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Brief of Am. Farm Bureau, City of Arlington, No. 11-1545 (Sup. Ct.)

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Released: December 21, 2012


TABLE OF CONTENTS

Page

Table Of Authorities ..................................................II
Interest Of Amici Curiae .......................................... 1
Summary Of Argument ............................................. 4
Background ................................................................ 6
Argument.................................................................... 7
I.
De Novo Judicial Review Of Jurisdictional
Questions Is A Critical Safeguard Against
Agency Aggrandizement.................................. 10
II. Courts Can Draw Principled Distinctions
Between Jurisdictional And Non-
Jurisdictional Questions.................................. 26
A. The Possibility Of Hard Cases Does Not
Justify Extending Chevron Deference
To Cases That Unquestionably Involve
Limits On Agency Jurisdiction ................. 28
B. Courts Can Rely On Traditional Tools
Of Statutory Interpretation In Identify-
ing Jurisdictional Issues ........................... 30
C. Well Established Background Principles
Help Identify Jurisdictional Questions .... 34
Conclusion ................................................................ 38
(I)

II

TABLE OF AUTHORITIES

Cases

Page(s)

Adams Fruit Co. v. Barrett, 494 U.S. 638
(1990) ........................................................ 21–22, 36
Am. Bar Ass’n v. FTC, 430 F.3d 457 (D.C.
Cir. 2005) .......................................20–21, 29, 34–35
Am. Bus Ass’n v. Slater, 231 F.3d 1 (D.C.
Cir. 2000) ................................................... 22–23, 29
Am. Library Ass’n v. FCC, 406 F.3d 689
(D.C. Cir. 2005)...............................16, 17, 18, 36–37
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) .... 31, 32
Atascadero State Hosp. v. Scanlon, 473 U.S.
234 (1985) ................................................................ 7
AT&T Corp. v. Iowa Utils. Bd., 525 U.S.
366 (1999) ........................................................ 16, 33
Bowen v. Georgetown Univ. Hosp., 488 U.S.
204 (1988) .......................................................... 7, 29
Bowles v. Russell, 551 U.S. 205 (2007).............. 32–33
Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984)....... 4, 36
Collins v. Nat’l Transp. Safety Bd., 351
F.3d 1246 (D.C. Cir. 2003) .............................. 35–36
Dolan v. U.S. Postal Serv., 546 U.S. 481
(2006) ..................................................................... 30
Dole v. United Steelworkers of Am., 494
U.S. 26 (1990) .................................................. 19–20

III

Cases—Cont.

Page(s)

FCC v. Midwest Video Corp., 440 U.S. 689
(1979) ......................................................... 16–17, 34
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ..................................... 9, 36–37
Gregory v. Ashcroft, 501 U.S. 452 (1991) ............ 9, 34
Kontrick v. Ryan, 540 U.S. 443 (2004) .................... 30
La. Pub. Serv. Comm’n v. FCC, 476 U.S.
355 (1986) .................................................... 7, 30, 31
Mingo Logan Coal Co. v. EPA, 850 F. Supp.
2d 133 (D.D.C. 2012) ....................................... 24–25
Miss. Power & Light Co. v. Miss. ex rel.
Moore, 487 U.S. 354 (1988) ....................... 26–27, 29
Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................ 37
Nat’l Treasury Employees Union v. Chertoff,
452 F.3d 839 (D.C. Cir. 2006) ................... 23–24, 35
P.R. Mar. Shipping Auth. v. Valley
Freight Sys., Inc., 856 F.2d 546 (3d
Cir. 1988) ..............................................25–26, 33
Rapanos v. United States,

547 U.S. 715 (2006) ...................1, 11–12, 13–14, 33
Reed Elsevier, Inc. v. Muchnick, 130 S. Ct.
1237 (2010) ................................................ 30–31, 32
Ry. Labor Execs.’ Ass’n v. Nat’l Mediation
Bd., 29 F.3d 655 (D.C. Cir. 1994) (en banc).... 27, 31
Smiley v. Citibank (S.D.), 517 U.S. 735
(1996) .................................................................... 14

IV

Cases—Cont.

Page(s)

Solid Waste Agency of N. Cook County v.
U.S. Army Corps of Engineers, 531 U.S.
159 (2001) ................................................. 12, 16, 33
United States v. Mead Corp., 533 U.S. 218
(2001) ....................................................................... 8
United States v. Sw. Cable Co., 392 U.S.
157 (1968) ........................................................ 16, 17
Will v. Mich. Dep’t of State Police, 491 U.S.
58 (1989) .................................................................. 7

Statutes and Regulations

America’s Commitment to Clean Water Act,
H.R. 5088, 111th Cong. §§ 4, 5 (2010) .................. 15
Clean Water Restoration Act, S.787, 111th
Cong. §§ 4, 5 (2009) ............................................... 15
15 U.S.C. § 6801(a)................................................... 20
15 U.S.C. § 6804(a)(1) ........................................ 20, 33
33 U.S.C. § 1251 ....................................................... 11
33 U.S.C. § 1344 ................................................. 11, 24
33 U.S.C. § 1344(c) ................................................... 24
33 U.S.C. § 1362(7)................................................... 11
42 U.S.C. § 12186 ..................................................... 21
Paperwork Reduction Act of 1980, 44 U.S.C.
§ 3501 et seq........................................................... 19
44 U.S.C. § 3507(a)(2) .............................................. 19
47 U.S.C. § 152(a)............................................... 16, 18

V

Statutes and Regulations—Cont.

Page(s)

47 U.S.C. § 153(40)................................................... 18
47 U.S.C. § 153(59)................................................... 18
47 U.S.C. § 332(c)(7)................................................... 6
47 U.S.C. § 332(c)(7)(A)........................................ 6, 28
47 U.S.C. § 332(c)(7)(B)............................................ 30
47 U.S.C. § 332(c)(7)(B)(ii) ..............6, 8, 21, 28, 30, 35
47 U.S.C. § 332(c)(7)(B)(iv) ........................................ 6
47 U.S.C. § 332(c)(7)(B)(v) ..................7, 22, 28, 29, 35
49 U.S.C. § 10521 (1982).................................... 25, 33
33 C.F.R. § 328.3(a)(3) ............................................. 11
40 C.F.R. § 230.3(s)(3).............................................. 11
42 Fed. Reg. 37,122 (July 19, 1977)......................... 11
45 Fed. Reg. 33,290 (May 19, 1980)......................... 11

Miscellaneous

Digital Broadcast Content Protection, 18
F.C.C.R. 23,550 (2003) .......................................... 18
Ernest Gellhorn & Paul Verkuil, Controlling
Chevron-Based Delegations, 20 Cardozo L.
Rev. 989 (1999) .......................................... 28, 35, 36
Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain, 89 Geo. L.J. 833 (2001) ......... 14

VI

Miscellaneous—Cont.

Page(s)

Nathan Alexander Sales & Jonathan H. Adler,
The Rest Is Silence: Chevron Deference, Agen-
cy Jurisdiction, and Statutory Silences
, 2009
U. Ill. L. Rev. 1497 (2009) ..............10, 27, 30, 32, 37
U.S. Envtl. Prot. Agency & U.S. Army Corps
of Eng’rs, Draft Guidance on Identifying Wa-
ters Protected by the Clean Water Act
(Apr.
2011) ...................................................................... 15

INTEREST OF AMICI CURIAE

1
The American Farm Bureau Federation (“Farm
Bureau”) was formed in 1919 and is the largest non-
profit general farm organization in the United
States. Representing more than 6.2 million member
facilities in all 50 States and Puerto Rico, the Farm
Bureau maintains a membership that produces eve-
ry type of agricultural crop and commodity produced
in the United States. Its mission is to protect, pro-
mote, and represent the business, economic, social,
and educational interests of American farmers. To
that end, the Farm Bureau has regularly participat-
ed as amicus curiae in this Court in cases involving
the proper scope of federal regulation and jurisdic-
tional limits on the authority of federal administra-
tive agencies. Among other things, the Farm Bureau
participated as amicus curiae in Rapanos v. United
States
, 547 U.S. 715 (2006), successfully urging the
Court to enforce the Clean Water Act’s statutory lim-
its on federal jurisdiction to regulate wetlands.
Founded in 1912, the Chamber of Commerce of
the United States of America (“Chamber”) is the
world’s largest business federation. The Chamber
represents 300,000 direct members and indirectly
represents an underlying membership of more than


