employed a now familiar two-step approach broadly applicable to review of agency action.

The first step was to discern “whether Congress ha[d] directly spoken to the precise question at issue.” The Court explained that “[i]f the intent of Congress is clear, that is the end of the matter,” and courts were therefore to “reject administrative constructions which are contrary to clear congressional intent.” To discern such intent, the Court noted, a reviewing court was to “employ[ ] traditional tools of statutory construction.”

Without mentioning the APA, or acknowledging any doctrinal shift, the Court articulated a second step applicable when “Congress ha[d] not directly addressed the precise question at issue.” In such a case—that is, a case in which “the statute [was] silent or ambiguous with respect to the specific issue” at hand—a reviewing court could not “simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” A court instead had to set aside the traditional interpretive tools and defer to the agency if it had offered “a permissible construction of the statute,” even if not “the reading the court would have reached if the question initially had arisen in a judicial proceeding,” That directive was justified, according to the Court, by the understanding that administering statutes “requires the formulation of policy” to fill statutory “gap[s]”; by the long judicial tradition of according “considerable weight” to Executive Branch interpretations; and by a host of other considerations, including the complexity of the regulatory scheme, EPA’s “detailed and reasoned” consideration, the policy-laden nature of the judgment supposedly required, and the agency’s indirect accountability to the people through the President.

Employing this new test, the Court concluded that Congress had not addressed the question at issue with the necessary “level of specificity” and that EPA’s interpretation was “entitled to deference.” It did not matter why Congress, as the Court saw it, had not squarely addressed the question, or that “the agency ha[d] from time to time changed its interpretation.” The latest EPA interpretation was a permissible reading of the Clean Air Act, so under the Court’s new rule, that reading controlled.

Initially, Chevron “seemed destined to obscurity.” The Court did not at first treat it as the watershed decision it was fated to become; it was hardly cited in cases involving statutory questions of agency authority. But within a few years, both this Court and the courts of appeals were routinely invoking its two-step framework as the governing standard in such cases. As the Court did so, it revisited the doctrine’s justifications. Eventually, the Court decided that Chevron rested on “a presumption that Congress, when it left ambiguity in a statute meant for implementation 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.”

B

Neither Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA. The “law of deference” that this Court has built on the foundation laid in Chevron has instead been “[h]eedless of the original design” of the APA.

1

Chevron defies the command of the APA that “the reviewing court”—not the agency whose action it reviews—is to “decide all relevant questions of law” and “interpret ... statutory provisions.” § 706 (emphasis added). It requires a court to ignore, not follow, “the reading the court would have reached” had it exercised its independent judgment as required by the APA. And although exercising independent judgment is consistent with the “respect” historically given to Executive Branch interpretations, Chevron insists on much more. It demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time. Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else—unless the prior court happened to also say that the statute is “unambiguous.” Brand X, 545 U.S. at 982. That regime is the antithesis of the time honored approach the APA prescribes. In fretting over the prospect of “allow[ing]” a judicial interpretation of a statute “to override an agency’s” in a dispute before a court, Chevron turns the statutory scheme for judicial review of agency action upside down.

Chevron cannot be reconciled with the APA, as the Government and the dissent contend, by presuming that statutory ambiguities are implicit delegations to agencies. Presumptions have their place in statutory interpretation, but only to the extent that they approximate reality. Chevron’s presumption does not, because “[a]n ambiguity is simply not a delegation of law-interpreting power. Chevron confuses the two.” As Chevron itself noted, ambiguities may result from an inability on the part of Congress to squarely answer the question at hand, or from a failure to even “consider the question” with the requisite precision. In neither case does an ambiguity necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. And many or perhaps most statutory ambiguities may be unintentional. As the Framers recognized, ambiguities will inevitably follow from “the complexity of objects, ... the imperfection of the human faculties,” and the simple fact that “no language is so copious as to supply words and phrases for every complex idea.” 

Courts, after all, routinely confront statutory ambiguities in cases having nothing to do with Chevron—cases that do not involve agency interpretations or delegations of authority. Of course, when faced with a statutory ambiguity in such a case, the ambiguity is not a delegation to anybody, and a court is not somehow relieved of its obligation to independently interpret the statute. Courts in that situation do not throw up their hands because “Congress’s instructions have” supposedly “run out,” leaving a statutory “gap.” Courts instead understand that such statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning. That is the whole point of having written statutes; “every statute’s meaning is fixed at the time of enactment.” So instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity.

In an agency case as in any other, though, even if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same—“the reading the court would have reached” if no agency were involved. It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.

Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers, as noted, anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. And even Chevron itself reaffirmed that “[t]he judiciary is the final authority on issues of statutory construction” and recognized that “in the absence of an administrative interpretation,” it is “necessary” for a court to “impose its own construction on the statute.” Chevron gravely erred, though, in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction—the tools courts use every day—is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.

2

The Government responds that Congress must generally intend for agencies to resolve statutory ambiguities because agencies have subject matter expertise regarding the statutes they administer; because deferring to agencies purportedly promotes the uniform construction of federal law; and because resolving statutory ambiguities can involve policymaking best left to political actors, rather than courts. The dissent offers more of the same. But none of these considerations justifies Chevron’s sweeping presumption of congressional intent.

Beginning with expertise, we recently noted that interpretive issues arising in connection with a regulatory scheme often “may fall more naturally into a judge’s bailiwick” than an agency’s. We thus observed that “[w]hen the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.” Chevron’s broad rule of deference, though, demands that courts presume just the opposite. Under that rule, ambiguities of all stripes trigger deference. Indeed, the Government and, seemingly, the dissent continue to defend the proposition that Chevron applies even in cases having little to do with an agency’s technical subject matter expertise.

But even when an ambiguity happens to implicate a technical matter, it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to the agency. Congress expects courts to handle technical statutory questions. “[M]any statutory cases” call upon “courts [to] interpret the mass of technical detail that is the ordinary diet of the law” and courts did so without issue in agency cases before Chevron. Courts, after all, do not decide such questions blindly. The parties and amici in such cases are steeped in the subject matter, and reviewing courts have the benefit of their perspectives. In an agency case in particular, the court will go about its task with the agency’s “body of experience and informed judgment,” among other information, at its disposal. Skidmore, 323 U.S. at 140. And although an agency’s interpretation of a statute “cannot bind a court,” it may be especially informative “to the extent it rests on factual premises within [the agency’s] expertise.” Such expertise has always been one of the factors which may give an Executive Branch interpretation particular “power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140.

For those reasons, delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise. The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute.

Nor does a desire for the uniform construction of federal law justify Chevron. Given inconsistencies in how judges apply Chevron, it is unclear how much the doctrine as a whole (as opposed to its highly deferential second step) actually promotes such uniformity. In any event, there is little value in imposing a uniform interpretation of a statute if that interpretation is wrong. We see no reason to presume that Congress prefers uniformity for uniformity’s sake over the correct interpretation of the laws it enacts.

The view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken, for it rests on a profound misconception of the judicial role. It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation. That task does not suddenly become policymaking just because a court has an “agency to fall back on.” Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences. Indeed, the Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches. They were to construe the law with “[c]lear heads ... and honest hearts,” not with an eye to policy preferences that had not made it into the statute.

That is not to say that Congress cannot or does not confer discretionary authority on agencies. Congress may do so, subject to constitutional limits, and it often has. But to stay out of discretionary policymaking left to the political branches, judges need only fulfill their obligations under the APA to independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA. By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron does not prevent judges from making policy. It prevents them from judging.

3

In truth, Chevron’s justifying presumption is, as Members of this Court have often recognized, a fiction. So we have spent the better part of four decades imposing one limitation on Chevron after another, pruning its presumption on the understanding that “where it is in doubt that Congress actually intended to delegate particular interpretive authority to an agency, Chevron is ‘inapplicable.’ ” United States v. Mead Corp., 533 U.S. 218, 230 (2001) (quoting Christensen v. Harris County, 529 U.S. 576, 597 (2000) (Breyer, J., dissenting)).

Consider the many refinements we have made in an effort to match Chevron’s presumption to reality. We have said that Chevron applies only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” In practice, that threshold requirement—sometimes called Chevron “step zero”—largely limits Chevron to “the fruits of notice-and-comment rulemaking or formal adjudication.” But even when those processes are used, deference is still not warranted “where the regulation is ‘procedurally defective’—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 220 (2016) (quoting Mead, 533 U.S. at 227).

Even where those procedural hurdles are cleared, substantive ones remain. Most notably, Chevron does not apply if the question at issue is one of “deep ‘economic and political significance.’ ” King v. Burwell, 576 U.S. 473, 486 (2015). We have instead expected Congress to delegate such authority “expressly” if at all, for “[e]xtraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s],’ ” West Virginia v. EPA, 597 U.S. 697, 723 (2022). Nor have we applied Chevron to agency interpretations of judicial review provisions, or to statutory schemes not administered by the agency seeking deference. And we have sent mixed signals on whether Chevron applies when a statute has criminal applications. 

Confronted with this byzantine set of preconditions and exceptions, some courts have simply bypassed Chevron, saying it makes no difference for one reason or another. And even when they do invoke Chevron, courts do not always heed the various steps and nuances of that evolving doctrine. In one of the cases before us today, for example, the First Circuit both skipped “step zero,” and refused to “classify [its] conclusion as a product of Chevron step one or step two”—though it ultimately appears to have deferred under step two.

This Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. But Chevron remains on the books. So litigants must continue to wrestle with it, and lower courts—bound by even our crumbling precedents—understandably continue to apply it.

The experience of the last 40 years has thus done little to rehabilitate Chevron. It has only made clear that Chevron’s fictional presumption of congressional intent was always unmoored from the APA’s demand that courts exercise independent judgment in construing statutes administered by agencies. At best, our intricate Chevron doctrine has been nothing more than a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA by yielding to an agency the express responsibility, vested in “the reviewing court,” to “decide all relevant questions of law” and “interpret ... statutory provisions.” § 706.

IV

The only question left is whether stare decisis, the doctrine governing judicial adherence to precedent, requires us to persist in the Chevron project. It does not. Stare decisis is not an “inexorable command,” and the stare decisis considerations most relevant here—“the quality of [the precedent’s] reasoning, the workability of the rule it established, ... and reliance on the decision,”—all weigh in favor of letting Chevron go.

[Stare decisis discussion omitted]

This is one of those cases. Chevron was a judicial invention that required judges to disregard their statutory duties. And the only way to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,” is for us to leave Chevron behind.

By doing so, however, we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology. Mere reliance on Chevron cannot constitute a “ ‘special justification’ ” for overruling such a holding, because to say a precedent relied on Chevron is, at best, “just an argument that the precedent was wrongly decided.” That is not enough to justify overruling a statutory precedent.

* * *

The dissent ends by quoting Chevron: “ ‘Judges are not experts in the field.’ ” That depends, of course, on what the “field” is. If it is legal interpretation, that has been, “emphatically,” “the province and duty of the judicial department” for at least 221 years. Marbury, 1 Cranch at 177. The rest of the dissent’s selected epigraph is that judges “ ‘are not part of either political branch.’ ” Indeed. Judges have always been expected to apply their “judgment” independent of the political branches when interpreting the laws those branches enact. The Federalist No. 78, at 523. And one of those laws, the APA, bars judges from disregarding that responsibility just because an Executive Branch agency views a statute differently.

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

Because the D. C. and First Circuits relied on Chevron in deciding whether to uphold the Rule, their judgments are vacated, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice KAGAN, with whom Justice SOTOMAYOR and Justice JACKSON join, dissenting.

For 40 years, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), has served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies. Under Chevron, a court uses all its normal interpretive tools to determine whether Congress has spoken to an issue. If the court finds Congress has done so, that is the end of the matter; the agency’s views make no difference. But if the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap, then a choice must be made. Who should give content to a statute when Congress’s instructions have run out? Should it be a court? Or should it be the agency Congress has charged with administering the statute? The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness. That rule has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.

And the rule is right. This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court. Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not. And some present policy choices, including trade-offs between competing goods. Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy. And of course Congress has conferred on that expert, experienced, and politically accountable agency the authority to administer—to make rules about and otherwise implement—the statute giving rise to the ambiguity or gap. Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740–741 (1996).

Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. See, e.g., National Federation of Independent Business v. OSHA, 595 U.S. 109 (2022); West Virginia v. EPA, 597 U.S. 697 (2022); Biden v. Nebraska, 600 U. S. 477 (2023). But evidently that was, for this Court, all too piecemeal. In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar. It defends that move as one (suddenly) required by the (nearly 80-year-old) Administrative Procedure Act. But the Act makes no such demand. Today’s decision is not one Congress directed. It is entirely the majority’s choice.

And the majority cannot destroy one doctrine of judicial humility without making a laughing-stock of a second. (If opinions had titles, a good candidate for today’s would be Hubris Squared.) Stare decisis is, among other things, a way to remind judges that wisdom often lies in what prior judges have done. It is a brake on the urge to convert “every new judge’s opinion” into a new legal rule or regime. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 388 (2022) (joint opinion of Breyer, SOTOMAYOR, and KAGAN, JJ., dissenting). Chevron is entrenched precedent, entitled to the protection of stare decisis, as even the majority acknowledges. In fact, Chevron is entitled to the supercharged version of that doctrine because Congress could always overrule the decision, and because so many governmental and private actors have relied on it for so long. Because that is so, the majority needs a “particularly special justification” for its action. Kisor v. Wilkie, 588 U.S. 558, 588 (2019). But the majority has nothing that would qualify. It barely tries to advance the usual factors this Court invokes for overruling precedent. Its justification comes down, in the end, to this: Courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.

I

Begin with the problem that gave rise to Chevron (and also to its older precursors): The regulatory statutes Congress passes often contain ambiguities and gaps. Sometimes they are intentional. Perhaps Congress “consciously desired” the administering agency to fill in aspects of the legislative scheme, believing that regulatory experts would be “in a better position” than legislators to do so. Chevron, 467 U.S. at 865. Or “perhaps Congress was unable to forge a coalition on either side” of a question, and the contending parties “decided to take their chances with” the agency’s resolution. Sometimes, though, the gaps or ambiguities are what might be thought of as predictable accidents. They may be the result of sloppy drafting, a not infrequent legislative occurrence. Or they may arise from the well-known limits of language or foresight. “The subject matter” of a statutory provision may be too “specialized and varying” to “capture in its every detail.” Or the provision may give rise, years or decades down the road, to an issue the enacting Congress could not have anticipated. Whichever the case—whatever the reason—the result is to create uncertainty about some aspect of a provision’s meaning.

