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Nat'l Governor's Ass'n, City of Arlington, No. 11-1545 (Sup. Ct.)

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Released: December 21, 2012

Nos. 11-1545, 11-1547

IN THE
Supreme Court of the United States
————
CITY OF ARLINGTON, TEXAS, et al.,
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION, et al.,
Respondents.
————
CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY
COMMITTEE OF THE NEW ORLEANS CITY COUNCIL,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION, et al.,
Respondents.
————

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit
————

AMICI CURIAE

BRIEF OF THE

NATIONAL GOVERNORS ASSOCIATION,

NATIONAL CONFERENCE OF STATE

LEGISLATURES, COUNCIL OF STATE

GOVERNMENTS, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION,

GOVERNMENT FINANCE OFFICERS

ASSOCIATION, AND NATIONAL

ASSOCIATION OF REGULATORY

UTILITY COMMISSIONERS

IN SUPPORT OF PETITIONERS

————
LISA E. SORONEN
THOMAS W. MERRILL
Executive Director
Counsel of Record
STATE AND LOCAL
435 West 116th Street
LEGAL CENTER
Room 725
444 North Capitol Street NW New York, NY 10027
Suite 515
(212) 854-9764
Washington, D.C. 20001
tmerri@law.columbia.edu
(202) 434-4845
Counsel for Amici Curiae
lsoronen@sso.org
[Additional Counsel Listed On Inside Cover]
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

JAMES BRADFORD RAMSAY
General Counsel
HOLLY RACHEL SMITH
Assistant General Counsel
NATIONAL ASSOCIATION OF
REGULATORY UTILITY
COMMISSIONERS
1101 Vermont Avenue, NW
Suite 200
Washington, DC 20005
(202) 898-2207
jramsay@naruc.org
Counsel for Amici Curiae


QUESTION PRESENTED

Whether a court should apply Chevron to review an
agency’s determination of its own jurisdiction.
(i)


TABLE OF CONTENTS
Page
QUESTION PRESENTED ..................................
i
TABLE OF CONTENTS .....................................
iii
TABLE OF AUTHORITIES ................................
iv
INTEREST OF AMICI CURIAE ........................
1
SUMMARY OF ARGUMENT .............................
3
ARGUMENT ........................................................
7
I. Constitutional Structure and Traditions
of American Government Require that
Courts Exercise Independent Judgment
in Determining the Scope of Agency
Jurisdiction ...............................................
7
II. Independent Judicial Determination is
Especially Important When Federal
Agencies Seek to Expand their Power at
the Expense of State and Local
Governments .............................................
11
III. The Theory Underlying Chevron Defer-
ence Requires that Courts Exercise
Independent Judgment in Determining
the Scope of Agency Jurisdiction ..............
17
IV. The Distinction Between Jurisdictional
and Other Legal Issues Is Familiar To
Judges, and Chevron Step One Is Not
Appropriate For Resolving Questions of
Agency Jurisdiction ..................................
21
CONCLUSION ....................................................
32
(iii)

iv
TABLE OF AUTHORITIES
CASES
Page(s)
Adams Fruit Co. v. Barrett, 494 U.S. 638
(1990) ............................................................
18
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) ... passim
Christensen v. Harris County, 529 U.S. 576
(2000) ............................................................
20
Chrysler Corp. v. Brown, 441 U.S. 281 (1979)
9
Cuomo v. The Clearing House Associates,
L.L.C., 557 U.S. 519 (2009) ..........................
16
Dole v. United Steelworkers of America, 494
U.S. 26 (1990) ............................................... 30, 31
Food and Drug Administration v. Brown &
Williamson Tobacco Corp., 529 U.S. 120
(2000) ..................................................... 6, 9, 29, 31
Geier v. American Honda Motor Co., 529
U.S. 861 (2000) ............................................. 15, 16
Gonzales v. Oregon, 546 U.S. 243 (2006) ........
14
Gregory v. Ashcroft, 501 U.S. 452 (1991) ........ 14, 15
Hines v. Davidowitz, 312 U.S. 52 (1941) .........
15
Interstate Commerce Commission v. Cin-
cinnati, New Orleans, & Texas Pacific
Railway Co., 167 U.S. 479 (1897) ................
9
James B. Beam Distilling Co. v. Georgia, 501
U.S. 529 (1991) .............................................
9
Louisiana Public Service Commission v.
FCC, 476 U.S. 355 (1986) .......................... 7, 11, 13