1 No counsel for a party authored this brief in whole or part,
and no counsel or party made a monetary contribution to fund
the preparation or submission of this brief. No person other
than the amici curiae, their members, and their counsel made
any monetary contribution to its preparation and submission.
The parties have consented to this filing.
(1)

2
three million businesses and professional organiza-
tions of every size, in every industry sector, and from
every region of the country. The Chamber repre-
sents the interests of its members in matters before
Congress, the Executive Branch, and the courts.
The Chamber regularly files amicus briefs in cases
that raise issues of vital concern to the Nation’s
business community, including cases addressing the
proper scope of federal regulation.
The National Association of Home Builders
(“NAHB”) is a Washington, D.C.-based trade associa-
tion whose mission is to enhance the climate for
housing and the building industry. Chief among
NAHB’s goals is providing and expanding opportuni-
ties for all people to have safe, decent, and affordable
housing. Founded in 1942, NAHB is a federation of
more than 800 state and local associations. About
one-third of NAHB’s more than 130,000 members
are home builders or remodelers, and its builder
members construct about 80 percent of all new
homes built each year in the United States. NAHB
frequently participates as a party litigant and ami-
cus curiae
to safeguard the rights and interests of its
members.
The National Federation of Independent Busi-
ness Small Business Legal Center is a nonprofit,
public interest law firm established to provide legal
resources and be the voice for small businesses in
the nation’s courts through representation on issues
of public interest affecting small businesses. The
National Federation of Independent Business
(“NFIB”) is the nation’s leading small business asso-
ciation, representing members in Washington, D.C.,

3
and all 50 state capitals. Founded in 1943 as a non-
profit, nonpartisan organization, NFIB’s mission is
to promote and protect the right of its members to
own, operate and grow their businesses. NFIB rep-
resents 350,000 member businesses nationwide, and
its membership spans the spectrum of business op-
erations, ranging from sole proprietor enterprises to
firms with hundreds of employees. To fulfill its role
as the voice for small business, the NFIB Small
Business Legal Center frequently files amicus briefs
in cases that will affect small businesses.
The National Mining Association (“NMA”) is a
national trade association whose members produce
most of America’s coal, metals, and industrial and
agricultural minerals. Its membership also includes
manufacturers of mining and mineral processing
machinery and supplies, transporters, financial and
engineering firms, and other businesses involved in
the nation’s mining industries. NMA works with
Congress and federal and state regulatory officials to
provide information and analyses on public policies
of concern to its membership, and to promote policies
and practices that foster the efficient and environ-
mentally sound development and use of the country’s
mineral resources.
The Retail Litigation Center, Inc. (“RLC”) is a
public policy organization that identifies and engag-
es in legal proceedings affecting the retail industry.
The member entities whose interests RLC repre-
sents employ millions of people throughout the Unit-
ed States, provide goods and services to tens of mil-
lions more, and account for tens of billions of dollars
in annual sales. The RLC seeks to provide courts

4
with retail industry perspectives on significant legal
issues and to highlight the potential industry-wide
consequences of legal principles that may be deter-
mined in pending cases.
Amici have a substantial interest in this case be-
cause their members are subject to the jurisdiction of
federal administrative agencies in a wide range of
substantive areas. Collectively, amici represent
hundreds of thousands of U.S. businesses that have
extensive experience with agency efforts to expand
their jurisdiction beyond the authority delegated to
them by Congress. Independent judicial review has
long served as a critical bulwark for amici’s mem-
bers against the unchecked expansion of federal reg-
ulation. Granting deference to administrative agen-
cies’ interpretations of the statutes that define their
jurisdiction would, in the view of amici and their
members, remove an essential guarantee of limited
government and democratic accountability.

SUMMARY OF ARGUMENT

At the heart of this case is the question whether
federal courts must defer, under Chevron, U.S.A.,
Inc.
v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), to administrative agencies’ interpre-
tation of their own jurisdiction. Expanding the scope
of “Chevron’s domain” to agency jurisdictional de-
terminations would have vast—and troubling—
implications for the administrative state.
Petitioners, respondents supporting petitioners,
and their other amici set forth compelling doctrinal
arguments why courts should not defer to agency in-
terpretations of their own jurisdiction. This brief

5
complements those arguments by demonstrating the
wide range of circumstances in which jurisdictional
questions have arisen, and the extraordinary legal
and economic significance of the issues presented.
Historically, de novo judicial review of agency asser-
tions of jurisdiction has served as an essential check
against agency aggrandizement of power. That safe-
guard not only protects regulated entities, but also
helps preserve the proper allocation of authority
within the federal government and the relationship
between the federal government and the States. Re-
gardless whether an agency assertion of jurisdiction
is warranted in a given case, jurisdictional questions
are sufficiently important to require courts to make
their own independent determination.
The main objection jurists have voiced about a
no-deference rule is a practical concern that courts
will have difficulty distinguishing jurisdictional from
non-jurisdictional questions. But the possibility of
close cases does not justify expanding Chevron defer-
ence, especially where, as here, the issue unques-
tionably involves the scope of agency jurisdiction. As
the court of appeals correctly recognized, this case
presents the threshold question of whether Congress
delegated authority to the Federal Communications
Commission (“FCC”) to interpret the statutory provi-
sion at issue—wholly apart from the question
whether the FCC’s interpretation of that provision
was a permissible one. No deference is due on that
threshold jurisdictional question.
Moreover, even as to the broader class of cases
that involve whether the agency used its interpretive
authority over a provision permissibly, line-drawing

6
concerns do not justify extending Chevron. Such
concerns are no more substantial than in other areas
where courts identify limits on jurisdiction. Courts
can draw on traditional tools of statutory interpreta-
tion and, in close cases, familiar background princi-
ples. Line-drawing concerns can also be expected to
diminish over time, because a no-deference rule will
give Congress a beneficial incentive to legislate
clearly in defining agency jurisdiction.

BACKGROUND

This case involves a dispute between local gov-
ernments and the FCC about the agency’s assertion
of jurisdiction under Section 332(c)(7) of the Tele-
communications Act, 47 U.S.C. § 332(c)(7), to regu-
late state and local land-use decisions about the
placement of wireless communications facilities.
Captioned “[p]reservation of local zoning authority,”
Section 332(c)(7) begins with a blanket reservation of
authority: “Except as provided in this paragraph,
nothing in this chapter shall limit or affect the au-
thority of a State or local government * * * over deci-
sions regarding the placement, construction, and
modification of personal wireless service facilities.”
Id. § 332(c)(7)(A). Subparagraph (B) then lists ex-
ceptions to the rule, requiring state and local gov-
ernments to (among other things): “act on any re-
quest for authorization to place, construct, or modify
personal wireless service facilities within a reasona-
ble period of time”; and not regulate “on the basis of
the environmental effects of radio frequency emis-
sions” to the extent such facilities comply with FCC
regulations. Id. § 332(c)(7)(B)(ii), (iv).

7
Section 332(c)(7)(B)(v) divides jurisdiction over
violations of subparagraphs (i)–(iv) between the FCC
and courts. Challenges to a state or local “final ac-
tion or failure to act” that is “inconsistent with * * *
subparagraph [(B)]” may be brought in a “court of
competent jurisdiction.” Id. § 332(c)(7)(B)(v). But
persons aggrieved under the “radio frequency emis-
sion” restriction in subparagraph (iv) “may petition
the [FCC] for relief.” Id.