Consider a few examples from the caselaw. They will help show what a typical Chevron question looks like—or really, what a typical Chevron question is. Because when choosing whether to send some class of questions mainly to a court, or mainly to an agency, abstract analysis can only go so far; indeed, it may obscure what matters most. So I begin with the concrete:

• Under the Public Health Service Act, the Food and Drug Administration (FDA) regulates “biological product[s],” including “protein[s].” 42 U.S.C. § 262(i)(1). When does an alpha amino acid polymer qualify as such a “protein”? Must it have a specific, defined sequence of amino acids? See Teva Pharmaceuticals USA, Inc. v. FDA, 514 F.Supp.3d 66, 79–80, 93–106 (D.C.C. 2020).

[ * * * ]

• Or take Chevron itself. In amendments to the Clean Air Act, Congress told States to require permits for modifying or constructing “stationary sources” of air pollution. 42 U.S.C. § 7502(c)(5). Does the term “stationary source[ ]” refer to each pollution-emitting piece of equipment within a plant? Or does it refer to the entire plant, and thus allow escape from the permitting requirement when increased emissions from one piece of equipment are offset by reductions from another?

In each case, a statutory phrase has more than one reasonable reading. And Congress has not chosen among them: It has not, in any real-world sense, “fixed” the “single, best meaning” at “the time of enactment” (to use the majority’s phrase). A question thus arises: Who decides which of the possible readings should govern?

This Court has long thought that the choice should usually fall to agencies, with courts broadly deferring to their judgments. For the last 40 years, that doctrine has gone by the name of Chevron deference, after the 1984 decision that formalized and canonized it. In Chevron, the Court set out a simple two-part framework for reviewing an agency’s interpretation of a statute that it administers. First, the reviewing court must determine whether Congress has “directly spoken to the precise question at issue.” That inquiry is rigorous: A court must exhaust all the “traditional tools of statutory construction” to divine statutory meaning. And when it can find that meaning—a “single right answer”—that is “the end of the matter”: The court cannot defer because it “must give effect to the unambiguously expressed intent of Congress.” But if the court, after using its whole legal toolkit, concludes that “the statute is silent or ambiguous with respect to the specific issue” in dispute—for any of the not-uncommon reasons discussed above—then the court must cede the primary interpretive role. At that second step, the court asks only whether the agency construction is within the sphere of “reasonable” readings. If it is, the agency’s interpretation of the statute that it every day implements will control.

That rule, the Court has long explained, rests on a presumption about legislative intent—about what Congress wants when a statute it has charged an agency with implementing contains an ambiguity or a gap. An enacting Congress, as noted above, knows those uncertainties will arise, even if it does not know what they will turn out to be. And every once in a while, Congress provides an explicit instruction for dealing with that contingency—assigning primary responsibility to the courts, or else to an agency. But much more often, Congress does not say. Thus arises the need for a presumption—really, a default rule—for what should happen in that event. Does a statutory silence or ambiguity then go to a court for resolution? Or to an agency? This Court has long thought Congress would choose an agency, with courts serving only as a backstop to make sure the agency makes a reasonable choice among the possible readings. Or said otherwise, Congress would select the agency it has put in control of a regulatory scheme to exercise the “degree of discretion” that the statute’s lack of clarity or completeness allows. Smiley, 517 U.S. at 741. Of course, Congress can always refute that presumptive choice—can say that, really, it would prefer courts to wield that discretionary power. But until then, the presumption cuts in the agency’s favor.1 The next question is why.

For one, because agencies often know things about a statute’s subject matter that courts could not hope to. The point is especially stark when the statute is of a “scientific or technical nature.” Agencies are staffed with “experts in the field” who can bring their training and knowledge to bear on open statutory questions. Chevron, 467 U.S. at 865.

[ * * * ]

The majority’s whole argument for overturning Chevron relies on Section 706. But the text of Section 706 does not support that result. And neither does the contemporaneous practice, which that text was supposed to reflect. So today’s decision has no basis in the only law the majority deems relevant. It is grounded on air.

[ * * * ]

Chevron v. Natural Resources Defense Council, Inc. (“NRDC”)

467 U.S. 837 (1984)

JUSTICE STEVENS delivered the opinion of the Court.

In the Clean Air Act Amendments of 1977, Congress enacted certain requirements applicable to States that had not achieved the national air quality standards established by the Environmental Protection Agency (EPA). [The 1977 Amendments required permits for “new or modified stationary sources” of air pollution. The EPA promulgated a rule that interpreted the phrase “stationary source” to include a “bubble policy.” The bubble policy treats industrial plants with many pollution-emitting devices (“smokestacks,” etc.) as a single “stationary source.” This interpretation of the statute lets plants with multiple air-polluting devices install or modify one piece of equipment without obtaining a permit, so long as the alteration does not increase the plant’s total emissions. NRDC argued that the EPA misinterpreted the phrase “stationary source,” arguing that Congress did not intend it to include a “bubble policy.” Instead, the NRDC argued that Congress intended that a plant would have to obtain a permit any time it created a new source of pollution or modified an existing source, if the effect is to increase pollution, even if the increased pollution is offset by decreasing pollution from other sources. The Court of Appeals agreed with NRDC, because it believed the NRDC’s interpretation better served the spirit of the 1977 Clean Air Act amendments.]

The basic legal error of the Court of Appeals was to adopt a static judicial definition of the term “stationary source” when it had decided that Congress itself had not commanded that definition [...]

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question 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. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, 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.

“The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U. S. 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations.

“. . . If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” United States v. Shimer, 367 U. S. 374, 382, 383 (1961).

In light of these well-settled principles it is clear that the Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the question before it was not whether in its view the concept is “inappropriate” in the general context of a program designed to improve air quality, but whether the Administrator’s view that it is appropriate in the context of this particular program is a reasonable one. Based on the examination of the legislation and its history which follows, we agree with the Court of Appeals that Congress did not have a specific intention on the applicability of the bubble concept in these cases, and conclude that the EPA’s use of that concept here is a reasonable policy choice for the agency to make.

[The Court reviews the legislative history of the 1977 Clean Air Act amendments, and analyzes the language and Congressional intent of those amendments. While the amendments do not specifically reference the “bubble concept,” the EPA explained, in depth, its rationale for considering a bubble exemption in its proposed rule. In contrast, the legislative history does not mention the “bubble” concept, nor does it speak directly to the “stationary source” interpretation at hand. The Court concluded, “We find that the legislative history as a whole is silent on the precise issue before us. It is, however, consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments.”]

The arguments over policy that are advanced in the parties’ briefs create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency and in the 32 jurisdictions opting for the “bubble concept,” but one which was never waged in the Congress. Such policy arguments are more properly addressed to legislators or administrators, not to judges.

In these cases the Administrator’s interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies. Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not which of these things occurred.

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: “Our Constitution vests such responsibilities in the political branches.” TVA v. Hill, 437 U. S. 153, 195 (1978).

We hold that the EPA’s definition of the term “source” is a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth. “The Regulations which the Administrator has adopted provide what the agency could allowably view as . . . [an] effective reconciliation of these twofold ends . . . .” United States v. Shimer, 367 U. S., at 383.

The judgment of the Court of Appeals is reversed.

Skidmore v. Swift & Co.

323 U.S. 134 (1944)

MR. JUSTICE JACKSON delivered the opinion of the Court.

Seven employees of the Swift and Company packing plant at Fort Worth, Texas, brought an action under the Fair Labor Standards Act to recover overtime. [The employees worked at the packing plant during the day and were paid weekly salaries for that work. However, the same employees also stayed at the fire hall (or “within hailing distance”) three and a half to four nights a week to answer alarms in case of a fire. For this work, employees would be paid fifty to sixty-four cents for every alarm they answered, but would not be paid hourly overtime wages. The employees seek that overtime pay.]

The trial court found [...] as a “conclusion of law” that “the time plaintiffs spent in the fire hall subject to call to answer fire alarms does not constitute hours worked, for which overtime compensation is due them under the Fair Labor Standards Act, as interpreted by the Administrator and the Courts,” and in its opinion observed, “of course we know pursuing such pleasurable occupations or performing such personal chores, does not constitute work.” The Circuit Court of Appeals affirmed.

[W]e hold that no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time [...] We do not minimize the difficulty of such an inquiry where the arrangements of the parties have not contemplated the problem posed by the statute. But it does not differ in nature or in the standards to guide judgment from that which frequently confronts courts where they must find retrospectively the effect of contracts as to matters which the parties failed to anticipate or explicitly to provide for.

Congress did not utilize the services of an administrative agency to find facts and to determine in the first instance whether particular cases fall within or without the Act. Instead, it put this responsibility on the courts. But it did create the office of Administrator, impose upon him a variety of duties, endow him with powers to inform himself of conditions in industries and employments subject to the Act, and put on him the duties of bringing injunction actions to restrain violations. Pursuit of his duties has accumulated a considerable experience in the problems of ascertaining working time in employments involving periods of inactivity and a knowledge of the customs prevailing in reference to their solution. From these he is obliged to reach conclusions as to conduct without the law, so that he should seek injunctions to stop it, and that within the law, so that he has no call to interfere. He has set forth his views of the application of the Act under different circumstances in an interpretative bulletin and in informal rulings. They provide a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it. 

The Administrator thinks the problems presented by inactive duty require a flexible solution, rather than the all-in or all-out rules respectively urged by the parties in this case, and his Bulletin endeavors to suggest standards and examples to guide in particular situations. In some occupations, it says, periods of inactivity are not properly counted as working time even though the employee is subject to call. Examples are an operator of a small telephone exchange where the switchboard is in her home and she ordinarily gets several hours of uninterrupted sleep each night; or a pumper of a stripper well or watchman of a lumber camp during the off season, who may be on duty twenty-four hours a day but ordinarily “has a normal night’s sleep, has ample time in which to eat his meals, and has a certain amount of time for relaxation and entirely private pursuits.” [...] “Hours worked are not limited to the time spent in active labor but include time given by the employee to the employer. . . .”

The facts of this case do not fall within any of the specific examples given, but the conclusion of the Administrator, as expressed in the brief amicus curiae, is that the general tests which he has suggested point to the exclusion of sleeping and eating time of these employees from the workweek and the inclusion of all other on-call time: although the employees were required to remain on the premises during the entire time, the evidence shows that they were very rarely interrupted in their normal sleeping and eating time, and these are pursuits of a purely private nature which would presumably occupy the employees’ time whether they were on duty or not and which apparently could be pursued adequately and comfortably in the required circumstances; the rest of the time is different because there is nothing in the record to suggest that, even though pleasurably spent, it was spent in the ways the men would have chosen had they been free to do so.

There is no statutory provision as to what, if any, deference courts should pay to the Administrator’s conclusions. And, while we have given them notice, we have had no occasion to try to prescribe their influence. The rulings of this Administrator are not reached as a result of hearing adversary proceedings in which he finds facts from evidence and reaches conclusions of law from findings of fact. They are not, of course, conclusive, even in the cases with which they directly deal, much less in those to which they apply only by analogy. They do not constitute an interpretation of the Act or a standard for judging factual situations which binds a district court’s processes, as an authoritative pronouncement of a higher court might do. But the Administrator’s policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case. They do determine the policy which will guide applications for enforcement by injunction on behalf of the Government. Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons. The fact that the Administrator’s policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect. This Court has long given considerable and in some cases decisive weight to Treasury Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin.

We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

[In] this case, although the District Court referred to the Administrator’s Bulletin, its evaluation and inquiry were apparently restricted by its notion that waiting time may not be work, an understanding of the law which we hold to be erroneous. Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent herewith.

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into the air. 84 Stat. 1683, 42 U. S. C. § 7411(a)(1). That standard may be different for new and existing plants, but in each case it must reflect the “best system of emission reduction” that the Agency has determined to be “adequately demonstrated” for the particular category.[] For existing plants, the States then implement that requirement by issuing rules restricting emissions from sources within their borders.

Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.

The question before us is whether this broader conception of EPA's authority is within the power granted to it by the Clean Air Act.

I

A

The Clean Air Act establishes three main regulatory programs to control air pollution from stationary sources such as power plants. Clean Air Amendments of 1970, [] One program is the New Source Performance Standards program of Section 111, at issue here.

[Discussion of other programs omitted]

The third air pollution control scheme is the New Source Performance Standards program of Section 111. § 7411. That section directs EPA to list “categories of stationary sources” that it determines “cause[ ], or contribute[ ] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” § 7411(b)(1)(A). Under Section 111(b), the Agency must then promulgate for each category “Federal standards of performance for new sources,” § 7411(b)(1)(B). A “standard of performance” is one that “reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the [EPA] Administrator determines has been adequately demonstrated.” § 7411(a)(1).

Thus, the statute directs EPA to (1) “determine[ ],” taking into account various factors, the “best system of emission reduction which ... has been adequately demonstrated,” (2) ascertain the “degree of emission limitation achievable through the application” of that system, and (3) impose an emissions limit on new stationary sources that “reflects” that amount. Ibid.; see also 80 Fed. Reg. 64538 (2015). Generally speaking, a source may achieve that emissions cap any way it chooses; the key is that its pollution be no more than the amount “achievable through the application of the best system of emission reduction ... adequately demonstrated,” or the BSER. § 7411(a)(1)[] EPA undertakes this analysis on a pollutant-by-pollutant basis, establishing different standards of performance with respect to different pollutants emitted from the same source category. []

Although the thrust of Section 111 focuses on emissions limits for new and modified sources—as its title indicates—the statute also authorizes regulation of certain pollutants from existing sources. Under Section 111(d), once EPA “has set new source standards addressing emissions of a particular pollutant under ... section 111(b),” [] it must then address emissions of that same pollutant by existing sources—but only if they are not already regulated under the NAAQS or HAP programs. § 7411(d)(1). Existing power plants, for example, emit many pollutants covered by a NAAQS or HAP standard. Section 111(d) thus “operates as a gap-filler,” empowering EPA to regulate harmful emissions not already controlled under the Agency's other authorities. [].

Although the States set the actual rules governing existing power plants, EPA itself still retains the primary regulatory role in Section 111(d). The Agency, not the States, decides the amount of pollution reduction that must ultimately be achieved. It does so by again determining, as when setting the new source rules, “the best system of emission reduction ... that has been adequately demonstrated for [existing covered] facilities.” 40 CFR § 60.22(b)(5) (2021) [] The States then submit plans containing the emissions restrictions that they intend to adopt and enforce in order not to exceed the permissible level of pollution established by EPA. []

Reflecting the ancillary nature of Section 111(d), EPA has used it only a handful of times since the enactment of the statute in 1970. [] For instance, the Agency has established emissions limits on acid mist from sulfuric acid production, [] It was thus only a slight overstatement for one of the architects of the 1990 amendments to the Clean Air Act to refer to Section 111(d) as an “obscure, never-used section of the law.” [].