v
TABLE OF AUTHORITIES—Continued

Page(s)
Medtronic Inc. v. Lohr, 518 U.S. 470 (1996) ... 14, 16
Mississippi Power & Light Co. v. Mississippi
ex rel. Moore, 487 U.S. 354 (1988) ...............
22
National Cable & Telecommunications Asso-
ciation v. Brand X Internet Services, 545
U.S. 967 (2005) .............................................
18
National Federation of Independent Business
v. Sibelius, 132 S. Ct. 2566 (2012) ...............
23
Smiley v. Citicorp (S.D.), N.A., 517 U.S. 735
(1996) ............................................................ 16, 18
Solid Waste Agency of Northern Cook County
v. United States Army Corps of Engineers,
531 U.S. 159 (2000) ......................................
14
United States v. Mead Corp., 533 U.S. 218
(2001) ............................................................ 20, 21
Watters v. Wachovia Bank, N.A., 550 U.S. 1
(2007) ............................................................
16
Wyeth v. Levine, 555 U.S. 555 (2009) .............. 15, 16
Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 529 (1952) .............................................
9
CONSTITUTION

U.S. CONST. amend. X ......................................
4
U.S. CONST. art. I ............................................. 8, 24
U.S. CONST. art. I, § 1 ......................................
7-8
U.S. CONST. art. I, § 1, cl. 18 ............................
8
U.S. CONST. art. I, § 3 ......................................
9


vi
TABLE OF AUTHORITIES—Continued

Page(s)
U.S. CONST. art. II ............................................
8
U.S. CONST. art. III ..........................................
8
U.S. CONST. art. III, § 1....................................
8
U.S. CONST. art. VI, § 2 .................................... 4, 13
STATUTES
28 U.S.C. § 1331 ...............................................
23
28 U.S.C. § 1332 ...............................................
23
28 U.S.C. § 1333 ...............................................
23
Administrative Procedure Act, 5 U.S.C. § 706 ..
19
5 U.S.C. § 706(2)(A) ......................................
11
5 U.S.C. § 706(2)(C)........................................ 4, 10, 20
Federal Communications Act, 47 U.S.C. §
151, et seq.
47 U.S.C. § 254 (1996) ..................................
2
47 U.S.C. § 332(c)(7)(A) ................................
12
47 U.S.C. § 332(c)(7)(B) ................................ 12, 26
47 U.S.C. § 332 (c)(7)(B)(ii) ..................... 12, 25, 32
47 U.S.C. § 332(c)(7)(B)(v) ............................
25
47 U.S.C. § 410(c) (1971) ..............................
2
OTHER AUTHORITIES

Cass R. Sunstein, Chevron Step Zero, 92 VA.
L. REV. 187 (2006) .........................................
28
THE FEDERALIST NO. 69 (Alexander
Hamilton) ......................................................
8



vii
TABLE OF AUTHORITIES—Continued

Page(s)
Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain, 89 GEO. L. J. 833
(2001) ............................................................
28
WEBSTER’S NEW INTERNATIONAL DICTIONARY
(2d ed. 1954) .................................................
23




INTEREST OF AMICI CURIAE

1
The National Governors Association (NGA), founded
in 1908, is the collective voice of the Nation’s gover-
nors. NGA’s members are the governors of the 50
States, three Territories, and two Commonwealths.
The National Conference of State Legislatures
(NCSL) is a bipartisan organization that serves the
legislators and staffs of the nation’s 50 States, its
Commonwealths, and Territories. NCSL provides
research, technical assistance, and opportunities for
policymakers to exchange ideas on the most pressing
state issues. NCSL advocates for the interests of
state governments before Congress and federal
agencies, and regularly submits amicus briefs to this
Court in cases, like this one, that raise issues of vital
state concern.
The Council of State Governments (CSG) is the
Nation’s only organization serving all three branches
of state government. CSG is a region-based forum
that fosters the exchange of insights and ideas to
help state officials shape public policy. This offers
unparalleled regional, national, and international
opportunities to network, develop leaders, collabo-
rate, and create problem-solving partnerships.
The International City/County Management Asso-
ciation (ICMA) is a nonprofit professional and educa-
tional organization of over 9,000 appointed chief
executives and assistants serving cities, counties,
towns, and regional entities. ICMA’s mission is to

1 The parties have consented to the filing of this brief, and
their letters of consent are on file with the Clerk (Rule 37.2).
This brief was not written in whole or in part by the parties’
counsel, and no one other than the amicus made a monetary
contribution to its preparation (Rule 37.6).