ARGUMENT

As petitioners, respondents supporting petition-
ers, and their other amici explain, there are compel-
ling reasons why courts should not defer to agency
decisions about their own jurisdiction. A no-
deference rule follows from the core principle that an
agency “literally has no power to act * * * unless and
until Congress confers power upon it.” La. Pub.
Serv. Comm’n
v. FCC, 476 U.S. 355, 374 (1986); ac-
cord Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
208 (1988). Also, because expanding federal jurisdic-
tion often intrudes into areas of traditional state au-
thority, recognizing agency authority based on ab-
sent or ambiguous statutory language violates the
rule that “if Congress intends to alter the ‘usual con-
stitutional balance between the States and the Fed-
eral Government,’ it must make its intention to do so
‘unmistakably clear in the language of the statute.’”
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65
(1989) (quoting Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 242 (1985)). Agencies have no com-
parative expertise or advantage in interpreting ju-
risdictional statutes. To the contrary, there is a risk
that agency self-interest will cause them systemati-

8
cally to exaggerate the scope of their authority. This
Court has never held that agency jurisdictional in-
terpretations are entitled to deference, and a faithful
reading of its cases supports the contrary rule.
There are two principal types of jurisdictional in-
quiries: first, whether Congress has delegated inter-
pretive authority over a provision to an agency; and
second, whether the agency has used its interpretive
authority over a provision permissibly. This Court
has reviewed de novo whether Congress delegated
interpretative authority to an agency in the first in-
stance. See, e.g., United States v. Mead Corp., 533
U.S. 218, 231–233 (2001). The court of appeals cor-
rectly identified that question but erred by affording
Chevron deference to the FCC’s view about whether
Congress had intended it, and not a court, to define a
“reasonable period of time”
under
Sec-
tion 332(c)(7)(B)(ii). That jurisdictional question is
analytically distinct from, and antecedent to, a range
of other jurisdictional questions involving whether
the agency’s interpretation is permissible, such as
whether the FCC’s interpretation of a “reasonable
period of time” to mean 90 or 150 days improperly
infringed state authority.
The argument against deference is strengthened
by understanding the variety of circumstances in
which jurisdictional questions have arisen, and the
tremendous legal and economic significance of the
issues presented. De novo judicial review serves as
an essential check against agency aggrandizement of
power. That constraint not only protects the inter-
ests of regulated entities, but also prevents federal
intrusion into areas of traditional state authority

9
and preserves the allocation of power within the fed-
eral government. Whether or not an agency’s asser-
tion of jurisdiction is ultimately appropriate in a giv-
en case, jurisdictional questions are sufficiently im-
portant to warrant independent determination by
courts.
The main objection jurists have expressed about
a no-deference rule is not theoretical or doctrinal,
but rather the practical concern that courts will have
difficulty distinguishing jurisdictional from non-
jurisdictional questions. But the possibility of close
cases does not justify expanding Chevron, especially
where—as here—an issue unquestionably concerns
agency jurisdiction, in the sense of a delegation of
interpretive authority. Moreover, as to jurisdictional
issues generally, line-drawing concerns are no more
substantial than in other areas where courts identify
jurisdictional questions. Courts can draw on tradi-
tional tools of statutory interpretation and, in close
cases, several familiar background principles.
Moreover, denying Chevron deference would give
Congress a salutary incentive to speak clearly about
agency jurisdiction, “assur[ing] that the legislature
has in fact faced, and intended to bring into issue,”
Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (inter-
nal quotation marks omitted), the implications of ex-
tending agency regulatory authority to an area.
Such a course would be consistent with the “common
sense” understanding that Congress is unlikely “to
delegate a policy decision of [great] economic and po-
litical magnitude to an administrative agency” with-
out saying so clearly. FDA v. Brown & Williamson
Tobacco Corp.
, 529 U.S. 120, 133 (2000). If Chevron

10
were applicable, Congress foreseeably would favor
vague jurisdictional statutes in the expectation of
using political pressure or oversight authority to af-
fect later agency decisionmaking. See Nathan Alex-
ander Sales & Jonathan H. Adler, The Rest Is Si-
lence:
Chevron Deference, Agency Jurisdiction, and
Statutory Silences
, 2009 U. Ill. L. Rev. 1497, 1545–
1546 (2009). Congress lacks similar mechanisms to
influence courts, increasing the risk and cost to Con-
gress of enacting vague statutes. Leaving jurisdic-
tional determinations to the independent judgment
of courts would thus provide Congress an incentive
to answer clearly the most basic of administrative-
law questions: whether it has delegated authority to
an agency to act in a particular area.

I. De Novo

Judicial Review Of Jurisdictional

Questions Is A Critical Safeguard Against
Agency Aggrandizement

The examples discussed below illustrate that
agencies have frequently sought to expand their ju-
risdiction across a broad range of substantive areas,
and that jurisdictional questions often have extraor-
dinary practical, economic, and legal significance
that underscores the need for de novo judicial re-
view. By applying a less-searching standard of re-
view, Chevron deference would inevitably uphold
agency assertions of jurisdiction that lack a proper
statutory basis.
1. Jurisdiction to regulate the “waters of the
United States”
The longstanding—and ongoing—efforts by the
U.S. Army Corps of Engineers (“Corps”) and the U.S.

11
Environmental Protection Agency (“EPA”) to expand
their Clean Water Act jurisdiction to cover vast
swaths of land illustrates the consequences of agency
efforts to expand the sweep of their authority. Non-
deferential review by this Court has served as a crit-
ical check on an unprecedented expansion of federal
jurisdiction.
The Clean Water Act authorizes EPA and the
Corps to regulate the discharge of pollutants into
“navigable waters,” defined to mean “the waters of
the United States, including the territorial seas.” 33
U.S.C. §§ 1251, 1344, 1362(7). In 1977 and 1980, the
Corps and EPA promulgated regulations defining
“the waters of the United States” to include naviga-
ble and tidal waters, tributaries, certain wetlands,
impoundments, and other waters “the use, degrada-
tion or destruction of which could affect interstate or
foreign commerce.” 33 C.F.R. § 328.3(a)(3); 40 C.F.R.
§ 230.3(s)(3). The agencies interpreted this defini-
tion as coextensive with the reach of the Commerce
Clause, 42 Fed. Reg. 37,122, 37,144 n.2 (July 19,
1977), but initially acknowledged that many waters
fell outside the scope of that jurisdiction.2
The intervening decades, however, saw an “im-
mense expansion of federal regulation of land use
* * * under the Clean Water Act—without any
change in the governing statute.” Rapanos v. United


2 See 45 Fed. Reg. 33,290, 33,398 (May 19, 1980) (preamble)
(“[S]mall, isolated wet areas may not be waters of the United
States * * * because * * * their destruction or degradation
would not have any effect on interstate commerce.”).

12
States, 547 U.S. 715, 722 (2006) (plurality opinion).
This Court has rejected efforts by the Corps and
EPA to stretch their jurisdiction “beyond parody,”
id. at 734 (plurality opinion), seeking to regulate ev-
er-expanding tracts of land with increasingly tenu-
ous connections to “navigable waters.”
In Solid Waste Agency of Northern Cook County
v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)
(“SWANCC”), this Court rejected the Corps’ asser-
tion of jurisdiction to regulate an abandoned sand
and gravel pit based on the presence of isolated “sea-
sonal ponds” used by migratory birds. The Court
noted that the Corps had originally taken a much
narrower view of its jurisdiction. Deference to the
agency’s claim of jurisdiction was inappropriate, the
Court explained, because the agencies’ interpreta-
tion “invoke[d] the outer limits of Congress’ power”
and “alter[ed] the federal-state framework by per-
mitting federal encroachment upon a traditional
state power,” without a “clear indication that Con-
gress intended that result.” Id. at 172–174. Accord-
ingly, the Court held that “nonnavigable, isolated,
intrastate waters” that do not “actually abu[t] on a
navigable waterway” fall outside the agencies’ juris-
diction. Id. at 167, 172.
Unchastened by that defeat, the agencies devised
a different but equally expansive theory of jurisdic-
tion. Seeking to distinguish SWANCC as involving
only “isolated” waters, the Corps asserted jurisdic-
tion to regulate waters having any connection to nav-
igable waters. In particular, the agencies asserted
jurisdiction over “tributaries”—defined expansively
to include farm and flood control ditches, drain tiles,