B

Things changed in October 2015, when EPA promulgated two rules addressing carbon dioxide pollution from power plants—one for new plants under Section 111(b), the other for existing plants under Section 111(d). Both were premised on the Agency's earlier finding that carbon dioxide is an “air pollutant” that “may reasonably be anticipated to endanger public health or welfare” by causing climate change. []  Carbon dioxide is not subject to a NAAQS and has not been listed as a hazardous pollutant.

The first rule announced by EPA established federal carbon emissions limits for new power plants of two varieties: fossil-fuel-fired electric steam generating units (mostly coal fired) and natural-gas-fired stationary combustion turbines. [] Following the statutory process set out above, the Agency determined the BSER for the two categories of sources. For steam generating units, for instance, EPA determined that the BSER was a combination of high-efficiency production processes and carbon capture technology. [] EPA then set the emissions limit based on the amount of carbon dioxide that a plant would emit with these technologies in place. []

The second rule was triggered by the first: Because EPA was now regulating carbon dioxide from new coal and gas plants, Section 111(d) required EPA to also address carbon emissions from existing coal and gas plants. [] It did so through what it called the Clean Power Plan rule.

In that rule, EPA established “final emission guidelines for states to follow in developing plans” to regulate existing power plants within their borders. [] To arrive at the guideline limits, EPA did the same thing it does when imposing federal regulations on new sources: It identified the BSER.

The BSER that the Agency selected for existing coal-fired power plants, however, was quite different from the BSER it had chosen for new sources. The BSER for existing plants included three types of measures, which the Agency called “building blocks.” The first building block was “heat rate improvements” at coal-fired plants—essentially practices such plants could undertake to burn coal more efficiently. But such improvements, EPA stated, would “lead to only small emission reductions,” because coal-fired power plants were already operating near optimum efficiency. On the Agency's view, “much larger emission reductions [were] needed from [coal-fired plants] to address climate change.”

So the Agency included two additional building blocks in its BSER, both of which involve what it called “generation shifting from higher-emitting to lower-emitting” producers of electricity. [] Building block two was a shift in electricity production from existing coal-fired power plants to natural-gas-fired plants. Because natural gas plants produce “typically less than half as much” carbon dioxide per unit of electricity created as coal-fired plants, the Agency explained, “this generation shift [would] reduce[ ] CO₂ emissions.” Building block three worked the same way, except that the shift was from both coal- and gas-fired plants to “new low- or zero-carbon generating capacity,” mainly wind and solar. [] “Most of the CO₂ controls” in the rule came from the application of building blocks two and three. []

The Agency identified three ways in which a regulated plant operator could implement a shift in generation to cleaner sources. [] First, an operator could simply reduce the regulated plant's own production of electricity. Second, it could build a new natural gas plant, wind farm, or solar installation, or invest in someone else's existing facility and then increase generation there. [] Finally, operators could purchase emission allowances or credits as part of a cap-and-trade regime. [] Under such a scheme, sources that achieve a reduction in their emissions can sell a credit representing the value of that reduction to others, who are able to count it toward their own applicable emissions caps.

EPA explained that taking any of these steps would implement a sector-wide shift in electricity production from coal to natural gas and renewables. [] Given the integrated nature of the power grid, “adding electricity to the grid from one generator will result in the instantaneous reduction in generation from other generators,” and “reductions in generation from one generator lead to the instantaneous increase in generation” by others. [] So coal plants, whether by reducing their own production, subsidizing an increase in production by cleaner sources, or both, would cause a shift toward wind, solar, and natural gas.

Having decided that the “best system of emission reduction ... adequately demonstrated” was one that would reduce carbon pollution mostly by moving production to cleaner sources, EPA then set about determining “the degree of emission limitation achievable through the application” of that system. 42 U. S. C. § 7411(a)(1). The Agency recognized that—given the nature of generation shifting—it could choose from “a wide range of potential stringencies for the BSER.” [] Put differently, in translating the BSER into an operational emissions limit, EPA could choose whether to require anything from a little generation shifting to a great deal. The Agency settled on what it regarded as a “reasonable” amount of shift, which it based on modeling of how much more electricity both natural gas and renewable sources could supply without causing undue cost increases or reducing the overall power supply. [] Based on these changes, EPA projected that by 2030, it would be feasible to have coal provide 27% of national electricity generation, down from 38% in 2014. []

From these significant projected reductions in generation, EPA developed a series of complex equations to “determine the emission performance rates” that States would be required to implement. [] The calculations resulted in numerical emissions ceilings so strict that no existing coal plant would have been able to achieve them without engaging in one of the three means of shifting generation described above. Indeed, the emissions limit the Clean Power Plan established for existing power plants was actually stricter than the cap imposed by the simultaneously published standards for new plants. []

The point, after all, was to compel the transfer of power generating capacity from existing sources to wind and solar. The White House stated that the Clean Power Plan would “drive a[n] ... aggressive transformation in the domestic energy industry.” [] EPA's own modeling concluded that the rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors. [] The Energy Information Administration reached similar conclusions, projecting that the rule would cause retail electricity prices to remain persistently 10% higher in many States, and would reduce GDP by at least a trillion 2009 dollars by 2040. []

C

These projections were never tested, because the Clean Power Plan never went into effect. The same day that EPA promulgated the rule, dozens of parties (including 27 States) petitioned for review in the D. C. Circuit. After that court declined to enter a stay of the rule, the challengers sought the same relief from this Court. We granted a stay, preventing the rule from taking effect. West Virginia v. EPA, 577 U.S. 1126 (2016). The Court of Appeals later heard argument on the merits en banc. But before it could issue a decision, there was a change in Presidential administrations. The new administration requested that the litigation be held in abeyance so that EPA could reconsider the Clean Power Plan. The D. C. Circuit obliged, and later dismissed the petitions for review as moot.

EPA eventually repealed the rule in 2019, concluding that the Clean Power Plan had been “in excess of its statutory authority” under Section 111(d). [] Specifically, the Agency concluded that generation shifting should not have been considered as part of the BSER. The Agency interpreted Section 111 as “limit[ing] the BSER to those systems that can be put into operation at a building, structure, facility, or installation,” such as “add-on controls” and “inherently lower-emitting processes/practices/designs.” [] It then explained that the Clean Power Plan, rather than setting the standard “based on the application of equipment and practices at the level of an individual facility,” had instead based it on “a shift in the energy generation mix at the grid level,” []—not the sort of measure that has “a potential for application to an individual source.” []

The Agency determined that “the interpretative question raised” by the Clean Power Plan—“i.e., whether a ‘system of emission reduction’ can consist of generation-shifting measures”—fell under the “major question doctrine.” [] Under that doctrine, EPA explained, courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” [] The Agency concluded that the Clean Power Plan was such a decision, for a number of reasons. Its “generation-shifting scheme was projected to have billions of dollars of impact.” [] “[N]o section 111 rule of the scores issued ha[d] ever been based on generation shifting.” [] And that novel reading of the statute would empower EPA “to order the wholesale restructuring of any industrial sector” based only on its discretionary assessment of “such factors as ‘cost’ and ‘feasibility.’[]

EPA argued that under the major questions doctrine, a clear statement was necessary to conclude that Congress intended to delegate authority “of this breadth to regulate a fundamental sector of the economy.” [] It found none. “Indeed,” it concluded, given the text and structure of the statute, “Congress has directly spoken to this precise question and precluded” the use of measures such as generation shifting. []

In the same rulemaking, the Agency replaced the Clean Power Plan by promulgating a different Section 111(d) regulation, known as the Affordable Clean Energy (ACE) Rule. [] Based on its view of what measures may permissibly make up the BSER, EPA determined that the best system would be akin to building block one of the Clean Power Plan: a combination of equipment upgrades and operating practices that would improve facilities’ heat rates. [] The ACE Rule determined that the application of its BSER measures would result in only small reductions in carbon dioxide emissions. []

D

A number of States and private parties immediately filed petitions for review in the D. C. Circuit, challenging EPA's repeal of the Clean Power Plan and its enactment of the replacement ACE Rule. Other States and private entities—including petitioners here West Virginia, North Dakota, and Westmoreland Mining Holdings LLC—intervened to defend both actions. []

The Court of Appeals consolidated all 12 petitions for review into one case. It then held that EPA's “repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act”—namely, that generation shifting cannot be a “system of emission reduction” under Section 111. [] To the contrary, the court concluded, the statute could reasonably be read to encompass generation shifting. As part of that analysis, the Court of Appeals concluded that the major questions doctrine did not apply, and thus rejected the need for a clear statement of congressional intent to delegate such power to EPA. [] Having found that EPA misunderstood the scope of its authority under the Clean Air Act, the Court vacated the Agency's repeal of the Clean Power Plan and remanded to the Agency for further consideration. [] It also vacated and remanded the replacement rule, the ACE Rule, for the same reason.[]

The court's decision, handed down on January 19, 2021, was quickly followed by another change in Presidential administrations. One month later, EPA moved the Court of Appeals to partially stay the issuance of its mandate as it pertained to the Clean Power Plan. The Agency did so to ensure that the Clean Power Plan would not immediately go back into effect. [] EPA believed that such a result would not make sense while it was in the process of considering whether to promulgate a new Section 111(d) rule. No party opposed the motion, and the court accordingly stayed its vacatur of the Agency's repeal of the Clean Power Plan.

Westmoreland, The North American Coal Corporation, and the States defending the repeal of the Clean Power Plan all filed petitions for certiorari. We granted the petitions and consolidated the cases. []

II

We first consider the Government's contention that no petitioner has Article III standing to seek our review.

[Standing/mootness discussion omitted]

Here the Government “nowhere suggests that if this litigation is resolved in its favor it will not” reimpose emissions limits predicated on generation shifting; indeed, it “vigorously defends” the legality of such an approach.[] We do not dismiss a case as moot in such circumstances. [] The case thus remains justiciable, and we may turn to the merits.

III

A

In devising emissions limits for power plants, EPA first “determines” the “best system of emission reduction” that—taking into account cost, health, and other factors—it finds “has been adequately demonstrated.” 42 U. S. C. § 7411(a)(1). The Agency then quantifies “the degree of emission limitation achievable” if that best system were applied to the covered source. [] The BSER, therefore, “is the central determination that the EPA must make in formulating [its emission] guidelines” under Section 111. [] The issue here is whether restructuring the Nation's overall mix of electricity generation, to transition from 38% coal to 27% coal by 2030, can be the “best system of emission reduction” within the meaning of Section 111.

“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989). Where the statute at issue is one that confers authority upon an administrative agency, that inquiry must be “shaped, at least in some measure, by the nature of the question presented”—whether Congress in fact meant to confer the power the agency has asserted. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000). In the ordinary case, that context has no great effect on the appropriate analysis. Nonetheless, our precedent teaches that there are “extraordinary cases” that call for a different approach—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. []

Such cases have arisen from all corners of the administrative state. In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over “drugs” and “devices” included the power to regulate, and even ban, tobacco products. []  We rejected that “expansive construction of the statute,” concluding that “Congress could not have intended to delegate” such a sweeping and consequential authority “in so cryptic a fashion.” [] In Alabama Assn. of Realtors v. Department of Health and Human Servs., [] 141 S.Ct. 2485, 2487 (2021) (per curiam), we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures “necessary to prevent the ... spread of ” disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute's language a “wafer-thin reed” on which to rest such a measure, given “the sheer scope of the CDC's claimed authority,” its “unprecedented” nature, and the fact that Congress had failed to extend the moratorium after previously having done so. []

Our decision in Utility Air addressed another question regarding EPA's authority—namely, whether EPA could construe the term “air pollutant,” in a specific provision of the Clean Air Act, to cover greenhouse gases. [] Despite its textual plausibility, we noted that the Agency's interpretation would have given it permitting authority over millions of small sources, such as hotels and office buildings, that had never before been subject to such requirements. [] We declined to uphold EPA's claim of “unheralded” regulatory power over “a significant portion of the American economy.” [] In Gonzales v. Oregon, 546 U.S. 243 (2006), we confronted the Attorney General's assertion that he could rescind the license of any physician who prescribed a controlled substance for assisted suicide, even in a State where such action was legal. The Attorney General argued that this came within his statutory power to revoke licenses where he found them “inconsistent with the public interest,” 21 U. S. C. § 823(f). We considered the “idea that Congress gave [him] such broad and unusual authority through an implicit delegation ... not sustainable.” [] Similar considerations informed our recent decision invalidating the Occupational Safety and Health Administration's mandate that “84 million Americans ... either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense.” National Federation of Independent Business v. Occupational Safety and Health Administration, 142 S.Ct. 661, 665 (2022) (per curiam). We found it “telling that OSHA, in its half century of existence,” had never relied on its authority to regulate occupational hazards to impose such a remarkable measure. []

All of these regulatory assertions had a colorable textual basis. And yet, in each case, given the various circumstances, “common sense as to the manner in which Congress [would have been] likely to delegate” such power to the agency at issue, [] made it very unlikely that Congress had actually done so. Extraordinary grants of regulatory authority are rarely accomplished through “modest words,” “vague terms,” or “subtle device[s].” [] Nor does Congress typically use oblique or elliptical language to empower an agency to make a “radical or fundamental change” to a statutory scheme. [] Agencies have only those powers given to them by Congress, and “enabling legislation” is generally not an “open book to which the agency [may] add pages and change the plot line.” E. Gellhorn & P. Verkuil, Controlling ChevronBased Delegations, 20 Cardozo L. Rev. 989, 1011 (1999). We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies.” []

Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. [] To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims.

The dissent criticizes us for “announc[ing] the arrival” of this major questions doctrine, and argues that each of the decisions just cited simply followed our “ordinary method” of “normal statutory interpretation,” [] But in what the dissent calls the “key case” in this area, Brown & Williamson, the Court could not have been clearer: “In extraordinary cases ... there may be reason to hesitate” before accepting a reading of a statute that would, under more “ordinary” circumstances, be upheld. [] Or, as we put it more recently, we “typically greet” assertions of “extravagant statutory power over the national economy” with “skepticism.” Utility Air, []. The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of “clear congressional authorization,”—confirms that the approach under the major questions doctrine is distinct.

As for the major questions doctrine “label[ ],” it took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we. []

B

Under our precedents, this is a major questions case. In arguing that Section 111(d) empowers it to substantially restructure the American energy market, EPA “claim[ed] to discover in a long-extant statute an unheralded power” representing a “transformative expansion in [its] regulatory authority.” Utility Air []. It located that newfound power in the vague language of an “ancillary provision[ ]” of the Act, Whitman, [] one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency's discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. [] Brown & Williamson; Gonzales[]; Alabama Assn., []. Given these circumstances, there is every reason to “hesitate before concluding that Congress” meant to confer on EPA the authority it claims under Section 111(d). Brown & Williamson [].