2
create excellence in local governance by advocating
and developing the professional management of local
governments throughout the world.
Government Finance Officers Association (GFOA)
is the professional association of state, provincial,
and local finance officers in the United States and
Canada. The GFOA has served the public finance
profession since 1906 and continues to provide lead-
ership to government finance professionals through
research, education, and the identification and pro-
motion of best practices. Its 17,500 members are
dedicated to the sound management of government
financial resources.
The National Association of Regulatory Utility
Commissioners (NARUC), a quasi-governmental non-
profit organization founded in 1889, represents the
government officials in the fifty States, the District
of Columbia, Puerto Rico, and the Virgin Islands,
charged with the duty of regulating, inter alia, the
telecommunications common carriers within their
respective borders. The United States Congress, in
the Federal Communication Commission’s authoriz-
ing legislation, assigned specific duties to and in-
cluded specific reservations of existing authority of
NARUC members. Congress has also consistently
recognized that NARUC is a proper party to repre-
sent the collective interest of the State regulatory
commissions. See, e.g., 47 U.S.C. § 410(c) (1971)
(Congress designated NARUC to nominate members
of Federal-State Joint Board to consider issues of
common concern); see also 47 U.S.C. § 254 (1996).
Both federal courts and numerous federal admin-
istrative agencies have also recognized NARUC’s
representative role.

3
All state and local governments have a vital inter-
est in the scope of federal regulatory authority. Often
an expansion of federal authority means a restriction
of state and local authority. If courts are required to
defer to any reasonable federal agency interpretation
of its own jurisdiction, the scope of federal authority
likely will expand—perhaps quite dramatically—and
state and local authority will recede. It has long been
understood that courts, exercising independent judg-
ment, play a vital role in ensuring that federal
administrative agencies do not overstep the bounds of
their delegated authority. Amici urge this Court to
reaffirm that important judicial role in this case, and
in so doing preserve the protections that state and
local governments have enjoyed against administra-
tive overreach.

SUMMARY OF ARGUMENT

Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), addressed the
question of how courts should review “an agency’s
construction of the statute which it administers.” Id.
at 842. The Court concluded that when a statute
is “silent or ambiguous with respect to the specific
issue,” a reviewing court should defer to the agency’s
reasonable interpretation, even if it is not the one the
court would have reached in the exercise of independ-
ent judgment. Id. at 843 n.11. The question in this
case is whether the rule of deference prescribed by
Chevron applies to an agency’s determination of the
scope of its own jurisdiction.
The structure of American government and the
traditions that have grown up around it instruct that
the answer to this question must be “no.” Agencies
are creatures of law and can exercise only the powers

4
delegated to them by law. They have no inherent
authority to define the scope of their own authority.
Congress has long provided for judicial review of
agency action, in significant part to provide a check
on agencies that reach beyond the scope of their
authority. This function is specifically prescribed by
the Administrative Procedure Act, 5 U.S.C. § 706(2)(C),
which directs courts to set aside agency action “in
excess of statutory jurisdiction.” A practice of de-
ferring to agency interpretations of their own juris-
diction would eviscerate this vital check on agency
power, one which is necessary to preserve the basic
structure of our government.
The exercise of independent judicial judgment
about the scope of agency authority is especially
important in cases, such as this one, where an expan-
sion of agency power comes at the expense of state
and local governments. The Constitution gives the
federal government only enumerated powers, and the
Tenth Amendment specifically reserves all other
powers to the states and the people. This background
understanding is often important in interpreting
gaps and silences that inevitably appear in federal
statutes delegating power to administrative agencies.
If every gap, silence, or ambiguity about the scope of
an agency’s authority is given over to the agency to
resolve through plausible interpretation, the result is
likely to be that the agency often will be able to
trump state authority, through the preemptive force
of the Supremacy Clause, whether or not this was
contemplated by Congress when it enacted the stat-
ute in question. Judges, because of their diverse
experience, training, and independence, are likely to
be more sensitive to the broader tradition of Ameri-
can federalism that should properly inform the way