13
storm drain systems, pipes, rainfall runoff, and de-
sert washes—that connected otherwise non-
jurisdictional areas to navigable waters. Regulation
of the tributaries was, in turn, the basis for asserting
jurisdiction over upland areas, on the theory that
water there was connected to navigable waters
through the hydrological cycle.
Rapanos emphatically rejected the agencies’
“‘Land is Waters’ approach to federal jurisdiction.”
547 U.S. at 734 (plurality opinion). The plurality ob-
served that over the preceding 30 years, the agencies
had “interpreted their jurisdiction over ‘the waters of
the United States’ to cover 270-to-300 million acres
of swampy lands in the United States—including
half of Alaska and an area the size of California in
the lower 48 States,” as well as “virtually any parcel
of land containing a channel or conduit * * * through
which rainwater or drainage may occasionally or in-
termittently flow.” Id. at 722. That regulatory ex-
pansion had imposed tremendous costs on those who
found themselves in the path of the agencies’ expan-
sion: The plurality noted that the average permit
applicant spends “788 days and $271,596 in complet-
ing the process,” more than $1.7 billion each year is
spent nationwide obtaining wetlands permits, and
violations carry the threat of criminal liability and
civil fines. Id. at 721.
In the plurality’s view, the agencies’ assertion of
jurisdiction could not be reconciled with the plain
meaning of the statute. Even if the statutory text
were ambiguous, the agencies’ interpretation would
be impermissible: The Corps “function[ing] as a de
facto
regulator of immense stretches of intrastate

14
land” would constitute an “unprecedented intrusion
into traditional state authority” and would “stretc[h]
the outer limits of Congress’s commerce power.” Id.
at 738. Justice Kennedy likewise criticized the
Corps’ interpretation for “leav[ing] wide room for
regulation of drains, ditches, and streams remote
from any navigable-in-fact water,” id. at 781 (Ken-
nedy, J., concurring in judgment), and concluded
that waters fall within federal jurisdiction only if
they have a “significant nexus” to waters that are
navigable in fact or could reasonably be so made. Id.
at 782. Not all of the Justices agreed that the stat-
ute was clear on its face; the dissenters would have
granted Chevron deference to the Corps’ jurisdic-
tional interpretation. Id. at 788 (Stevens, J., dis-
senting).3
Despite these defeats, the agencies appear unde-
terred in their efforts to expand their regulatory ju-
risdiction “without any change in the governing
statute.” Rapanos, 547 U.S. at 722 (plurality opin-


3 Given the sharp disagreement about whether the statuto-
ry text was unambiguous, the case may reflect the reality that
uncertainty about deference to jurisdictional questions has led
some courts to guard against aggrandizement “primarily by
exercising especially vigorous statutory interpretation at Chev-
ron
’s step one when agencies press the limits of their authority,
not by creating an exception to Chevron deference.” Thomas W.
Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J.
833, 911 (2001); Smiley v. Citibank (S.D.), 517 U.S. 735, 739
(1996) (finding it “difficult indeed to contend that * * * [the
statute] [wa]s unambiguous with regard to the point at issue
here” given dissents in the court below and a split of authority
in the lower courts).

15
ion). Efforts to amend the CWA to expand its reach
beyond “navigable” waters failed in Congress. See,
e.g., America’s Commitment to Clean Water Act,
H.R. 5088, 111th Cong. §§ 4, 5 (2010); Clean Water
Restoration Act, S.787, 111th Cong. §§ 4, 5 (2009).
In April 2011, EPA and the Corps released draft
“guidance” to “clarify” how they will identify jurisdic-
tional “waters of the United States,” with the stated
intent to “increase” the “extent of waters over which
the agencies assert jurisdiction.”4 Draft Guidance 3.
The draft guidance asserts jurisdiction over, among
other things, “[t]ributaries to traditional navigable
waters” and “[w]etlands adjacent to [such] jurisdic-
tional tributaries.” Id. at 5. The draft guidance
treats wetlands as jurisdictional if they, “alone or in
combination with similarly situated lands
in the re-
gion,” have a significant nexus to traditional naviga-
ble waters. Id. at 23 (emphasis added). This “aggre-
gation” theory will have significant practical conse-
quences, allowing the agencies to assert jurisdiction
over lands that themselves lack a significant nexus
to navigable waters merely because they purportedly
have the necessary relationship when combined with
all other “similarly situated lands in the region.”
The ever-expanding assertion of federal authority
over lands in the guise of regulating “navigable wa-
ters” is perhaps the most stark illustration of the
dangers of giving decisive weight to agencies’ views


4 See U.S. Envtl. Prot. Agency & U.S. Army Corps of
Eng’rs, Draft Guidance on Identifying Waters Protected by the
Clean Water Act
(Apr. 2011), available at http://water.epa.gov/
lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf.

16
about the scope of their own jurisdiction—and in
particular, of the high federalism costs that such a
course would entail as federal agencies “imping[e]
o[n] the States’ traditional and primary power over
land and water use.” SWANCC, 531 U.S. at 174.
But fundamentally, it is only a single example of a
widespread phenomenon—that where agencies can
construe ambiguity to expand their jurisdiction, they
will do so.
2. The “ancillary jurisdiction” of the Federal
Communications Commission
This Court and lower courts have also closely
scrutinized expansions of the FCC’s “ancillary juris-
diction.” Title I of the Telecommunications Act of
1934 grants the FCC jurisdiction to regulate “all in-
terstate and foreign communication by wire or ra-
dio.” 47 U.S.C. § 152(a). This Court has recognized
that the Commission may exercise jurisdiction either
pursuant to express statutory authority, or pursuant
to its “ancillary jurisdiction.” AT&T Corp. v. Iowa
Utils. Bd.
, 525 U.S. 366, 380 (1999); United States v.
Sw. Cable Co., 392 U.S. 157, 167 (1968). To regulate
under ancillary jurisdiction, two conditions must be
met: (1) the “subject of the regulation must be cov-
ered by the Commission’s general grant of jurisdic-
tion under Title I,” Am. Library Ass’n v. FCC, 406
F.3d 689, 692 (D.C. Cir. 2005) (“ALA”); and (2) the
subject of regulation must be “reasonably ancillary
to the effective performance of the Commission’s var-
ious responsibilities.” Sw. Cable, 392 U.S. at 178.
Courts have carefully policed the boundaries of
the FCC’s ancillary jurisdiction, ensuring that this

17
“somewhat amorphous” doctrine is appropriately
“constrained.” See ALA, 406 F.3d at 692. In FCC v.
Midwest Video Corp., 440 U.S. 689, 691 (1979), this
Court rejected a Commission rule that required ca-
ble television systems carrying broadcast signals and
having 3,500 or more subscribers to develop a 20-
channel capacity, make channels available for third-
party access, and furnish equipment for access pur-
poses. Because the Act prohibits treating broadcast-
ers as common carriers, this Court held the rule ex-
ceeded the Commission’s ancillary jurisdiction be-
cause it sought to impose common-carrier obligations
on cable television systems. While recognizing that
the statutory bar on treating broadcasters as com-
mon carriers did not expressly extend to cable sys-
tems, the Court explained that it would apply the
Act’s provisions governing broadcasting, because
otherwise “the Commission’s jurisdiction under [Ti-
tle I] would be unbounded.” Id. at 706. The Court
distinguished other circumstances in which a “lack
of congressional guidance” might otherwise “le[a]d
us to defer * * * to the Commission’s judgment,” id.
at 708, concluding from the “strong [statutory] indi-
cations” (such as the prohibition on treating broad-
casters as common carriers) that the Commission’s
authority “was to be sharply delimited.” Id.
Lower courts have taken a similarly skeptical ap-
proach. ALA, for instance, addressed an FCC man-
date that equipment manufacturers include digital
broadcast copy protection features (a “broadcast
flag”) that would prevent digital television equip-
ment from redistributing a completed broadcast. 406
F.3d at 691. The Commission’s explicit jurisdictional