Prior to 2015, EPA had always set emissions limits under Section 111 based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly. [] It had never devised a cap by looking to a “system” that would reduce pollution simply by “shifting” polluting activity “from dirtier to cleaner sources.” [] And as Justice Frankfurter has noted, “just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.” FTC v. Bunte Brothers, Inc., 312 U.S. 349, 352 (1941).

The Government quibbles with this description of the history of Section 111(d), pointing to one rule that it says relied upon a cap-and-trade mechanism to reduce emissions. [] The legality of that choice was controversial at the time and was never addressed by a court. [] Even assuming the Rule was valid, though, it still does not help the Government. In that regulation, EPA set the actual “emission cap”—i.e., the limit on emissions that sources would be required to meet—“based on the level of [mercury] emissions reductions that w[ould] be achievable by” the use of “technologies [that could be] installed and operational on a nationwide basis” in the relevant timeframe—namely, wet scrubbers. [] In other words, EPA set the cap based on the application of particular controls, and regulated sources could have complied by installing them. By contrast, and by design, there is no control a coal plant operator can deploy to attain the emissions limits established by the Clean Power Plan. [] The Mercury Rule, therefore, is no precedent for the Clean Power Plan. To the contrary, it was one more entry in an unbroken list of prior Section 111 rules that devised the enforceable emissions limit by determining the best control mechanisms available for the source.

This consistent understanding of “system[s] of emission reduction” tracked the seemingly universal view, as stated by EPA in its inaugural Section 111(d) rulemaking, that “Congress intended a technology-based approach” to regulation in that Section.[] A technology-based standard, recall, is one that focuses on improving the emissions performance of individual sources. EPA “commonly referred to” the “level of control” required as a “best demonstrated technology (BDT)” standard, [] and consistently applied it as such. []

Indeed, EPA nodded to this history in the Clean Power Plan itself, describing the sort of “systems of emission reduction” it had always before selected—“efficiency improvements, fuel-switching,” and “add-on controls”—as “more traditional air pollution control measures.” [] The Agency noted that it had “considered” such measures as potential systems of emission reduction for carbon dioxide, including a measure it ultimately adopted as a “component” of the BSER, namely, heat rate improvements. []

But, the Agency explained, in order to “control[ ] CO₂ from affected [plants] at levels ... necessary to mitigate the dangers presented by climate change,” it could not base the emissions limit on “measures that improve efficiency at the power plants.” [] “The quantity of emissions reductions resulting from the application of these measures” would have been “too small.” [] Instead, to attain the necessary “critical CO₂ reductions,” EPA adopted what it called a “broader, forward-thinking approach to the design” of Section 111 regulations. Rather than focus on improving the performance of individual sources, it would “improve the overall power system by lowering the carbon intensity of power generation.” Ibid. (emphasis added). And it would do that by forcing a shift throughout the power grid from one type of energy source to another. In the words of the then-EPA Administrator, the rule was “not about pollution control” so much as it was “an investment opportunity” for States, especially “investments in renewables and clean energy.” []

This view of EPA's authority was not only unprecedented; it also effected a “fundamental revision of the statute, changing it from [one sort of] scheme of ... regulation” into an entirely different kind. [] Under the Agency's prior view of Section 111, its role was limited to ensuring the efficient pollution performance of each individual regulated source. Under that paradigm, if a source was already operating at that level, there was nothing more for EPA to do. Under its newly “discover[ed]” authority, Utility Air[], however, EPA can demand much greater reductions in emissions based on a very different kind of policy judgment: that it would be “best” if coal made up a much smaller share of national electricity generation. And on this view of EPA's authority, it could go further, perhaps forcing coal plants to “shift” away virtually all of their generation—i.e., to cease making power altogether.

The Government attempts to downplay the magnitude of this “unprecedented power over American industry.” Industrial Union [].The amount of generation shifting ordered, it argues, must be “adequately demonstrated” and “best” in light of the statutory factors of “cost,” “nonair quality health and environmental impact,” and “energy requirements.” []. EPA therefore must limit the magnitude of generation shift it demands to a level that will not be “exorbitantly costly” or “threaten the reliability of the grid.” []

But this argument does not so much limit the breadth of the Government's claimed authority as reveal it. On EPA's view of Section 111(d), Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in deciding how Americans will get their energy. EPA decides, for instance, how much of a switch from coal to natural gas is practically feasible by 2020, 2025, and 2030 before the grid collapses, and how high energy prices can go as a result before they become unreasonably “exorbitant.”

There is little reason to think Congress assigned such decisions to the Agency. For one thing, as EPA itself admitted when requesting special funding, “Understand[ing] and project[ing] system-wide ... trends in areas such as electricity transmission, distribution, and storage” requires “technical and policy expertise not traditionally needed in EPA regulatory development.” []  “When [an] agency has no comparative expertise” in making certain policy judgments, we have said, “Congress presumably would not” task it with doing so. Kisor v. Wilkie, 139 S.Ct. 2400, 2417 (2019) [].

We also find it “highly unlikely that Congress would leave” to “agency discretion” the decision of how much coal- based generation there should be over the coming decades. [] The basic and consequential tradeoffs involved in such a choice are ones that Congress would likely have intended for itself. [] Congress certainly has not conferred a like authority upon EPA anywhere else in the Clean Air Act. The last place one would expect to find it is in the previously little-used backwater of Section 111(d).

The dissent contends that there is nothing surprising about EPA dictating the optimal mix of energy sources nationwide, since that sort of mandate will reduce air pollution from power plants, which is EPA's bread and butter. [] But that does not follow. Forbidding evictions may slow the spread of disease, but the CDC's ordering such a measure certainly “raise[s] an eyebrow.” [] We would not expect the Department of Homeland Security to make trade or foreign policy even though doing so could decrease illegal immigration. And no one would consider generation shifting a “tool” in OSHA's “toolbox,” [] even though reducing generation at coal plants would reduce workplace illness and injury from coal dust.

The dissent also cites our decision in American Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011). The question there, however, was whether Congress wanted district court judges to decide, under unwritten federal nuisance law, “whether and how to regulate carbon dioxide emissions from powerplants.” [] We answered no, given the existence of Section 111(d). But we said nothing about the ways in which Congress intended EPA to exercise its power under that provision. And it is doubtful we had in mind that it would claim the authority to require a large shift from coal to natural gas, wind, and solar. After all, EPA had never regulated in that manner, despite having issued many prior rules governing power plants under Section 111. []

Finally, we cannot ignore that the regulatory writ EPA newly uncovered conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions “had become well known, Congress considered and rejected” multiple times. []  At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon. [] Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program. [] It has also declined to enact similar measures, such as a carbon tax. See, e.g., Climate Protection Act of 2013, S. 332, 113th Cong., 1st Sess.; Save our Climate Act of 2011, H. R. 3242, 112th Cong., 1st Sess. “The importance of the issue,” along with the fact that the same basic scheme EPA adopted “has been the subject of an earnest and profound debate across the country, ... makes the oblique form of the claimed delegation all the more suspect.” [].

C

Given these circumstances, our precedent counsels skepticism toward EPA's claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach. To overcome that skepticism, the Government must—under the major questions doctrine—point to “clear congressional authorization” to regulate in that manner. Utility Air [].

All the Government can offer, however, is the Agency's authority to establish emissions caps at a level reflecting “the application of the best system of emission reduction ... adequately demonstrated.” 42 U. S. C. § 7411(a)(1). As a matter of “definitional possibilities,” [] generation shifting can be described as a “system”—“an aggregation or assemblage of objects united by some form of regular interaction,” []—capable of reducing emissions. But of course almost anything could constitute such a “system”; shorn of all context, the word is an empty vessel. Such a vague statutory grant is not close to the sort of clear authorization required by our precedents.

The Government, echoed by the other respondents, looks to other provisions of the Clean Air Act for support. It points out that the Act elsewhere uses the word “system” or “similar words” to describe cap-and-trade schemes or other sector-wide mechanisms for reducing pollution. The Acid Rain program set out in Title IV of the Act establishes a cap-and-trade scheme for reducing sulfur dioxide emissions, which the statute refers to as an “emission allocation and transfer system.” [] And Section 110 of the NAAQS program specifies that “marketable permits” and “auctions of emissions rights” qualify as “control measures, means, or techniques” that States may adopt in their state implementation plans in order “to meet the applicable requirements of ” a NAAQS. § 7410(a)(2)(A). If the word “system” or similar words like “technique” or “means” can encompass cap-and-trade, the Government maintains, why not in Section 111?

But just because a cap-and-trade “system” can be used to reduce emissions does not mean that it is the kind of “system of emission reduction” referred to in Section 111. Indeed, the Government's examples demonstrate why it is not.

First, unlike Section 111, the Acid Rain and NAAQS programs contemplate trading systems as a means of complying with an already established emissions limit, set either directly by Congress (as with Acid Rain, see 42 U. S. C. § 7651c) or by reference to the safe concentration of the pollutant in the ambient air (as with the NAAQS). In Section 111, by contrast, it is EPA's job to come up with the cap itself: the “numerical limit on emissions” that States must apply to each source. [] We doubt that Congress directed the Agency to set an emissions cap at the level “which reflects the degree of emission limitation achievable through the application of [a cap-and-trade] system,” [] for that degree is indeterminate. It is one thing for Congress to authorize regulated sources to use trading to comply with a preset cap, or a cap that must be based on some scientific, objective criterion, such as the NAAQS. It is quite another to simply authorize EPA to set the cap itself wherever the Agency sees fit.

Second, Congress added the above authorizations for the use of emissions trading programs in 1990, simultaneous with amending Section 111 to its present form. At the time, cap-and-trade was a novel and highly touted concept. The Acid Rain program was “the nation's first-ever emissions trading program.” [] And Congress went out of its way to amend the NAAQS statute to make absolutely clear that the “measures, means, [and] techniques” States could use to meet the NAAQS included cap-and-trade. § 7410(a)(2)(A). Yet “not a peep was heard from Congress about the possibility that a trading regime could be installed under § 111.” [].

Finally, the Government notes that other parts of the Clean Air Act, past and present, have “explicitly limited the permissible components of a particular ‘system’ ” of emission reduction in some regard. [] For instance, a separate section of the statute empowers EPA to require the “degree of reduction achievable through the retrofit application of the best system of continuous emission reduction.” [] The comparatively unadorned use of the phrase “best system of emission reduction” in Section 111, the Government urges, “suggest[s] a conscious congressional” choice not to limit the measures that may constitute the BSER to those applicable at or to an individual source. []

These arguments, however, concern an interpretive question that is not at issue. We have no occasion to decide whether the statutory phrase “system of emission reduction” refers exclusively to measures that improve the pollution performance of individual sources, such that all other actions are ineligible to qualify as the BSER. To be sure, it is pertinent to our analysis that EPA has acted consistent with such a limitation for the first four decades of the statute's existence. But the only interpretive question before us, and the only one we answer, is more narrow: whether the “best system of emission reduction” identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act. For the reasons given, the answer is no.

* * *

Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” New York v. United States, 505 U.S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

By the time of West Virginia v. EPA, the Court had a substantial body of case precedent that it could and did invoke. But it did not acknowledge how far it was extrapolating from those precedents. At the same time, it used this purported precedential foundation as a surrogate for explication of why the major questions doctrine should operate as it most recently has.

[ . . . ] To clarify the doctrine's evolution, I will subdivide my discussion of the predecessor cases in a manner that emphasizes the distinction between treating the major questions doctrine as a limitation on Chevron deference and treating it as a clear statement principle.

Deference and Non-Deference Cases

1. Brown & Williamson and its precursors

There is no consensus about when the major questions doctrine got its start. At times, both courts and commentators have interpreted some of the Court's decisions as exemplifying that doctrine, even though the decisions were not phrased in those terms. I will address those decisions in due course, but I will begin this analysis by examining a case that is widely viewed as having overtly launched the doctrine. That case was FDA v. Brown & Williamson Tobacco Corp.,²¹ decided in 2000. The FDA promulgated rules that would have tightly regulated the sale of tobacco and nicotine products to minors, but the Supreme Court set those rules aside in a 5-4 decision. Justice O'Connor's opinion for the majority included this key language:

Finally, our inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented. Deference under Chevron to an agency's construction of a statute that it administers is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. Cf. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration").²²

Justice O'Connor then mentioned several reasons why "[t]his is hardly an ordinary case."²³ Each of these points was actually a brief recapitulation of arguments that she had developed at length earlier in the opinion.²⁴ First, her "hesitation" to discern an implied delegation rested in part on the lack of "fit" between the nature of tobacco products and the structure of the Act.²⁵ That is, FDA regulation revolved around the agency's duty to find that a product is "safe and effective," but tobacco products were irredeemably unsafe. Moreover, the agency had assured Congress for decades that it did not believe it had power to regulate tobacco, and the legislature had enacted its own limited health-protective measures (such as cigarette labeling requirements) in light of those assurances.²⁶ In addition, tobacco had a "unique political history."²⁷ What Justice O'Connor meant by that last point was not entirely clear, but she may have been referring to the fact that a number of states' economies heavily depended on growing tobacco, and their congressional representatives would not have been likely to agree to legislation that would give a federal agency life-or-death power over such an important crop. She concluded this discussion by declaring that "we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion."²⁸

It is not surprising that Brown & Williamson gave rise to excitement about the advent of a new discretion-limiting doctrine. The language just quoted could reasonably be read to signal that "extraordinary" cases would evoke a comparatively intrusive standard of review, and that a characterization of a rule as "major" would be relevant to that "extraordinary" status. Commentators speculated about what other kinds of cases would also fall within this "extraordinary" category.²⁹ Was this new category defined by the presence of agency self-aggrandizement?³⁰ By an agency's attempt to expand the boundaries  of its jurisdiction?³¹ By an agency's attempt to circumvent the democratic process by resolving an issue without regard for the preferences of the current Congress or the general public?³² Clearly, if the Court was going to extrapolate from Brown & Williamson and create a definable "doctrine" of some sort, it was going to have to do a good deal more amplifying.

Standing alone, however, the opinion did not commit the Court to very much. In the first place, the "extraordinary" nature of the case did not, in Justice O'Connor's telling, turn exclusively on the "economic and political significance" of the proposed FDA rule. It rested on all of the arguments just mentioned, with no suggestion that any of them was predominant.