5
gaps and silences are filled when the question is one
of agency jurisdiction.
The question in this case is not a matter of limiting
or cutting back on the deference prescribed by
Chevron. A careful reading of Chevron and the many
cases that follow reveals that this Court presupposed
the review it described would apply only where an
agency interprets a statute it is “charged with admin-
istering.” See Chevron, 467 U.S. at 844, 865. In
other words, Chevron-style deference applies only
when the agency has jurisdiction over the issue; to be
“charged with administering” a question is to have
administrative authority over it. The underlying
theory of Chevron—that Congress, by delegating
authority to an agency, intends the agency to have
primary interpretational authority over issues that
implicate contested policy questions—also presup-
poses that the interpretational question is within the
agency’s jurisdiction. Congress does not give agen-
cies a blank check to make policy wherever they
please; it delegates power to particular agencies with-
in prescribed limits. It would make no sense to say
Congress delegated power to an agency to determine
whether it has delegated power. A court must be
satisfied that the agency is acting within the scope of
its delegated power before it turns to Chevron.
Two counter-arguments have been prominently
advanced in favor of using the Chevron framework to
resolve questions of agency jurisdiction. The first is
that it is not possible to maintain a principled dis-
tinction between questions that are “jurisdictional”
and other questions of statutory interpretation. But
courts apply this distinction all the time, for example
in determining whether a federal district court has
subject matter jurisdiction or in asking whether

6
Congress has acted within the scope of its enumer-
ated powers. Courts will be assisted by the parties in
identifying questions that are jurisdictional, since
complaints about an agency exceeding the scope of its
jurisdiction likely will arise only when an agency is
seeking to expand (or possibly contract) the types of
issues it regulates. Certainly the Fifth Circuit, in
the decision under review, had no hesitation about
characterizing the issue as jurisdictional. Admit-
tedly, the distinction between jurisdictional and other
legal questions is susceptible to manipulation, but no
more so than the distinctions already present in the
Chevron doctrine between statutes that are “clear”
and those that are “ambiguous,” or the distinction
between interpretations that are “reasonable” and
those that are “unreasonable.”
A second counter-argument is that courts have
adequate authority to police agency attempts to
exceed the scope of their jurisdiction under step one
of the Chevron doctrine. This Court has used step
one of Chevron on occasion to resolve questions iden-
tified as jurisdictional. See, e.g., Food and Drug
Administration v. Brown & Williamson Tobacco
Corp., 529 U.S. 120 (2000). But there are costs to
doing so. One is that gaps, ambiguities, and silences
in statutes about the scope of an agency’s jurisdiction
must often be resolved by adverting to general prin-
ciples of American government, like federalism, and
longstanding traditions about the allocation of gov-
ernmental power. Courts are more likely to be
sensitive to these variables than agencies. Another is
that expanding the inquiry under Chevron step one to
include wide-ranging considerations of constitutional
law, statutory structure, and the history of a particu-
lar type of regulation threatens to sap Chevron of its
advantages as a rule-like structure for determining

7
the respective role of courts and agencies. It is far
better for courts to exercise independent judgment
assuring that the agencies are acting within the
scope of their authority before turning to the two-step
Chevron inquiry.

ARGUMENT


I. Constitutional Structure and Traditions

of American Government Require that

Courts Exercise Independent Judgment

in Determining the Scope of Agency

Jurisdiction

Two propositions about the structure of American
government resolve the question presented in this
case. First, “[a]n agency may not confer power upon
itself.” Louisiana Public Service Commission v. FCC,
476 U.S. 355, 374 (1986). Whatever power agencies
have to regulate is derived solely from delegations of
authority from Congress. Second, federal courts have
been directed to review agency action, in significant
part to ensure that agencies keep within the bounda-
ries of their lawfully delegated authority. Together,
these propositions mean that courts must exercise
independent judgment to assure that agencies are
acting within the jurisdiction assigned to them by
Congress. Affording Chevron deference to agency
interpretations of the scope of their own jurisdiction
would effectively allow agencies to confer power on
themselves contrary to the constitutional design.
As to the first proposition, the Constitution makes
clear that administrative bodies possess no inherent
authority to act with the force of law. The first
substantive clause of the Constitution provides: “All
legislative Powers herein granted shall be vested in a
Congress of the United States….” U.S. CONST. art. I,