18
grant, however, extends only to “interstate and for-
eign communication by wire or radio” (47 U.S.C.
§ 152(a)) and “apparatus” that are “incidental to * * *
transmission,” id. § 153(40), (59). While recognizing
that its assertion of jurisdiction departed from its
historical practice (Digital Broadcast Content Protec-
tion
, 18 F.C.C.R. 23,550, 23,566 (2003)), the FCC in-
voked its ancillary jurisdiction to regulate apparatus
even when they were not receiving a broadcast
transmission.
The court of appeals held that the FCC had ex-
ceeded its ancillary jurisdiction because there was
“no statutory foundation for the broadcast flag rules,
and consequently the rules are ancillary to nothing.”
406 F.3d at 692. This statutory text, the D.C. Cir-
cuit explained, did not give the FCC “general juris-
diction” over devices “that can be used for receipt of
wire or radio communication when those devices are
not engaged in the process of radio or wire transmis-
sion.” 406 F.3d at 700. The court expressly rejected
the FCC’s “self-serving invocation of Chevron [defer-
ence]” on the ground that Congress had not delegat-
ed authority to regulate in the areas at issue. Id. at
699, 705. As a result, the court refused to construe
ancillary jurisdiction “in a manner that imposes no
meaningful limits on the scope of the FCC’s general
jurisdictional grant.” Id. at 703. The court noted
that in “seven decades of its existence, the FCC has
never before asserted such sweeping authority,” and
indeed “in the past [had] * * * informed Congress
that it lacked any such authority.” Id. at 691.

19
3. Office of Management and Budget jurisdiction
to review and reject agency rulemaking under
the Paperwork Reduction Act

Agency aggrandizement of jurisdiction does not
always involve an expansion of obligations for regu-
lated entities. In Dole v. United Steelworkers of
America
, 494 U.S. 26 (1990), for example, the White
House Office of Management and Budget (“OMB”)
asserted jurisdiction to review and remand a De-
partment of Labor hazard communication regulation
that would have required employers to inform em-
ployees about the hazards of chemicals used in the
workplace. Id. at 28–30. OMB concluded certain
aspects of the agency’s rule were unnecessary to pro-
tect employees and remanded it for changes. Id. at
30–31. This Court rejected OMB’s assertion of juris-
diction to review and remand the rule under the Pa-
perwork Reduction Act of 1980, 44 U.S.C. § 3501 et
seq.
, which authorizes review of rules that involve an
agency’s “information collection request[s].” 494
U.S. at 33 (citing 44 U.S.C. § 3507(a)(2)). In the
Court’s view, the statute only authorized OMB to re-
view rules that require collection of information by
the government
(e.g., tax forms, Medicare forms,
compliance reports, and tax records), and distin-
guished the hazard disclosure rules, which required
disclosure of information to a third party. The Court
expressly “decline[d] to defer to OMB’s interpreta-
tion” of the statute. 494 U.S. at 42 & n.10.
In dissent, Justice White and Chief Justice
Rehnquist criticized the majority for not deferring to
OMB’s interpretation under Chevron. 494 U.S. at
43–44 (White, J., dissenting). They pointedly ques-

20
tioned the majority’s conclusion that the statute was
unambiguous, noting that the majority opinion took
“10 pages, including a review of numerous statutory
provisions and legislative history” to support its view
that the statute was facially clear. Id. at 43. See
generally note 3, supra.
4. Federal Trade Commission jurisdiction to
regulate lawyers as “financial institution[s]”
Although the federalism costs of agency aggran-
dizement have been particularly acute in the envi-
ronmental context, see pp. 10-16, supra, regulatory
expansion in other areas has infringed on matters
historically regulated by States. In American Bar
Association
v. FTC, 430 F.3d 457, 465, 471 (2005)
(“ABA”), the D.C. Circuit, recognizing that “regula-
tion of the practice of law is traditionally the prov-
ince of the states,” rejected efforts by the Federal
Trade Commission (“FTC”) to regulate attorneys en-
gaged in the practice of law as “financial institu-
tion[s]” under the Gramm-Leach-Bliley Financial
Modernization Act. That Act authorizes the FTC to
promulgate regulations “with respect to financial in-
stitutions * * * subject to [its] jurisdiction under sec-
tion 6805,” 15 U.S.C. §§ 6801(a), 6804(a)(1), to safe-
guard the privacy of their customers.
The FTC maintained that attorneys engaged in
the practice of law were subject to the Act’s require-
ments, emphasizing that nothing in the Act explicit-
ly prohibited it from regulating attorneys. The D.C.
Circuit sharply rejected that position, explaining
that “if we were to presume a delegation of power
from the absence of an express withholding of such

21
power, agencies would enjoy virtually limitless he-
gemony.” 430 F.3d at 468 (internal quotation marks
omitted). The court perceived no ambiguity suffi-
cient to justify reaching Chevron step 2, finding no
indication in the statute that Congress intended to
regulate the profession of law. Id. at 469. In the al-
ternative, the court concluded that the agency’s in-
terpretation was unreasonable under Chevron step
2, in part because regulation of the practice of law
has been “the province of the states * * * throughout
the history of the country.” Id. at 471–472. The
court refused to uphold a regulation that would so
“alter the usual constitutional balance between the
States and the Federal Government” absent a clear
congressional statement that it intended do so. Id.
(internal quotation marks omitted).
5. Department of Transportation jurisdiction to
authorize money damages as a remedy for vio-
lations of the Americans with Disabilities Act

Agency attempts to expand jurisdiction can affect
not only the federal-state balance, but also the divi-
sion of authority between the branches of govern-
ment. That principle is illustrated by the case at
bar, in which the FCC has asserted jurisdiction to
define a term (“a reasonable period of time”) that
will establish a rule of decision to a type of challenge
that Congress has provided will be resolved in court.
47 U.S.C. § 332(c)(7)(B)(v). Compare Pet. App. 43a
(FCC’s interpretation would “guide courts’ determi-
nations of disputes under [Section 332(c)(7)(B)(ii)]”),
with Adams Fruit Co. v. Barrett, 494 U.S. 638, 649
(1990) (affording no deference where “Congress has
expressly established the Judiciary and not the

22
[agency] as the adjudicator of private rights of action
arising under the statute”).
American Bus Association v. Slater, 231 F.3d 1
(2000), provides another example. There, the D.C.
Circuit held that the Department of Transportation
(“DOT”) lacked authority to promulgate a rule au-
thorizing money damages against bus companies for
violations of the Americans with Disabilities Act
(“ADA”). The ADA authorizes DOT to promulgate
rules about the accessibility of large inter-city buses.
42 U.S.C. § 12186. DOT promulgated a rule that not
only set accessibility standards (e.g., boarding assis-
tance and wheelchair lifts), but required bus compa-
nies to pay monetary compensation to passengers for
violations. 231 F.3d at 3. The D.C. Circuit held that
Congress had clearly precluded DOT from authoriz-
ing a money damages scheme. The court relied in
part on a statutory provision authorizing the Attor-
ney General to bring a civil action for money damag-
es—a provision that, in the court’s view, made clear
that money damages could only be “awarded by a
court” through a civil action. Id. at 5. Judge Sentel-
le wrote separately, pointedly rejecting the agency’s
argument that “the absence of a statutory grant of
power is itself an ambiguity that calls for Chevron
deference.” Id. at 8 (Sentelle, J., concurring). He
emphasized that “a statutory silence on the granting
of a power is a denial of that power to the agency,”
and thus “a statute that is completely silent on the
question of whether it confers a power does not vest
the agency with the discretion to determine the
scope of that power.” Id. at 8–9. In Judge Sentelle’s
view, it would have “ma[de] a mockery of Chevron” to

23
suggest that deferential step 2 review is implicated
by Congress’s “failure to deny a power to an agency.”
Id. at 9.
6. Department of Homeland Security authority
to modify the jurisdiction and authority of the
Federal Labor Relations Authority