Although the dissent in Brown & Williamson had good answers to several of these merits arguments,³³ my concern at this point is not with whether or not the Court's points were cogent. Rather, it is with the structure of the Court's analysis. The opinion did not treat the factors that made the case "extraordinary" as carving out an exception to Chevron. Quite the contrary, the Court began its analysis by reciting the Chevron formula,³⁴ and used those factors to show that, under Chevron step one, Congress had "directly addressed" the question at hand. If the Court had entertained the idea that the "extraordinary" features of the case rendered other interpretive arguments unnecessary, it surely would not have devoted the first 90 percent of the opinion to discussing them. One other point to notice here is that the ultimate question from the Court's standpoint was the will of Congress; there was no suggestion of a clear statement rule that could make an answer to that question superfluous.

Finally, I should discuss two authorities on which Justice O'Connor relied in this portion of her opinion in Brown & Williamson. Although neither actually endorsed a major questions doctrine, they warrant analysis because subsequent opinions of the Court have treated them as though they had.

The first of these authorities was MCI Telecommunications Corp. v. AT&T.³⁵ In that case, the Federal Communications Commission (FCC) sought to exempt all long-distance telephone companies except the most dominant one (AT&T) from the obligation to file tariffs (rate schedules) with the Commission. The FCC relied on its statutory authority to "modify any requirement" imposed by the Communications Act. In explaining why this provision in the Act could not support the FCC's proposed rule, Justice Scalia, writing for the Court, remarked that "[i]t is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion - and even more unlikely that it would achieve that through such a subtle device as permission to `modify' rate-filing  requirements."³⁶ In Brown & Williamson, Justice O'Connor called the MCI decision "instructive," quoting that same sentence.³⁷

MCI has itself often been cited as an early example of the major questions doctrine.³⁸ It does resemble Brown & Williamson to the extent that it noted the broad significance of the FCC's proposal. Moreover, its argument that the detariffing plan was incompatible with the FCC's scheme for regulation of common carriers is analogous to Justice O'Connor's argument that the FDA's tobacco regulation did not "fit" the structure of the FDA's enabling statute.

Closer examination of MCI shows, however, that it does not really fit the major questions model. Justice Scalia primarily argued that the new policy was too radical a departure from the premises of the Act to be described as a "modification." This was true, he continued, because, according to virtually every dictionary, "`to modify' means to change moderately or in minor fashion."³⁹ Moreover, insofar as he objected to the magnitude of the proposed wholesale abrogation of the tariff-filing requirement, Justice Scalia's point was not that, as an abstract matter, the plan was so broad that the agency should be presumed to lack power to adopt it. Rather, he grounded his analysis in a carefully argued explanation that rate filing was fundamental to the scheme of common carrier regulation under the Communications Act.⁴⁰ In any event, he argued only for the result of the case at hand and did not suggest that MCI typified a category of cases to which any cross-cutting "doctrine" might apply. In short, MCI is a significant data point illustrating one of the interpretive arguments that the Court has used (in West Virginia, inter alia) in challenging an agency in a major questions case, but it was not, itself, a major questions doctrine case.

The second authority to consider is the sentence that Justice O'Connor quoted in the passage from Brown & Williamson excerpted above. That sentence came from an early article by Justice Breyer (written while he was a circuit judge).⁴¹ On its face, the sentence reads as though it squarely endorses the concept of a major questions doctrine of some sort. Not surprisingly, academic commentators have often cited it as supporting the idea.⁴² Presumably, Justice  Breyer's reputation as a liberal-leaning jurist has been regarded as bolstering the doctrine's credibility.⁴³

One must wonder, however, about how many of the judges and commentators who favor this reading of the quotation from then-Judge Breyer's article have actually examined it in the context of the underlying article. In reality, he was not contemplating or referring to anything like the major questions doctrine as it has been understood in the case law. The equation is fundamentally misconceived for two principal reasons.

The first problem is that his concept of what would make a question "major" was nothing like Justice O'Connor's. At the time Judge Breyer wrote his article, Chevron had not yet become established as a controlling paradigm in federal administrative law. He considered that case too rigid and formalistic in its approach to determining the circumstances in which courts should defer to administrative views.⁴⁴ He recognized that any such determination would rest on "a kind of legal fiction," but he thought that courts should implement this fiction by "imagin[ing] what a hypothetically `reasonable' legislator would have wanted [in light of]… practical facts surrounding the administration of a statutory scheme."⁴⁵ In this context, Breyer discussed the "importance" of the question presented as one of those "practical facts."⁴⁶ In other words, he seems to have used "major" to mean "relatively important" as compared with the "interstitial" matters that agencies would be better positioned to answer for themselves.

In short, Judge Breyer undertook to spell out a methodology for resolving everyday legal questions that arise in the course of judicial review.⁴⁷ Obviously, Congress routinely expresses judgments about the policy issues that it considers most important; the remaining issues become, by definition, "interstitial." This banal observation had nothing to do with any effort to propose a special methodology for "extraordinary" cases.

The second problem is that the "importance" of an issue was only one of the "practical facts" that Judge Breyer suggested a court should consider in deciding whether Congress would want it to defer to an agency. Others included whether the agency had any relevant special expertise; whether the statutory language was inherently imprecise; whether the answer to the legal question would clarify, illuminate, or stabilize a broad area of the law; and whether the agency can be trusted to give a properly balanced answer (as opposed to an answer distorted by the agency's tunnel vision).⁴⁸ These additional factors  further illustrate my point that Judge Breyer was talking about how to approach typical administrative appeals, not "extraordinary" ones. He was by no means trying to articulate a doctrine in which "major" questions (however defined) would be sharply distinguished from other administrative cases.

2. Utility Air

The next significant step in the development of the major questions doctrine occurred in 2014 in Utility Air Regulatory Group v. EPA,⁴⁹ another Clean Air Act case. In 2007, the Court had held in Massachusetts v. EPA that carbon dioxide must be classified as an "air pollutant" for purposes of Title II of that Act, which regulates vehicle emissions.⁵⁰ Soon afterwards, EPA issued a rule concluding that the same definition must apply to its regulation of pollution from stationary sources under Titles I and V of the Act. The agency acknowledged, however, that a straightforward application of that definition in the latter context would be unworkable because it would vastly expand the number of entities that would be regulated under this program. To avoid that consequence, EPA also adopted a "tailoring rule" that would initially apply Titles I and V only to large entities.

Applying Chevron, the Court held that the stationary source rule was unlawful. More specifically, the first step in the Chevron analysis was inconclusive, but the agency's rule failed the second step. Justice Scalia, writing for the Court, said that the term "air pollutant" did not need to have the same meaning throughout the Act.⁵¹ Given the practical implications of EPA's reading, the agency's interpretation was unreasonable under step two of Chevron insofar as it served to expand the number of entities that would be subject to Titles I and V. Owners of thousands of homes and small businesses would have to apply for permits, resulting in unmanageable administrative burdens for the agency and unprecedented burdens on the affected entities. It was thus contrary to the design and structure of the Act.⁵² As Scalia emphasized, the agency essentially agreed with that conclusion.⁵³ The Court further held, however, that the tailoring rule was flatly contrary to the Act's terms and therefore not a tenable solution to the flaws in the agency's interpretation.⁵⁴

In the course of this discussion, Justice Scalia inserted a paragraph that set forth a separate reason for rejecting the EPA's interpretation as unreasonable: "[I]t would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization."⁵⁵ He elaborated:

When an agency claims to discover in a long-extant statute an unheralded power to regulate "a significant portion of the American economy," we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast "economic and political significance." The power to require permits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide falls comfortably within the class of authorizations that we have been reluctant to read into ambiguous statutory text.⁵⁶

At a minimum, this passage marked Utility Air as a major questions doctrine case in substance, even though the Court had not yet adopted that terminology. Although, as in Brown & Williamson, the "exceptional" status of the case, by virtue of its economic and political significance, was only one facet of a much broader argument, it would be difficult to deny that this status played some role in the Court's reasoning. Utility Air also broke new ground by singling out the rule's "vast economic and political significance" as the trigger for its status as presenting a major question.

A more provocative question is whether the second sentence in this passage propounded a clear statement rule. Certainly, when read in isolation, the sentence could be read that way. That would make it the first appearance of such a rule in the Court's case law on major questions. Indeed, commentators on the major questions doctrine have often read it that way.⁵⁷

There are, however, good reasons to doubt that the Court meant it that way. The first and third sentences in the passage expressed "skepticism" and "reluctan[ce]" about accepting the EPA's interpretation - essentially because of the same practical consequences that I have already mentioned. But if the second sentence were understood to declare, as a matter of law, that a highly consequential rule could not stand without "clear congressional authorization," those surrounding sentences would be superfluous. So would the rest of the Court's lengthy discussion of the practical problems that EPA's interpretation would have brought about, as the agency itself admitted.⁵⁸ Read in context, therefore, the "expect[ation]" in the second sentence probably did not mean that the Court would treat clear congressional authorization as a sine qua non in the major questions context. It's more likely that the Court meant to treat the absence of clear authorization as simply one factor that would cast doubt on the validity of the agency's action. Those two alternatives are not equivalent. Under the latter reading, the absence of clear authorization might, at least theoretically, be outweighed by countervailing evidence or argumentation as to what the statute meant.

Whether or not Justice Scalia meant to announce a clear statement rule, he offered no real justification for such a requirement. He cited to a few cases in which the Court had ruled that Congress had not granted the sweeping authority that an agency claimed to possess, but none of those cases had purported to lay down any generic requirement to govern all "agency decisions of vast economic and political significance."⁵⁹ At best, they were analogous holdings that the Court could properly cite as precedents, but none of them had suggested that "clear congressional authorization" should be required with respect to any broad class of cases.

Nor did Justice Scalia offer any policy rationale for such a clear statement principle. In particular - to anticipate an issue that would prove important in West Virginia - he did not suggest that the doctrine of separation of powers would support such a principle. Later in the opinion, however, he did invoke the separation of powers as a reason to reject EPA's "tailoring" rule.⁶⁰ He argued that, under our system of government, Congress makes laws, and the President or agencies "faithfully execute" them, but the latter role "does not include a power to revise clear statutory terms that turn out not to work in practice."⁶¹ The absence of similar constitutionally inflected language in the Court's discussion of the stationary source rule - the context in which it arguably relied on the major questions doctrine - is telling.

In summary, Utility Air is probably most accurately read as a case in which the Court rejected an agency interpretation by applying a Chevron analysis, with major question themes serving as one component of that analysis. Certainly, the Court's opinion did contain language that, read out of context, could be taken as endorsing a clear statement approach to the major questions doctrine. Indeed, hindsight reveals that supporters of a robust version of that doctrine did interpret it that way. Even if we assume that the Court did mean to adopt such an approach, however, the casual and essentially unexplained manner in which it did so was noteworthy.

3. King v. Burwell

The next significant event in the development of the major questions doctrine occurred in King v. Burwell.⁶² This well-known decision upheld a rule issued by the Internal Revenue Service (IRS) and its parent agency, the Department of the Treasury. The rule provided tax credits for many citizens who purchased health insurance on federal exchanges pursuant to the Affordable Care Act (ACA). The most relevant section of the Act spoke only of subsidies for insurance purchased on exchanges "established by the State."⁶³ Nevertheless, a 6-3 majority of the Court found, in an opinion by Chief Justice Roberts, that the apparent meaning of this limitation was belied by other language in the Act and by the Act's purpose of strengthening, not undermining, insurance markets.⁶⁴

Enroute to that conclusion, the Court specifically declined to rely on Chevron. It cited the "extraordinary cases" language from Brown & Williamson and explained:

The tax credits are among the Act's key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep "economic and political significance" that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly [citing Utility Air]. It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. This is not a case for the IRS.⁶⁵

Notice that King departed from prior holdings regarding the major questions doctrine in a significant respect: it treated the doctrine as a threshold test rather than an integral part of the two-step Chevron inquiry. In scholarship on judicial review of agency action, such threshold tests are often known as "Chevron step zero"⁶⁶ (although this "step" could be more accurately described as a loose collection of exceptions that have no intrinsic relationship to one another). Chief Justice Roberts offered no explanation for this revised approach to the Chevron test. Indeed, as I will explain, King provides an excellent object lesson as to why the switch to a step zero approach was problematic.

In the first place, the Court's justifications for invoking the major questions doctrine at all were questionable. In Utility Air, the Court's assertion that Congress would not entrust a determination of vast economic and political significance to an agency without clear authorization was subsumed within a concrete discussion of the ruinous consequences the claimed authority would bring about (as EPA essentially admitted).⁶⁷ In King, however, Chief Justice Roberts identified no adverse consequences that would tend to make Congress reluctant to grant the power in question. More importantly, that question was wholly academic and counterfactual. As he was just about to explain, he believed that Congress had itself decided, albeit somewhat obscurely, that users of federal exchanges had to be made eligible for the tax credits. In other words, this provision of the Act did not "assign [a] question to an agency" in the first place.⁶⁸ Roberts would have had no occasion to make this completely artificial inquiry into the propriety of Chevron deference if he had not, for unexplained reasons, undertaken to treat the supposedly "extraordinary" aspect of the case as raising a threshold issue instead of incorporating that factor into his analysis of the merits of the case.

Indeed, the Court could have gotten to the same destination using the standard Chevron model without even mentioning the major questions doctrine. The Court could simply have said that the ACA, properly construed, clearly favored the government's reading. That is, in Chevron's language, "the intent of Congress [was] clear, [and] that [was] the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."⁶⁹ The district courts in King and a companion case had followed exactly that approach,⁷⁰ as has the Supreme Court in other decisions.⁷¹ Alternatively, the Court could have declared that the meaning of the Act was clear without mentioning Chevron at all; that approach would have shown less concern for doctrinal transparency, but the Court has often followed it, especially recently.⁷² Either way, the Court could have resolved the dispute in King without having to attribute any significance to what Chief Justice Roberts called the "extraordinary" nature of the question presented.

The Court's further argument that the IRS "has no expertise in crafting health insurance policy of this sort" did not strengthen its case for invoking the major questions doctrine. In this connection, the Court relied on and drew its inspiration from Gonzales v. Oregon.⁷³ In that case, the U.S. Attorney General issued an interpretive rule declaring that the Controlled Substances Act prohibited doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding an Oregon law that permitted the procedure. The Court, in an opinion by Justice Kennedy, held that the rule was unlawful because it exceeded the Attorney General's authority to implement the Act. The Attorney General's duties under the Act were very circumscribed, largely relating to registration and scheduling and descheduling of drugs.⁷⁴ Moreover, the Attorney General had no expertise in making medical judgments; instead, the Act allocated decision-making authority for medical judgments to the Secretary of Health and Human Services, whom the Attorney General had not even consulted.⁷⁵

Gonzales did not purport to apply the major questions doctrine. Justice Kennedy decided the statutory interpretation question by applying the standard two-step Chevron framework, although he ultimately decided that the rule did not survive scrutiny under that test.⁷⁶ Indeed, physician-assisted suicide is a relatively rare phenomenon, so the case could not easily be described as possessing "vast economic and political significance."⁷⁷ Nevertheless, the Court's reasoning in Gonzales seems plausible on its own terms.

Even so, the Gonzales "lack of expertise" argument did not provide a very convincing justification for applying the major questions doctrine in King. For one thing, the Internal Revenue Code authorized the Treasury Department to "prescribe such regulations as may be necessary to carry out the provisions of this section,"⁷⁸ which is a grant of authority that would seem amply broad enough to apply to the rule that Treasury and the IRS issued in King.⁷⁹ Indeed, Treasury and the IRS have long administered the tax aspects of related programs, such as health savings accounts.⁸⁰ Moreover, as two district courts had recognized at earlier stages in this dispute, the rulemaking process was a joint project of Treasury, the IRS, and HHS,⁸¹ and the tax agencies borrowed the specific language from prior HHS rules on a corresponding issue.⁸² In addition, the issue before the Court did not, in any substantial sense, raise a health insurance policy issue. The question of whether users of federal exchanges were eligible for tax credits raised a tightly focused statutory interpretation issue, calling for a simple yes-or-no answer. And, according to the Court's own analysis, Congress itself had answered that question in the affirmative. Again, it was only because Roberts had chosen, without explanation, to discuss the applicability of the major questions doctrine in isolation from the basic Chevron analysis of the merits that he got sidetracked onto the irrelevant issue of the IRS's expertise in health insurance policy.

Some commentators have argued that the Court's express finding that Chevron was inapplicable in King, and that the case should be resolved as a matter of legal interpretation, served the public interest because it meant that a later administration would not be able to alter the outcome by invoking Chevron deference.⁸³ This reasoning is based on the Supreme Court's decision in National Cable & Telecommunications Association v. Brand X Internet Services.⁸⁴ That case held that, in a situation in which Chevron does apply, an agency may change the legal interpretation of its predecessor and receive Chevron deference for its newfound position, even if the prior view had been upheld on judicial review.⁸⁵ The wisdom of this supposed strategy may seem to have been confirmed only a few years later, when the Trump administration, overtly hostile to the ACA, had no room to rescind and replace the rule that the Court upheld in King.

However, the Court would not have needed to depart from the standard Chevron model in order to achieve the stability that the theory assumes the Court was seeking. The opinion in Brand X stated that Chevron applies when an agency revises its interpretation of an ambiguous statute (in other words, at Chevron step two). It does not apply "if the prior court decision holds that its construction follows from the unambiguous terms of the statute."⁸⁶ Presumably the same limitation comes into play when the prior court decision holds, as King did, that any ambiguity in the specific phrase being construed has been dispelled by the context and purpose of the legislation considered as a whole.⁸⁷ There is little, if any, reason to think that Chief Justice Roberts, who is hardly a Chevron enthusiast,⁸⁸ would have been inclined to expand the scope of the Brand X doctrine beyond its existing limits. Thus, if the Court was indeed seeking to maintain the stability of the ACA despite a possible change of administrations later, a straightforward ruling under Chevron step one, unaided by the major questions doctrine, would have achieved the same objective.

In summary, the Court's elaboration of the major questions doctrine in King was unpersuasive as a general matter, and particularly in its elevation of the doctrine to "step zero" status. In hindsight, the case seems to have become something of an outlier among cases applying the doctrine.⁸⁹ That development may have less to do with the shakiness of its reasoning than with the fact that Chevron itself is fading in importance, at least at the Supreme Court level, so the Court is becoming less interested in exploring possible elaborations of the two-step test.⁹⁰ As the next Section will show, subsequent cases have treated the major questions doctrine as a clear statement rule, as opposed to being merely a basis for withholding deference from an agency interpretation. Nevertheless, King did break new ground insofar as it treated the major questions doctrine as an issue that a court should face before digging into the merits of an appeal. As the next Section will also demonstrate, that lesson has been carried over into the cases that have adopted a clear statement approach.

Clear Statement Rule Cases

1. U.S. Telecom

The first clear-cut judicial endorsement of a clear statement approach to the major questions doctrine occurred in 2017 in a dissenting opinion by then-Judge Brett Kavanaugh. The case was United States Telecom Association v. FCC (U.S. Telecom).⁹¹ It concerned one of the D.C. Circuit's several encounters with the issue of "net neutrality," which essentially meant treating internet service providers as common carriers. The Supreme Court had earlier held in Brand X that the Communications Act is ambiguous on this issue; thus, when the Commission promulgated a rule that endorsed net neutrality, the court upheld the choice under the judicial review principles of Chevron and Brand X itself.⁹²

Judge Kavanaugh dissented on the basis of what he called the "major rules doctrine" (although he noted that it is usually called the major questions doctrine).⁹³ In his account of the doctrine, "[f]or an agency to issue a major rule, Congress must clearly authorize the agency to do so. If a statute only ambiguously supplies authority for the major rule, the rule is unlawful."⁹⁴ To justify this line of argument, he relied primarily on prior judicial pronouncements, and he described (or reinterpreted) a series of them, including Judge Breyer's 1986 article, MCI, Brown & Williamson, Gonzales, and Utility Air.⁹⁵ For reasons discussed in Part I.A, one must regard this reliance as resting on considerable exaggeration. One sentence in Utility Air arguably did support the judge's reading, although, when read in context, that interpretation may not be what the Court meant. In any event, none of the other authorities endorsed a clear statement approach to the major questions doctrine. Either they did not deal with that doctrine at all, or they treated it as a basis for interpreting what might otherwise be an ambiguity in the enabling statute.⁹⁶

To give him due credit, Judge Kavanaugh did not rely exclusively on these precedents. He also referred briefly to a pair of theories that, he suggested, provided the underpinnings for the clear statement rule that he was propounding. Specifically, he stated that it "is grounded in two overlapping and reinforcing presumptions: (i) a separation of powers-based presumption against the delegation of major lawmaking authority from Congress to the Executive Branch, and (ii) a presumption that Congress intends to make major policy decisions itself, not leave those decisions to agencies."⁹⁷ He also cited to some supportive academic commentary.⁹⁸ I will engage with all of these points later in this Article.⁹⁹ For now, however, I will simply note that those arguments were far overshadowed by his reliance on the supposed message of the case law.¹⁰⁰

In any event, after joining the Supreme Court, Justice Kavanaugh published a brief opinion in which he signaled his continued interest in a clear statement approach to the major questions doctrine.¹⁰¹ Unsurprisingly, the Court did soon move in that direction.

2. Alabama Association of Realtors

The clear statement version of the major questions doctrine began to make its influence palpably felt at the Supreme Court level in Alabama Association of Realtors v. HHS.¹⁰² During the initial months of the coronavirus pandemic, Congress adopted a four-month moratorium on evictions of tenants from properties that had benefitted from federal financial assistance. When that moratorium expired, the Centers for Disease Control (CDC) extended it through administrative action and expanded its scope to reach nearly all residential properties. Realtor associations and rental property owners brought suit to contest the CDC rule. The district court found that the CDC rule was unlawful but stayed its judgment pending appeal. After more skirmishing in the lower courts, the dispute reached the Supreme Court as an emergency application to vacate the stay.

The Supreme Court granted the application in a brief per curiam opinion, with Justices Breyer, Sotomayor, and Kagan dissenting.¹⁰³ Although the majority opinion did not refer to the major questions doctrine by name, it did recite and follow the statement in Utility Air that "[w]e expect Congress to speak clearly when authorizing an agency to exercise powers of `vast economic and political significance.'"¹⁰⁴ The opinion concluded: "If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it."¹⁰⁵

As noted, the case came before the Court in an emergency posture, on the so-called shadow docket.¹⁰⁶ The Court announced its decision only six days after the application was filed, with no oral argument and little time for deliberation. There has been some debate about whether such an emergency order has precedential force at all.¹⁰⁷ That debate is now apparently settled, because the Court has in fact relied on Alabama Association in subsequent cases involving the major questions doctrine. However, even if the decision was technically precedential, its summary nature probably goes far to explain the obscurity of the Court's treatment of the major questions doctrine in general or the clear statement approach in particular. The Court took the Utility Air dictum at face value, ignoring the context in which it had been enunciated. The Court did not discuss whether that dictum was a legal requirement or simply an assumption about Congress's intentions. Nor did the Court undertake to defend the clear statement principle as an original proposition.

 In any case, the actual impact of the doctrine on the outcome may have been quite limited. To judge from the rhetoric in the opinion, the Justices in the majority seemed to think that the CDC's ban on evictions was almost self-evidently improper. They declared that, even at this preliminary stage, "it is difficult to imagine [the applicants] losing."¹⁰⁸ Moreover, the government's interpretation of the enabling statute "would give the CDC a breathtaking amount of authority," potentially extending to such absurdities as mandating free groceries, free computers, and high-speed Internet service at home.¹⁰⁹ Thus, the outcome was probably inevitable, with or without reliance on a major questions rationale. In addition, the Court said that the intrusion of the CDC rule on landlord-tenant relations triggered a clear statement rule based on federalism: "Our precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property."¹¹⁰ In view of that assumption, one can doubt that the major questions doctrine changed the majority's calculus in any significant way.

In sum, the Court's apparent embrace of a clear statement approach to the major questions doctrine in Alabama Association was a noteworthy development, but the circumstances of the decision cast doubt on the extent to which it definitively established the Court's adherence to that approach. In any event, the issue would soon be revisited.

3. NFIB v. OSHA

Five months later, the Court decided its next COVID-19 case: National Federation of Independent Business v. OSHA (NFIB).¹¹¹ As a means of reducing risks attributable to the virus, OSHA directed employers with one hundred or more employees to require their employees either to receive COVID-19 vaccination or to undergo weekly COVID testing and wear masks in the workplace. The applicable language for the mandate came from the Occupational Safety and Health Act, which authorized OSHA to set "occupational safety and health standards" and identified the persons who were to be protected by such standards as "employees." In an emergency appeal, however, the Supreme Court granted a stay of the mandate in a per curiam decision.¹¹² Its primary rationale was that OSHA's province was "occupational" hazards, not broad public health measures that were only indirectly related to the workplace.¹¹³

The Court did not expressly say that it was applying the major questions doctrine through a clear statement rule, but its reasoning left no doubt that it had.¹¹⁴ The Court quoted Alabama Association for the proposition that "[w]e expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance."¹¹⁵ In a sense, NFIB went further than Alabama Association had, because it deployed this principle at the outset of its discussion of the merits of the appeal, treating the principle as defining the standard of review by which the OSHA rule would be measured. As in Alabama Association, the Court did not elaborate on why it was embracing this clear statement rule. Rather, it basically took the prior case's verbal formula at face value, even though the burden shift just mentioned was arguably a substantial expansion of the major questions doctrine.

In a concurring opinion, Justice Gorsuch, joined by Justices Thomas and Alito, did provide an elaborate argument for the major questions doctrine, rooted in the nondelegation doctrine.¹¹⁶ I will analyze his argument at length below.¹¹⁷ It is worth noting, however, that the Justices in the majority who joined only the per curiam opinion (namely Roberts, Kavanaugh, and Barrett) did not endorse Justice Gorsuch's approach.¹¹⁸ Those Justices rested on statutory rather than constitutional grounds and did not significantly justify the major questions doctrine in his (or any other) terms.

The brevity of discussion regarding the major questions doctrine in the per curiam opinion may be related to the fact that this was another case on the emergency docket. To be sure, unlike the situation in Alabama Association, the Court did hold oral argument, but the procedural difference between the two decisions should not be overstated. NFIB was decided only six days after oral argument.¹¹⁹ If it was not literally within the shadow docket, it was at least within the penumbra.

The per curiam opinion as a whole seems to have suffered from the haste with which it was prepared. The most conspicuous example was the Court's misapplication of the test for granting or denying a stay. The traditional test considers, among other factors, whether issuance of the stay will substantially injure the other parties interested in the proceeding, and where the public interest lies.¹²⁰ In NFIB, however, the Court stated that "[i]t is not our role to weigh such tradeoffs."¹²¹ Several commentators have pointed out this fundamental inconsistency between the Court's argument and the settled balancing test.¹²² The Court's analysis of the probability that the plaintiffs would succeed on the merits was also quite superficial. It was hardly obvious that the OSHA standard was insufficiently workplace-related to satisfy the statute. The brief opinion did not make a close analysis of the statutory text and, as the dissenters in the case argued, neglected the close relationship between the COVID-19 rule and OSHA's core mission.¹²³

In view of the majority opinion's vulnerability on these grounds and others, the Court's resort to the clear statement rule seems especially important. The Court's burden of showing that the Act did not "clearly" authorize the rule was somewhat less than if it had felt compelled to show that the Act provided no authority for the rule on the basis of the usual review standards (with or without Chevron).

In sum, the Court's opinion in NFIB was a significant expansion of the major questions doctrine but did not add to the justifications for it. The Court left that task to be fulfilled in West Virginia, which the Court had already agreed to hear when it granted the stay in NFIB.

4. Biden v. Missouri

I should also briefly mention a recent case in which the Court could have been expected to discuss the major questions doctrine but failed to do so. In Biden v. Missouri, the Secretary of Health and Human Services issued a rule that required entities participating in the Medicare and Medicaid programs to ensure that their employees would be vaccinated against COVID-19 (with a few exemptions).¹²⁴ In a case argued and decided in tandem with NFIB, the Court granted a stay of lower court injunctions that would have prevented enforcement of this requirement.¹²⁵ The Court concluded that the vaccination mandate fell well within the agency's authority. Writing on behalf of four dissenters, Justice Thomas disagreed with that conclusion. He also invoked the major questions doctrine: "We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance."¹²⁶ In this instance, he noted, the rule "requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months."¹²⁷

The majority did not respond to this point, and one could well wonder why it did not. The per curiam opinion basically argued that the rule fell squarely within the agency's area of responsibility and was consistent with past practice.¹²⁸ That may well be so, but the Court did not explain whether it thought that those circumstances satisfied the threshold showing required by the major questions doctrine or, instead, that the doctrine did not apply in the first place.

The simplest explanation for the Court's failure to address the major questions doctrine in Biden v. Missouri may be that this was another emergency docket case, decided under the same time constraints as those involved in NFIB; the Justices in the majority may simply not have taken time to consider this specific issue. Regardless, the majority's silence on the issue suggests that the Court did not yet have a coherent theory as to when or how to apply the doctrine.