Agency attempts to expand jurisdiction also have
implications for the division of authority within the
federal administrative state. National Treasury
Employees Union
v. Chertoff, 452 F.3d 839, 866 (D.C.
Cir. 2006) (“NTEU”), for instance, involved regula-
tions promulgated by the Department of Homeland
Security (“DHS”) and Office of Personnel Manage-
ment establishing a human resources system for
DHS. Among other things, the DHS regulations
sought to channel certain labor disputes involving
DHS employees to the Federal Labor Relations Au-
thority (“FLRA”). The DHS regulations would have
required the FLRA—an independent agency with
statutory jurisdiction to adjudicate certain federal
employee claims and labor disputes—to defer to find-
ings of fact and interpretations of law made by the
Homeland Security Labor Relations Board
(“HSLRB”), and would have authorized the HSLRB
to assume jurisdiction over any dispute if it deter-
mined that the matter affected homeland security.
The D.C. Circuit declined to defer to DHS’s inter-
pretation of its statutory authority. The court re-
jected the agency’s theory that courts should “pre-
sume a delegation of power” simply because Con-
gress had not explicitly “with[e]ld * * * such power”
from the agency—a result the court explained would

24
give agencies “virtually limitless hegemony.” 452
F.3d at 866 (internal quotation marks omitted).
Further, the agency’s interpretation of the statute
“would allow [DHS] to overtake any agency to
achieve its own ends.” Id. The DHS regulations, the
court observed, purported to impose a “novel proce-
dural scheme” on the FLRA, “even though nothing in
the [Act] authorizes DHS to regulate the work of the
Authority or alter its statutory jurisdiction.” Id. at
865. The rule sought to conscript FLRA into review-
ing a group of cases DHS had selected, and to rede-
fine the FLRA’s statutory role. Id. at 865–866.
7. EPA authority to withdraw specification of
discharge sites after the Army Corps has is-
sued a Clean Water Act permit

The need for de novo judicial review of jurisdic-
tion to preserve the division of authority among
agencies is likewise apparent in the Clean Water Act
context. Section 404 of the Act vests the Corps with
authority to issue permits for discharges into navi-
gable waters. 33 U.S.C. § 1344. Congress, however,
granted EPA a limited veto authority, empowering
EPA to “prohibit * * * [,], deny or restrict” the speci-
fication of a disposal site (“including the withdrawal
of specification”) “whenever” EPA determines dis-
charge will have certain adverse environmental ef-
fects. Id. § 1344(c). In Mingo Logan Coal Co. v.
EPA, 850 F. Supp. 2d 133 (D.D.C. 2012), the court
rejected EPA’s asserted authority to withdraw a dis-
posal-site specification after the Corps had issued a
permit. EPA argued that its “withdrawal” had the
legal effect of invalidating the discharge permit,
even while conceding the statute vested authority to

25
grant and revoke permits in the Corps (which had
declined EPA’s request to revoke the permit). Id. at
142. The court refused to afford Chevron deference,
in part because of the statute’s “clear scheme of
shared responsibility.” Id. at 145–146. The court
held the statute did not clearly grant EPA the au-
thority to revoke a permit, and the agency’s reading
was in any event unreasonable, impinging on the
Corps’ permitting authority. Id. at 152–153.
8. Interstate Commerce Commission regulation
of container transportation wholly inside a
private terminal facility, based on statutory
authority to regulate shipments “on a public
highway”

The practical consequences of extending Chevron
deference are clearest where courts have “deferred”
to agency interpretations even while expressing
doubts that the interpretation is permissible. Those
cases illustrate that according deference is often out-
come-determinative and can result in courts validat-
ing assertions of jurisdiction that are dubious at
best. P.R. Maritime Shipping Authority v. Valley
Freight Systems, Inc.
, 856 F.2d 546 (3d Cir. 1988),
for instance, involved the jurisdiction of the Inter-
state Commerce Commission (“ICC”) to regulate
“transportation by motor carrier * * * to the extent
that passengers, property, or both, are transported
by motor carrier * * * on a public highway.” Id. at
551 (quoting 49 U.S.C. § 10521 (1982)). The agency
maintained that transportation that occurred wholly
within a privately controlled terminal facility was
subject to a tariff that applied only to shipments un-
der ICC jurisdiction. The shipper argued the tariff

26
did not apply because the shipments were not “on a
public highway.”
The court felt itself obliged to grant Chevron def-
erence to the agency’s interpretation and to uphold
its decision to treat such shipments as being “on a
public highway.” 856 F.2d at 552. Chevron defer-
ence, the court believed, is “fully applicable to an
agency’s interpretation of its own jurisdiction.” Id.
The court noted its reservations about the curious
result that a private facility was “a public highway,”
emphasizing that “one might reasonably prefer [the
shipper’s] reading of the ‘on a public highway’ re-
quirement” to what it delicately termed “the Com-
mission’s less-than-literal interpretation.” Id.
* * * * *
As the above examples illustrate, agencies have
attempted to expand their jurisdiction in a wide
range of contexts. Agency aggrandizement can raise
federalism concerns by intruding on areas of tradi-
tional state competence and can distort the alloca-
tion of authority within the Executive Branch or be-
tween agencies and courts. Because jurisdictional
questions often involve categorical assertions of au-
thority to act in a particular sphere, they can have
tremendous practical and financial significance that
warrants subjecting them to non-deferential review.

II. Courts Can Draw Principled Distinctions

Between Jurisdictional And Non-
Jurisdictional Questions

Justice Scalia’s concurring opinion in Mississippi
Power & Light Co. v. Mississippi ex rel. Moore, 487

27
U.S. 354, 377–81 (1988), articulates what some
courts and commentators view as “the most compel-
ling objection” to a no-deference rule for jurisdiction-
al interpretations. See Sales & Adler, 2009 U. Ill. L.
Rev. at 1555; see also Ry. Labor Execs.’ Ass’n v. Nat’l
Mediation Bd.
, 29 F.3d 655, 676–677 (D.C. Cir. 1994)
(en banc) (Williams, J., dissenting). That opinion
stated, “there is no discernible line between an agen-
cy’s exceeding its authority and an agency’s exceed-
ing authorized application of its authority.” Miss.
Power
, 487 U.S. at 381 (Scalia, J., concurring in
judgment). This line-drawing concern rests not on
an affirmative theoretical defense of Chevron defer-
ence. Rather, the claim is “prudentialist” and “hangs
by [the] empirical thread” that it is “impossible (or
prohibitively difficult) to identify a jurisdictional
question as jurisdictional.” Sales & Adler, 2009 U.
Ill. L. Rev. at 1508.
There are, however, compelling reasons to be-
lieve that courts can draw principled and consistent
distinctions between statutes that address an agen-
cy’s jurisdiction and those that do not. The possibil-
ity of “hard cases” does not justify extending Chevron
deference to circumstances—like here—that unques-
tionably involve limits an agency’s jurisdiction. In
closer cases, courts have recourse to traditional tools
of statutory construction, and a body of case law
drawing similar lines in the context of courts’ sub-
ject-matter jurisdiction. Finally, courts can rely on
several familiar norms to identify jurisdictional
questions.

28

A. The Possibility Of Hard Cases Does Not

Justify Extending Chevron

Deference To
Cases That Unquestionably Involve Lim-
its On Agency Jurisdiction

The possibility of hard cases cannot justify ex-
tending Chevron deference to issues that unques-
tionably involve agency jurisdiction.
This case provides a compelling example. As the
court of appeals correctly recognized, the threshold
question is whether Congress delegated authority to
the FCC to act at all to define the meaning of the
phrase “a reasonable period of time” in Sec-
tion 332(c)(7)(B)(ii). The statute provides clear tex-
tual indications that it addresses, and serves to lim-
it, the FCC’s authority to act. First, Sec-
tion 332(c)(7)(A) effects a blanket reservation of “au-
thority” to state and local governments to act in an
area of traditional state authority—land use. 47
U.S.C. § 332(c)(7)(A). This reservation of rights con-
stitutes an express restraint on federal jurisdiction
in the area, and thus FCC’s authority to act.5 Sec-
tion 332(c)(7)(B)(v) grants jurisdiction to courts to
adjudicate alleged violations of subparagraph (ii)
(the “reasonable period of time” requirement), leav-


5 The fact that the subject-matter (zoning decisions) is an
area well outside the core content of the Communications Act
also supports treating the question as jurisdictional. See Ern-
est Gellhorn & Paul Verkuil, Controlling Chevron-Based Dele-
gations
, 20 Cardozo L. Rev. 989, 1011 (1999) (“The first criteri-
on for determining whether Chevron deference should apply is
whether the questioned jurisdiction is within the agency’s core
regulatory assignment.”).