Summary

The preceding pages have traced the somewhat erratic manner in which the major questions doctrine took hold in the Supreme Court prior to West Virginia. The Court began in Brown & Williamson with a comment that the case was, for a variety of reasons, "extraordinary." This comment was squarely situated within a standard Chevron step one analysis. Some of those reasons were distinctive to the specifics of that case, but the Court also included language - based on an out-of-context quote from Justice Breyer - suggesting that those circumstances included the broad economic and political impact of the decision.

That comment soon gave rise, especially among theorists, to the idea that the Court had launched a "doctrine."¹²⁹ They were further encouraged by Utility Air, in which the Court, although still adhering to the Chevron two-step framework, included an isolated sentence that could be read as adopting a general policy disfavoring administrative rules with broad economic and political significance absent "clear congressional authorization." That sentence later morphed into a threshold test of validity in King and then into a presumption or clear statement rule in Alabama Association and NFIB. The credibility of that last step in the progression was somewhat undercut by the fact that each of those two cases was decided on the emergency docket, without much time for deliberation, let alone any discernible dialogue with dissenters on the major questions issue.

²¹ 529 U.S. 120 (2000).

²² Id. at 159.

²³ Id. at 15960.

²⁴ Id. at 13359.

²⁵ Id. at 13343, 160.

²⁶ Id. at 14359, 15960.

²⁷ Id. at 159.

²⁸ Id. at 160.

²⁹ See, e.g., Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 23147 (2006). Although Sunstein was among the first to argue that the Court appeared to be using Brown & Williamson and other contemporaneous decisions to usher in a distinctive doctrinal category, he himself questioned the value of this nascent development and argued that such cases were best resolved within the standard Chevron framework. Id. at 194, 24347.

³⁰ See Timothy K. Armstrong, Chevron Deference and Agency Self-Aggrandizement, 13 Cornell J.L. & Pub. Pol'y 203, 25062 (2004).

³¹ See Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 Geo. L.J. 833, 845 (2001).

³² See Lisa Schultz Bressman, Deference and Democracy, 75 Geo. Wash. L. Rev. 761, 77986 (2007).

³³ 529 U.S. 120, 16192 (2000) (Breyer, J., dissenting).

³⁴ Id. at 132 (majority opinion).

³⁵ 512 U.S. 218 (1994) (cited in Brown & Williamson, 529 U.S. at 160).

³⁶ Id. at 231.

³⁷ Brown & Williamson, 529 U.S. at 160.

³⁸ See, e.g., Brunstein & Revesz, supra note 12, at 22425; Chad Squitieri, Who Determines Majorness?, 44 Harv. J.L. & Pub. Pol'y 463, 473 (2021).

³⁹ 512 U.S. at 22528.

⁴⁰ Id. at 22831 (observing that the rate-filing provision had "enormous importance to the statutory scheme"); see Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 195051 (2017) (noting that the Court emphasized that the agency's interpretation might "fundamentally undermine the statutory scheme," as distinct from being "economically consequential and politically fraught").

⁴¹ Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) (cited in Brown & Williamson, 529 U.S. at 159).

⁴² See, e.g., Alison Gocke, Chevron's Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 97980 (2021).

⁴³ West Virginia v. EPA and the Major Questions Doctrine, Regul. Transparency Project (Aug. 18, 2022), https://regproject.org/video/west-virginia-v-epa-and-the-major-questions-doctrine/ [https://perma.cc/6PQX-CL7P] (recording at 16:35) (remarks of Mr. Adam Gustafson) (stating that Breyer's article "goes to show that [the major questions doctrine] is a principle on which different people of different political persuasions can agree as a matter of interpretation").

⁴⁴ Breyer, supra note 41, at 37381.

⁴⁵ Id. at 370.

⁴⁶ Id.

⁴⁷ In this connection, Breyer cited in a footnote to three court of appeals cases that he apparently thought would illustrate his argument. Id. at 370 n.38. All of them raised garden-variety legal issues that were nothing like the momentous issues the Court has examined in the cases in which it has applied the major questions doctrine.

⁴⁸ Id. at 37071.

⁴⁹ 573 U.S. 302 (2014).

⁵⁰ 549 U.S. 497 (2007).

⁵¹ Util. Air, 573 U.S. at 31520.

⁵² Id. at 32124 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013)). The Court upheld the rule insofar as it applied to stationary sources that were already subject to Titles I and V. Id. at 32933. Justices Alito and Thomas dissented from the latter holding. Id. at 34350 (Alito, J., concurring in part and dissenting in part).

⁵³ Id. at 32122.

⁵⁴ Id. at 32528.

⁵⁵ Id. at 324 (emphasis added).

⁵⁶ Id. (emphasis added).

⁵⁷ See, e.g., Heinzerling, supra note 40, at 1947 (interpreting this sentence as "an expectation of clarity created by the Court itself").

⁵⁸ See Asher Steinberg, Another Addition to the Chevron Anticanon: Judge Kavanaugh on the "Major Rules" Doctrine, Narrowest Grounds (May 7, 2017), §A.2, http://narrowestgrounds.blogspot.com/2017/05/another-addition-to-chevron-anticanon.html [https://perma.cc/C5Y7-99QC] ("[The Court's statement] that it `expect[s] Congress to speak clearly' when giving agencies vast regulatory powers… can only be read as an expectation or presumption, not a clear-statement rule. Otherwise, the Court would greet interpretations of ambiguous statute to yield vast regulatory powers with more than skepticism, and otherwise, all the extensive discussion of how EPA's interpretation of air pollutant didn't cohere with the permitting program would have been unnecessary.").

⁵⁹ The Court cited to Brown & Williamson, MCI, and Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980) (commonly known as the Benzene case). The first two of those cases have been fully discussed in the preceding section. For my analysis of Benzene on this issue, see infra Part III.C.2.

⁶⁰ Util. Air, 573 U.S. at 327.

⁶¹ Id.

⁶² 576 U.S. 473 (2015).

⁶³ Affordable Care Act §36(B), I.R.C. §36B(b)(2)(A).

⁶⁴ King, 576 U.S. at 48698. See generally Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: Understanding Congress's Plan in the Era of Unorthodox Lawmaking, 129 Harv. L. Rev. 62, 7678, 99 (2015) (discussing the Court's statutory interpretation methodology in King).

⁶⁵ King, 576 U.S. at 48586.

⁶⁶ See Sunstein, supra note 29, at 191; Merrill & Hickman, supra note 31, at 873 (a leading treatment).

⁶⁷ See supra notes 5356 and accompanying text.

⁶⁸ To clarify, Chief Justice Roberts did say that the statutory text, standing alone, was ambiguous. But he went on to explain, in the paragraph immediately following the one under discussion, that "oftentimes the `meaning - or ambiguity - of certain words or phrases may only become evident when placed in context.' So when deciding whether the language is plain, we must read the words `in their context and with a view to their place in the overall statutory scheme.'" King, 576 U.S. at 486 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 13233 (2000)).

⁶⁹ Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 84243 (1984). Of course, the question of whether the Act was unambiguous, and if so in what direction, was a hotly contested point in King. The dissenters maintained that, in reality, the terms of the Act unambiguously favored the challengers' position. King, 576 U.S. at 500 (Scalia, J., dissenting). What counts for present purposes, however, is how the majority in King perceived the matter. Roberts's opinion leaves no doubt that, in his eyes, the overall structure and purpose of the ACA eliminated any uncertainty that might have ensued from reading §36B in isolation from those factors. See Gluck, supra note 64, at 6465.

⁷⁰ King v. Sebelius, 997 F. Supp. 2d 415, 42728 (E.D. Va. 2014), aff'd sub nom. King v. Burwell, 759 F.3d 358 (4th Cir. 2014), aff'd, 135 S. Ct. 2480 (2015); Halbig v. Sebelius, 27 F. Supp. 3d 1, 23, 25 (D.D.C. 2014), rev'd, Halbig v. Burwell, 758 F.3d 390 (D.C. Cir. 2014).

⁷¹ See, e.g., FERC v. Elec. Power Supply Ass'n, 577 U.S. 260, 277 n.5 (2016); Edelman v. Lynchburg Coll., 535 U.S 106, 114 (2002) ("We find the EEOC rule not only a reasonable one, but the position we would adopt even if there were no formal rule and we were interpreting the statute from scratch. Because we so clearly agree with the EEOC, there is no occasion to defer and no point in asking what kind of deference, or how much."); Mobil Oil Expl. & Producing Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 223 (1991); Guedes v. BATF, 45 F.4th 306, 31314 (D.C. Cir. 2022). The converse situation is perhaps more common: the Court says it doesn't have to decide how Chevron might apply, because the agency decision would be unlawful regardless. See, e.g., Esquivel-Quintana v. Sessions, 581 U.S. 385, 39697 (2017); Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004).

⁷² See infra Part II.D.

⁷³ 546 U.S. 243 (2006).

⁷⁴ Id. at 25864.

⁷⁵ Id. at 26469.

⁷⁶ See id. at 25868.

⁷⁷ See Nicole Steck, Matthias Egger, Maud Maessen, Thomas Resich & Marcel Zwahlen, Euthanasia and Assisted Suicide in Selected European Countries and US States, 51 Med. Care 938 (2013) ("The percentage of physician-assisted deaths among all deaths ranged from 0.1%0.2% in the US states and Luxembourg to 1.8%2.9% in the Netherlands."). The best argument for characterizing Gonzales as a major questions doctrine case is that the opinion relied directly on the remark in Brown & Williamson that "we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion." Gonzales, 546 U.S. at 267 (quoting Brown & Williamson, 529 U.S. at 160). Justice Kennedy's citation of this remark, however, followed immediately after a reference to the familiar canon that Congress does not "hide elephants in mouseholes." Id. In all probability, Kennedy was citing Brown & Williamson in order to highlight the "cryptic" nature of the supposed delegation - not to highlight its "economic and political significance," which was actually rather modest.

⁷⁸ 26 U.S.C. §36B(h); see Kurt Eggert, Deference and Fiction: Reforming Chevron's Legal Fictions After King v. Burwell, 95 Neb. L. Rev. 702, 715 (2017).

⁷⁹ In fact, Gonzales specifically contrasted the rulemaking language in the Communications Act, which was similarly broad, with the Attorney General's limited authority under the CSA. See Gonzales, 546 U.S. at 25859.

⁸⁰ Dep't of the Treasury, IRS, Health Savings Accounts and Other Tax-Favored Health Plans (2023), https://www.irs.gov/pub/irs-pdf/p969.pdf [https://perma.cc/H27J-6TQ7].

⁸¹ King v. Sebelius, 997 F. Supp. 2d 415, 43132 (E.D. Va. 2014); Halbig v. Sebelius, 27 F. Supp. 3d 1, 17 (D.D.C. 2014); see also Eggert, supra note 78, at 715, 73435 (describing the joint rulemaking process conducted by the Treasury Department and HHS).

⁸² See Health Insurance Premium Tax Credit, 77 Fed. Reg. 30377, 30378 (May 23, 2012); Gluck, supra note 64, at 94.

⁸³ See, e.g., Eggert, supra note 78, at 745, 74950 (warning that the "hazard of any deference" is the "instability of a `final decision'… by the Supreme Court that could be later overturned by agency reinterpretation under a different presidential administration"); see also Note, Major Question Objections, 129 Harv. L. Rev. 2191, 2209 (2016) ("If the Court had deferred to the under a new IRS's interpretation as one reasonable possibility under Chevron, the IRS could conceivably have later switched its interpretation to disallow tax credits on federal exchanges, perhaps under a new administration.").

⁸⁴ 545 U.S. 967 (2005).

⁸⁵ Id. at 974.

⁸⁶ Id. at 982.

⁸⁷ See United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 48790 (2012) (plurality opinion) (so interpreting Brand X).

⁸⁸ See City of Arlington v. FCC, 569 U.S. 290, 316, 32223 (2013) (Roberts, C.J., dissenting) (advocating a narrow reading of Chevron).

⁸⁹ In West Virginia, when Chief Justice Roberts's majority opinion summarized previous cases that had applied the doctrine, his own opinion in King was conspicuously absent from the list. See West Virginia, 597 U.S. 697, 74044 (2022). Of course, one reason for that omission may have been that in that case, unlike West Virginia, the Court ruled in favor of the government.

⁹⁰ See infra Part II.D.

⁹¹ 855 F.3d 381 (D.C. Cir. 2017) (en banc).

⁹² Id. at 383 (Srinivasan, J., concurring in denial of rehearing en banc).

⁹³ Id. at 419 (Kavanaugh, J., dissenting from denial of rehearing en banc).

⁹⁴ Id.

⁹⁵ Id. at 41921. He distinguished King v. Burwell as a case about spending rather than coercive regulation, but he did not explain why that distinction was material to the purposes of the major questions doctrine. Id. at 421 n.2. In hindsight, this distinction did not survive Biden v. Nebraska. See infra Part II.B.

⁹⁶ See Steinberg, supra note 58, §C.1. Nor, despite his claims to the contrary, did the lower court holdings cited by Judge Kavanaugh articulate anything like a clear statement principle. U.S. Telecom, 855 F.3d at 421 n.3 (Kavanaugh, J., dissenting).

⁹⁷ 855 F.3d at 419 (citation omitted).

⁹⁸ Id. at 42122 (discussing works by William Eskridge and by Abbe Gluck and Lisa Bressman).

⁹⁹ See infra Parts III.A (congressional intent and Gluck & Bressman), III.C (separation of powers), III.D (Eskridge).

¹⁰⁰ See 855 F.3d at 422 n.4 (Kavanaugh, J., dissenting) (declaring, in response to academic critics of the major rules doctrine, that "as a lower court, we are constrained by precedent," in view of the Court's "repeated invocations" of the doctrine).

¹⁰¹ Paul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).

¹⁰² 594 U.S. 758 (2021).

¹⁰³ Id. at 766.

¹⁰⁴ Id. at 764.

¹⁰⁵ Id. at 766 (emphasis added).

¹⁰⁶ For criticisms of the Court's use of the emergency docket to resolve questions that ought to receive plenary consideration, see, for example, Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings To Amass Power and Undermine the Republic (2022); William Baude, Foreword: The Supreme Court's Shadow Docket, 9 N.Y.U. J.L. & Liberty 1 (2015).

¹⁰⁷ See generally Trevor N. McFadden & Vetan Kapoor, The Precedential Effect of the Supreme Court's Emergency Stays, 44 Harv. J.L. & Pub. Pol'y 827 (2021) (discussing circumstances in which precedential effect is warranted).

¹⁰⁸ Ala. Ass'n, 594 U.S. at 763.

¹⁰⁹ Id. at 76465.

¹¹⁰ Id. at 764.

¹¹¹ 595 U.S. 109 (2022).