29
ing the FCC with jurisdiction over a different and
narrower class of cases involving the effects of radio
frequency emissions. Id. § 332(c)(7)(B)(v). Where, as
here, the threshold question is whether Congress
has delegated authority to the agency to act at all,
courts need not draw the distinction, discussed in
the Mississippi Power concurrence, between an
agency’s “authorized application of its authority” and
the agency “exceeding its authority.” 487 U.S. at 381
(Scalia, J., concurring in judgment).
The consequences of affording deference to asser-
tions of jurisdiction are significant—indeed, defer-
ence is often dispositive. See p. 25, supra. So it was
here: The court of appeals upheld the FCC’s asser-
tion of authority on the basis that the statute did not
unambiguously preclude the FCC from implement-
ing the provisions at issue, in essence applying a de-
fault rule in favor of jurisdiction. That approach is
difficult to square with the “axiomatic” rule that
agencies are “limited to the authority delegated by
Congress.” Bowen, 488 U.S. at 208. “[I]f [courts]
were to presume a delegation of power from the ab-
sence of an express withholding of such power, agen-
cies would enjoy virtually limitless hegemony.”
ABA, 430 F.3d at 468; accord Am. Bus Ass’n, 231
F.3d at 8 (Sentelle, J., concurring) (“as this Court
persistently has recognized, a statutory silence on
the granting of a power is a denial of that power to
the agency”).

30

B. Courts Can Rely On Traditional Tools Of

Statutory Interpretation In Identifying
Jurisdictional Issues

Because “an agency literally has no power to act
* * * unless and until Congress confers power upon
it” through legislation, La. Pub. Serv. Comm’n, 476
U.S. at 374, the task of identifying jurisdictional
questions is ultimately one of statutory construction.
As in the above analysis of § 332(c)(7)(B), courts are
guided in that effort by traditional tools of interpre-
tation, under which “[i]nterpretation of a word or
phrase depends upon reading the whole statutory
text, considering the purpose and context of the
statute, and consulting any precedents or authorities
that inform the analysis.” Dolan v. U.S. Postal
Serv.
, 546 U.S. 481, 486 (2006).
Courts use these tools to identify Congress’s ex-
pressed intent about whether a statute involves an
agency’s jurisdiction—e.g., the agency’s “power to
act” in a particular sphere, or power to regulate a
class of persons or entities. Cf. Kontrick v. Ryan,
540 U.S. 443, 455 (2004) (jurisdiction refers to “a
court’s adjudicatory authority”—i.e., “prescriptions
delineating the classes of cases * * * and the persons”
implicating that authority). This interpretive exer-
cise often yields a clear result. See Sales & Adler,
2009 U. Ill. L. Rev. at 1555–1556 (identifying catego-
ries of cases “it will be quite easy for courts to classi-
fy as jurisdictional”). As noted above, the court of
appeals had little difficulty distinguishing between
the two different kinds of statutory questions pre-
sented here: first, whether the FCC had authority at
all
to address what constitutes “a reasonable period

31
of time” under § 332(c)(7)(B)(ii); and second, whether
the 90- and 150-day periods exceeded the FCC’s au-
thority.
Courts routinely engage in a similar line-drawing
exercise in defining the jurisdiction of lower federal
courts. See Reed Elsevier, Inc. v. Muchnick, 130
S. Ct. 1237, 1244–1245 (2010); Arbaugh v. Y&H
Corp.
, 546 U.S. 500, 510 (2006). A series of recent
cases has helped to bring clarity and structure to the
distinction between jurisdictional and non-
jurisdictional statutes. Arbaugh, 546 U.S. at 510–
511. The principles courts apply in that context pro-
vide guidance for identifying limits on the jurisdic-
tion of federal administrative agencies. See, e.g., Ry.
Labor Execs.
, 29 F.3d at 676 (Williams, J., dissent-
ing) (in addressing whether a jurisdictional issue af-
fected the reviewability of agency action, observing
that “courts commonly classify issues as relating to
the ‘jurisdiction’ of Article III courts, and make con-
sequences turn on the classification”).
There are, to be sure, important differences be-
tween courts’ subject-matter jurisdiction and the ju-
risdiction of administrative agencies. Those differ-
ences preclude adopting here the clear-statement
rule from Arbaugh, 546 U.S. at 515–516.6 But these


6 Under Arbaugh, courts will treat an issue as jurisdictional
“[i]f the Legislature clearly states that a threshold limitation on
a statute’s scope shall count as jurisdictional,” but not “when
Congress does not rank a statutory limitation on coverage as
jurisdictional.” 546 U.S. at 515. Because this rule treats am-
biguous statutes as non-jurisdictional, importing it to the Chev-
ron
context would greatly expand the scope of issues for which

32
cases are nonetheless instructive on whether courts
can draw principled and consistent distinctions be-
tween jurisdictional and non-jurisdictional statutes.
This Court recently addressed the distinction be-
tween jurisdictional and non-jurisdictional require-
ments in Reed Elsevier. The Court considered a
number of different factors in interpreting the stat-
ute at issue. It focused “principally on [an] examina-
tion of the text of [the statute],” addressing whether
it “clearly stat[es]” that a requirement “count[s] as
jurisdictional.” 130 S. Ct. at 1244 (internal quota-
tion marks omitted). As part of that inquiry, the
Court first considered whether anything in “prior
* * * cases” showed that the requirement “imposed a
jurisdictional limit.” Id. Second, it asked whether
the statute’s “text and structure * * * demonstrate
that Congress ‘rank[ed]’ th[e] requirement as juris-
dictional.” Id. (quoting Arbaugh, 546 U.S. at 513–
516). The Court asked whether the provision was
“located in a [statutory] provision ‘separate’ from
* * * [the] jurisdiction-granting section,” but did not
suggest that factor was determinative. Id. (quoting
Arbaugh, 546 U.S. at 514–515). And the Court con-
sidered generally whether the requirement “could
* * * fairly be read to ‘speak in jurisdictional terms
or in any way refer to * * * jurisdiction.’” Id. (quot-
ing Arbaugh, 546 U.S. at 515).



agencies receive deference. Allowing agencies to define their
jurisdiction based on ambiguous statutes would be at odds with
the rule that agencies have only the authority specifically vest-
ed in them by Congress. La. Pub. Serv. Comm’n, 476 U.S. at
374; Sales & Adler, 2009 U. Ill. L. Rev. at 1534–1535.

33
Bowles v. Russell, 551 U.S. 205 (2007), gave close
attention to how a provision has historically been
treated. “Bowles stands for the proposition that con-
text, including this Court’s interpretation of similar
provisions in many years past, is relevant to whether
a statute ranks a requirement as jurisdictional.”
Reed Elsevier, 130 S. Ct. at 1247–1248. Bowles ana-
lyzed not only the statute at issue, but also how
courts had historically treated the “type of limita-
tion” as found in other statutes. Id. at 1248; Bowles,
551 U.S. at 208–210.
In many cases, application of these interpretive
tools will provide a clear indication that a question
involves agency “jurisdiction”—in some cases be-
cause Congress or courts have explicitly so specified.
For instance, ABA addressed whether attorneys en-
gaged in the practice of law were “financial institu-
tions subject to th[e] [FTC’s] jurisdiction” within the
meaning of 15 U.S.C. § 6804(a)(1). 430 F.3d at 459.
Similarly, Valley Freight involved the question
whether shipments were subject to a tariff based on
the ICC’s “‘jurisdiction over transportation by motor
carrier * * * on a public highway.’” 856 F.2d at 551
(quoting 49 U.S.C. § 10521 (1982)). This Court has
repeatedly characterized the Clean Water Act’s ref-
erence to “waters of the United States” as defining
the regulatory “jurisdiction of the Corps.” SWANCC,
531 U.S. at 168–171; accord Rapanos, 547 U.S. at
731 (plurality opinion) (the Clean Water Act “author-
izes federal jurisdiction only over ‘waters’”). And
courts have defined the scope of FCC regulatory au-
thority under its “ancillary jurisdiction.” See, e.g.,

34
AT&T Corp., 525 U.S. at 380; Midwest Video, 440
U.S. at 697.

C. Well Established Background Principles

Help Identify Jurisdictional Questions

Where the statutory text, case law, and historical
context do not provide an immediate answer, courts
can also look to several familiar principles in identi-
fying jurisdictional questions.
First, jurisdiction is often implicated where an
agency seeks to regulate in a way that affects the
balance of authority between the federal government
and the states—particularly where the agency is un-
able to cite clear statutory authorization for its ac-
tions. As reflected in this Court’s clear-statement
cases, Congress is presumed to be aware of, and not
“readily interfere” with, the “usual constitutional
balance between the States and the Federal Gov-
ernment.” Gregory, 501 U.S. at 460–461 (internal
quotation marks omitted). It follows that when leg-
islating in areas of traditional state authority, Con-
gress will take care to limit federal agency jurisdic-
tion to safeguard state interests.
Such concerns are highlighted in this case, where
the FCC sought to regulate state and local land-use
determinations despite an express reservation of
rights over such decisions. They were also present
in SWANCC, where the Corps’ claim of federal juris-
diction to regulate wetlands “alter[ed] the federal-
state framework” and “invoke[d] the outer limits of
Congress’ power” without a “clear indication that
Congress intended that result.” 531 U.S. at 172–
173. The D.C. Circuit in ABA rejected the FTC’s at-

35
tempt to regulate attorneys engaged in the practice
of law “with no other basis than the observation that
the [statute] did not provide for an exemption” for
attorneys. 430 F.3d at 468. The court emphasized
that “[t]he states have regulated the practice of law
throughout the history of the country,” and declined
to extend federal law “into [that] are[a] of State sov-
ereignty” “unless the language of the federal law
compels the intrusion.” Id. at 471.
Second, and for similar reasons, jurisdictional
questions are likely to arise where a statute divides
authority between two agencies, or between an agen-
cy and the courts. This case implicates the latter
concern, with the FCC asserting authority to define
what constitutes “a reasonable period of time” under
§ 332(c)(7)(B)(ii)—a question Congress directed
would be decided by the courts.
47 U.S.C.
§ 332(c)(7)(B)(v). Lower courts have frequently de-
clined to grant Chevron deference where agencies
share administrative authority. See Collins v. Nat’l
Transp. Safety Bd.
, 351 F.3d 1246, 1253 (D.C. Cir.
2003) (surveying cases); Gellhorn & Verkuil, 20
Cardozo L. Rev. at 1017 (“[T]he usual presumption is
that Congress does not intend to divide regulatory
responsibility among two or more agencies.”). This
can occur not only for “generic statutes that apply to
dozens of agencies,” such as the Federal Advisory
Committee Act, the Privacy Act, or the Administra-
tive Procedure Act, but also for statutes such as the
Federal Deposit Insurance Act, where a smaller
group of agencies have specialized enforcement au-
thority that potentially overlaps, creating risks of
inconsistency or uncertainty. 351 F.3d at 1252–

36
1253. Similarly, DHS’s assertion of authority to
modify the adjudicatory powers of the Federal Labor
Relations Authority raised questions of DHS’s statu-
tory jurisdiction. NTEU, 452 F.3d at 866. Declining
to extend deference where Congress has divided au-
thority between agencies or between an agency and
the courts aligns with Chevron’s teaching that an
agency is only entitled to deference over a statute
that it is charged with administering. Chevron, 467
U.S. at 843; Adams Fruit, 494 U.S. at 649.
Third, jurisdictional issues are more likely to
arise where an agency asserts a novel authority fol-
lowing long inaction or an affirmative disclaimer of
authority. An agency’s longstanding view that it
lacks authority to regulate may reflect an accurate
understanding of the enacting Congress’s intent. Or,
where Congress has amended an agency’s organic
statute over the years against the background of an
agency disclaiming authority to regulate in an area,
there may be scant reason to believe that Congress
intended the agency to have jurisdiction in that area.
Cf. Gellhorn & Verkuil, 20 Cardozo L. Rev. at 1012
(“[I]f the agency has not previously regulated the
product or service, or asserted the power to do so,
then there seems to be little basis for assuming that
Congress would have wanted courts to defer to agen-
cy interpretations.”).
This Court discussed these principles in Brown &
Williamson, holding that Congress had “precluded
the FDA from asserting jurisdiction to regulate to-
bacco products.” 529 U.S. at 126. The Court ad-
dressed at length the history of “the FDA’s disavowal
of jurisdiction”—i.e., the agency’s “consistent and re-

37
peated statements that it lacked [such] authority,”
and the fact that FDA had taken that position “since
the agency’s inception.” Id. at 144–146. And in
ALA, the D.C. Circuit emphasized that the FCC’s as-
sertion of authority to impose “broadcast flag” re-
quirements broke with 70 years of practice and con-
tradicted the Commission’s prior statements to Con-
gress that it lacked such authority. 406 F.3d at 691,
703. To be sure, not all shifts in policy implicate
questions about agency jurisdiction. See, e.g., Motor
Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983). But “[t]he fact that an agency
suddenly makes a choice it previously thought it le-
gally could not make, when coupled with other fac-
tors, is a sign that the action may be jurisdictional.”
Sales & Adler, 2009 U. Ill. L. Rev. at 1560.
* * * * *
In sum, federal courts can identify statutes af-
fecting an agency’s jurisdiction in a principled and
consistent way. The possibility of some close cases
provides no justification to extend Chevron defer-
ence, especially where—as here—the statute in-
volves the clearly-jurisdictional threshold question of
whether Congress delegated authority for the agency
to act at all.

38

CONCLUSION

The Court should vacate the judgment below and
remand for further proceedings.
Respectfully submitted.
ELLEN STEEN
JOHN P. ELWOOD
DANIELLE QUIST
Counsel of Record
AMERICAN FARM BUREAU JEREMY C. MARWELL
FEDERATION
VINSON & ELKINS LLP
600 Maryland Ave. SW
2200 Pennsylvania Ave.
Suite 1000W
NW, Suite 500 West
Washington, DC 20024
Washington, DC 20037
(202) 406-3618
(202) 639-6500
Counsel for American
jelwood@velaw.com
Farm Bureau Federation Counsel for Amici Curiae
THOMAS J. WARD
ROBIN S. CONRAD
AMY C. CHAI
RACHEL L. BRAND
NATIONAL ASSOCIATION
NATIONAL CHAMBER
OF HOME BUILDERS
LITIGATION CENTER
1201 15th Street, NW
1615 H Street, NW
Washington, DC 20005
Washington, DC 20063
(202) 266-8200
(202) 463-5337
Counsel for National
Counsel for Chamber of
Association of Home
Commerce of the United
Builders
States of America

39
KAREN R. HARNED
KATIE SWEENEY
ELIZABETH MILITO
NATIONAL MINING
NFIB SMALL BUSINESS
ASSOCIATION
LEGAL CENTER
101 Constitution Ave.,
1201 F. Street, NW
NW, Suite 500 East
Suite 200
Washington, DC 20001
Washington, DC 20004
(202) 463-2600
(202) 406-4443
Counsel for National
Counsel for NFIB Small Mining Association
Business Legal Center

DEBORAH R. WHITE
RETAIL LITIGATION
CENTER
1700 N. Moore Street
Suite 2250
Arlington, VA 22209
(703) 841-2300
Counsel for Retail
Litigation Center

NOVEMBER 2012

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