¹¹² Id. at 11314.

¹¹³ Id. at 11720.

¹¹⁴ See Josh Blackman, NFIB v. OSHA Cites Shadow Docket Decision as Precedential, Volokh Conspiracy (Jan. 14, 2022), https://reason.com/volokh/2022/01/14/nfib-v-osha-cites-shadow-docket-decision-as-precedential/ [https://perma.cc/M772-V2P3].

¹¹⁵ NFIB, 595 U.S. at 117.

¹¹⁶ Id. at 12126 (Gorsuch, J., concurring).

¹¹⁷ See infra Part III.B.

¹¹⁸ See Simon Lazarus, Biden Misread the Supreme Court's Ruling Against the OSHA Vaccine Rule, New Republic (Jan. 19, 2022), https://newrepublic.com/article/165066/osha-vaccine-mandate-gorsuch-roberts [https://perma.cc/G8D7-P4NJ] (noting this omission).

¹¹⁹ 595 U.S. at 117.

¹²⁰ See, e.g., Nken v. Holder, 556 U.S. 418, 42526 (2009).

¹²¹ 595 U.S. at 120.

¹²² Will Baude, Balancing the Equities in the Vaccine Mandate Case, Volokh Conspiracy (Jan. 14, 2022), https://reason.com/volokh/2022/01/14/balancing-the-equities-in-the-vaccine-mandate-case/ [https://perma.cc/R945-9HNF]; Richard Re, Did the Supreme Court Overrule Equity?, Re's Judicata (Jan. 14, 2022), https://richardresjudicata.wordpress.com/2022/01/14/did-the-supreme-court-overrule-equity/ [https://perma.cc/CWM9-UQN7].

¹²³ NFIB, 595 U.S. at 12739 (Breyer, Sotomayor & Kagan, JJ., dissenting); see Shane, supra note 12 (elaborating on this critique); Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009, 102630 (2023) (same). With fuller consideration, the Court could have pursued a narrower but potentially stronger argument that the particular lines OSHA had drawn, such as the one-hundred employee cutoff, were arbitrary and capricious. See Shane, supra. By comparison, the Court's actual rationale seems unnecessarily heavy-handed.

¹²⁴ 595 U.S. 87, 89 (2022) (per curiam).

¹²⁵ Id. at 9798.

¹²⁶ Id. at 104 (Thomas, J., dissenting) (quoting Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021)).

¹²⁷ Id.

¹²⁸ Id. at 94 (majority opinion).

¹²⁹ See Alli Orr Larsen, Becoming a Doctrine, 76 Fla. L. Rev. 1, 914 (2024) (tracing the intellectual history of the so-called doctrine).

Kisor v. Wilkie, 139 S. Ct. 2400

[Excerpts, Citations omitted]

Justice KAGAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, III-B, and IV, and an opinion with respect to Parts II-A and III-A, in which Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join.

This Court has often deferred to agencies' reasonable readings of genuinely ambiguous regulations. We call that practice Auer deference, or sometimes Seminole Rock deference, after two cases in which we employed it. The only question presented here is whether we should overrule those decisions, discarding the deference they give to agencies. We answer that question no. Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to apply it depends on a range of considerations that we have noted now and again, but compile and further develop today. The deference doctrine we describe is potent in its place, but cabined in its scope. On remand, the Court of Appeals should decide whether it applies to the agency interpretation at issue.

I

…

II

Before addressing that question directly, we spend some time describing what Auer deference is, and is not, for. You might view this Part as "just background" because we have made many of its points in prior decisions. But even if so, it is background that matters. For our account of why the doctrine emerged—and also how we have limited it—goes a long way toward explaining our view that it is worth preserving.

[. . . ]

B

But all that said, Auer deference is not the answer to every question of interpreting an agency's rules. Far from it. As we explain in this section, the possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency's reading, except to the extent it has the "power to persuade." We have thus cautioned that Auer deference is just a "general rule"; it "does not apply in all cases." And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is "unwarranted." In particular, that will be so when a court concludes that an interpretation does not reflect an agency's authoritative, expertise-based, "fair[, or] considered judgment."

We take the opportunity to restate, and somewhat expand on, those principles here to clear up some mixed messages we have sent. At times, this Court has applied Auer deference without significant analysis of the underlying regulation. At other times, the Court has given Auer deference without careful attention to the nature and context of the interpretation.

And in a vacuum, our most classic formulation of the test—whether an agency's construction is "plainly erroneous or inconsistent with the regulation,"—may suggest a caricature of the doctrine, in which deference is "reflexive." So we cannot deny that Kisor has a bit of grist for his claim that Auer "bestows on agencies expansive, unreviewable" authority. But in fact Auer does no such thing: It gives agencies their due, while also allowing —indeed, obligating—courts to perform their reviewing and restraining functions. So before we turn to Kisor's specific grievances, we think it worth reinforcing some of the limits inherent in the Auer doctrine.

First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertainty does not exist, there is no plausible reason for deference. The regulation then just means what it means—and the court must give it effect, as the court would any law. Otherwise said, the core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over. But if the law gives an answer—if there is only one reasonable construction of a regulation— then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense. Deference in that circumstance would "permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation." Auer does not, and indeed could not, go that far.

And before concluding that a rule is genuinely ambiguous, a court must exhaust all the "traditional tools" of construction. For again, only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is "more [one] of policy than of law." That means a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read. Agency regulations can sometimes make the eyes glaze over. But hard interpretive conundrums, even relating to complex rules, can often be solved. To make that effort, a court must "carefully consider[]" the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on. Doing so will resolve many seeming ambiguities out of the box, without resort to Auer deference.

If genuine ambiguity remains, moreover, the agency's reading must still be "reasonable." Thomas Jefferson, In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. (Note that serious application of those tools therefore has use even when a regulation turns out to be truly ambiguous. The text, structure, history, and so forth at least establish the outer bounds of permissible interpretation.) Some courts have thought (perhaps because of Seminole Rock's "plainly erroneous" formulation) that at this stage of the analysis, agency constructions of rules receive greater deference than agency constructions of statutes. But that is not so. Under Auer, as under Chevron, the agency's reading must fall "within the bounds of reasonable interpretation." And let there be no mistake: That is a requirement an agency can fail.

Still, we are not done—for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. As explained above, we give Auer deference because we presume, for a set of reasons relating to the comparative attributes of courts and agencies, that Congress would have wanted us to. But the administrative realm is vast and varied, and we have understood that such a presumption cannot always hold. The inquiry on this dimension does not reduce to any exhaustive test. But we have laid out some especially important markers for identifying when Auer deference is and is not appropriate.

To begin with, the regulatory interpretation must be one actually made by the agency. In other words, it must be the agency's "authoritative" or "official position," rather than any more ad hoc statement not reflecting the agency's views. That constraint follows from the logic of Auer deference—because Congress has delegated rulemaking power, and all that typically goes with it, to the agency alone. Of course, the requirement of "authoritative" action must recognize a reality of bureaucratic life: Not everything the agency does comes from, or is even in the name of, the Secretary or his chief advisers. So, for example, we have deferred to "official staff memoranda" that were "published in the Federal Register," even though never approved by the agency head. But there are limits. The interpretation must at the least emanate from those actors, using those vehicles, understood to make authoritative policy in the relevant context.

If the interpretation does not do so, a court may not defer.

Next, the agency's interpretation must in some way implicate its substantive expertise. Administrative knowledge and experience largely "account [for] the presumption that Congress delegates interpretive lawmaking power to the agency." So the basis for deference ebbs when "[t]he subject matter of the [dispute is] distan[t] from the agency's ordinary" duties or "fall[s] within the scope of another agency's authority." This Court indicated as much when it analyzed a "split enforcement" scheme, in which Congress divided regulatory power between two entities. To decide "whose reasonable interpretation" of a rule controlled, we "presum[ed] Congress intended to invest interpretive power" in whichever actor was "best position[ed] to develop" expertise about the given problem. The same idea holds good as between agencies and courts. "Generally, agencies have a nuanced understanding of the regulations they administer." That point is most obvious when a rule is technical; think back to our "moiety" or "diagnosis" examples. But more prosaic-seeming questions also commonly implicate policy expertise; consider the TSA assessing the security risks of pâté or a disabilities office weighing the costs and benefits of an accommodation. Once again, though, there are limits. Some interpretive issues may fall more naturally into a judge's bailiwick. Take one requiring the elucidation of a simple common-law property term, or one concerning the award of an attorney's fee. When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.

Finally, an agency's reading of a rule must reflect "fair and considered judgment" to receive Auer deference. That means, we have stated, that a court should decline to defer to a merely "convenient litigating position" or "post hoc rationalizatio[n] advanced" to "defend past agency action against attack." And a court may not defer to a new interpretation, whether or not introduced in litigation, that creates "unfair surprise" to regulated parties. That disruption of expectations may occur when an agency substitutes one view of a rule for another. We have therefore only rarely given Auer deference to an agency construction "conflict[ing] with a prior" one. Or the upending of reliance may happen without such an explicit interpretive change. This Court, for example, recently refused to defer to an interpretation that would have imposed retroactive liability on parties for longstanding conduct that the agency had never before addressed. Here too the lack of "fair warning" outweighed the reasons to apply Auer.

* * *

The upshot of all this goes something as follows. When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision. But that phrase "when it applies" is important— because it often doesn't. As described above, this Court has cabined Auer's scope in varied and critical ways—and in exactly that measure, has maintained a strong judicial role in interpreting rules. What emerges is a deference doctrine not quite so tame as some might hope, but not nearly so menacing as they might fear.

III

That brings us to the lone question presented here—whether we should abandon the longstanding doctrine just described. In contending that we should, Kisor raises statutory, policy, and constitutional claims (in that order). But he faces an uphill climb. He must first convince us that Auer deference is wrong. And even then, he must overcome stare decisis—the special care we take to preserve our precedents. In the event, Kisor fails at the first step: None of his arguments provide good reason to doubt Auer deference. And even if that were not so, Kisor does not offer the kind of special justification needed to overrule Auer, and Seminole Rock, and all our many other decisions deferring to reasonable agency constructions of ambiguous rules.

[…]

B

If all that were not enough, stare decisis cuts strongly against Kisor's position. "Overruling precedent is never a small matter." Adherence to precedent is "a foundation stone of the rule of law." "[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." To be sure, stare decisis is "not an inexorable command." But any departure from the doctrine demands "special justification"—something more than "an argument that the precedent was wrongly decided."

And that is even more than usually so in the circumstances here. First, Kisor asks us to overrule not a single case, but a "long line of precedents"—each one reaffirming the rest and going back 75 years or more. This Court alone has applied Auer or Seminole Rock in dozens of cases, and lower courts have done so thousands of times. Deference to reasonable agency interpretations of ambiguous rules pervades the whole corpus of administrative law. Second, because that is so, abandoning Auer deference would cast doubt on many settled constructions of rules. As Kisor acknowledged at oral argument, a decision in his favor would allow relitigation of any decision based on Auer, forcing courts to "wrestle [with] whether or not Auer" had actually made a difference. It is the rare overruling that introduces so much instability into so many areas of law, all in one blow.

And third, even if we are wrong about Auer, "Congress remains free to alter what we have done." In a constitutional case, only we can correct our error. But that is not so here. Our deference decisions are "balls tossed into Congress's court, for acceptance or not as that branch elects." And so far, at least, Congress has chosen acceptance. It could amend the APA or any specific statute to require the sort of de novo review of regulatory interpretations Kisor favors. Instead, for approaching a century, it has let our deference regime work side-by-side with both the APA and the many statutes delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. And it has done so even after Members of this Court began to raise questions about the doctrine. Given that history—and Congress's continuing ability to take up Kisor's arguments—we would need a particularly "special justification" to now reverse Auer.

Kisor offers nothing of that ilk. Nearly all his arguments about abandoning precedent are variants of his merits claims. We hear again, if in different parts of his briefs, that Auer deference frustrates "the policies embodied in the APA" and violates the separation of powers. More generally, we learn that Seminole Rock was "wrong on its own terms" and "badly reasoned. Of course, it is good—and important—for our opinions to be right and well-reasoned. But that is not the test for overturning precedent. Kisor does not claim that Auer deference is "unworkable," a traditional basis for overruling a case. Nor does he point to changes in legal rules that make Auer a "doctrinal dinosaur." All he can muster is that "[t]he administrative state has evolved substantially since 1945." We do not doubt the point (although we note that Auer and other key deference decisions came along after most of that evolution took place). Still more, we agree with Kisor that administrative law doctrines must take account of the far-reaching influence of agencies and the opportunities such power carries for abuse. That is one reason we have taken care today to reinforce the limits of Auer deference, and to emphasize the critical role courts retain in interpreting rules. But it is no answer to the growth of agencies for courts to take over their expertise-based, policymaking functions. Who knows? Maybe in 1945, the FDA was not thinking about "active moieties." But still, today—just as Seminole Rock and Auer held—it should have leeway to say what that term means.

IV

With that, we can finally return to Kisor's own case. You may remember that his retroactive benefits depend on the meaning of the term "relevant" records in a VA regulation. The Board of Veterans' Appeals, through a single judge's opinion, understood records to be relevant only if they relate to the basis of the VA's initial denial of benefits. By contrast, Kisor argued that records are relevant if they go to any benefits criterion, even one that was uncontested. The Federal Circuit upheld the Board's interpretation based on Auer deference.

Applying the principles outlined in this opinion, we hold that a redo is necessary for two reasons. First, the Federal Circuit jumped the gun in declaring the regulation ambiguous. We have insisted that a court bring all its interpretive tools to bear before finding that to be so. It is not enough to casually remark, as the court did here, that "[b]oth parties insist that the plain regulatory language supports their case, and neither party's position strikes us as unreasonable." Rather, the court must make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning. The Solicitor General argued in this Court that the Board's reading is the only reasonable one. Perhaps Kisor will make the converse claim below. Before even considering deference, the court must seriously think through those positions.

And second, the Federal Circuit assumed too fast that Auer deference should apply in the event of genuine ambiguity. As we have explained, that is not always true. A court must assess whether the interpretation is of the sort that Congress would want to receive deference. The Solicitor General suggested at oral argument that the answer in this case might be no. He explained that all 100 or so members of the VA Board act individually (rather than in panels) and that their roughly 80,000 annual decisions have no "precedential value." He thus questioned whether a Board member's ruling "reflects the considered judgment of the agency as a whole." We do not know what position the Government will take on that issue below. But the questions the Solicitor General raised are exactly the kind the court must consider in deciding whether to award Auer deference to the Board's interpretation.

We accordingly vacate the judgment below and remand the case for further proceedings.

It is so ordered.

* * * *