8
§ 1. The President is vested with certain powers in
Article II, but the power to create departments or
agencies with the power to act with the force of law is
not among them. U.S. CONST. art. II. The courts are
vested with certain powers in Article III, but again,
the power to create tribunals inferior to the Supreme
Court, or to vest them with the power to act with the
force of law is not among them. U.S. CONST. art. III,
§ 1. Instead, the Constitution provides, in the Neces-
sary and Proper Clause, that Congress is given the
power “[t]o make all Laws which shall be necessary
and proper for carrying into Execution” the enumer-
ated legislative powers of Article I, as well as “all
other Powers vested by this Constitution in the Gov-
ernment of the United States, or in any Department
or officer thereof.” U.S. CONST. art. I, § 1, cl. 18
(emphasis added).
The Constitution therefore makes clear that the
power to create any governmental department or
officer, other than the constitutional offices men-
tioned in the Constitution, is given exclusively to
Congress. And it makes clear that the power to give
these departments and officers authority to act with
the force of law, when this is necessary and proper to
carry out the various powers vested in the federal
government by the Constitution, is given exclusively
to Congress.
The understanding that administrative bodies have
no inherent authority to act with the force of law
is a bedrock principle of American separation of
powers. The principle has never been doubted.
See THE FEDERALIST NO. 69, at 361 (Alexander
Hamilton) (noting that the President, unlike the King
of England, has no inherent authority to prescribe
“rules concerning the commerce or currency of the

9
nation”). This was the principle enforced in the Steel
Seizure Case, where the Court held that the Presi-
dent had no inherent authority to seize steel mills,
even if he or she deemed it necessary to maintain the
supply of material for the armed forces in time of
war. Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 529, 585 (1952).
This principle has been recognized repeatedly in
decisions by this Court. See Brown & Williamson
Tobacco Corp., 529 U.S. at 161 (citations omitted)
(“no matter how ‘important, conspicuous, and contro-
versial’ the issue, and regardless of how likely the
public is to hold the Executive Branch politically
accountable, an administrative agency’s power to
regulate in the public interest must always be
grounded in a valid grant of authority from Con-
gress”); Chrysler Corp. v. Brown, 441 U.S. 281, 302
(1979) (“The legislative power of the United States is
vested in the Congress, and the exercise of quasi-
legislative authority by governmental departments
and agencies must be rooted in a grant of such power
by the Congress and subject to limitations that
body imposes.”); Interstate Commerce Commission v.
Cincinnati, New Orleans, & Texas Pacific Railway
Co., 167 U.S. 479, 505 (1897) (Interstate Commerce
Commission lacked authority to prescribe rates for
the future since this power had not been delegated by
Congress); see also James B. Beam Distilling Co. v.
Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concur-
ring) (“The Executive . . . in addition to ‘tak[ing] Care
that the Laws be faithfully executed,’ Art. I, § 3, has
no power to bind private conduct in areas not
specifically committed to his control by Constitution
or statute….”).

10
If administrative bodies have no power to act out-
side the scope of the authority delegated to them by
Congress, how is this principle to be enforced? Con-
gress may police administrative exercises of author-
ity by conducting oversight hearings, making appro-
priations decisions, and adopting clarifications of
existing agency authority. But it is difficult for
Congress, given its limited membership and the
many demands on its time, to engage in a systematic
review of administrative behavior to ensure compli-
ance with the limits on agency authority. Thus,
Congress has long provided, as a further and more
efficacious check to assure that administrative action
remains within the confines of delegated authority,
broad rights allowing judicial review of agency action.
The most notable of such rights of review, of course,
is that established by the Administrative Procedure
Act (APA). Congress no doubt envisioned the review
provisions of the APA as providing a check on
agencies that might take action outside the scope
of their delegated authority. Section 706 provides
expressly that “The reviewing court shall—…(2) hold
unlawful and set aside agency action, findings, and
conclusions found to be—-…(C) in excess of statutory
jurisdiction, authority, or limitations, or short of
statutory right….” 5 U.S.C. § 706(2)(C) (emphasis
added).
Note the care with which Congress expressed its
understanding that courts should enforce limits on
delegated agency authority, utilizing a variety of
alternative expressions to convey this idea: in excess
of jurisdiction, in excess of authority, in excess of
limitations, or short of statutory right. Moreover, the
directive to courts to review agency action for compli-
ance with the scope of delegated authority is separate

11
and distinct from the directive to determine whether
the agency action is “not in accordance with law.”
5 U.S.C. § 706(2)(A). This clearly indicates that
Congress recognized a distinction between agency
action that is ultra vires and agency action that is
otherwise inconsistent with the law. A practice of
deferring to agency determinations of the scope of
their own authority would thus fly in the face of the
plain language of the APA.
Judicial review of questions of agency jurisdiction
is especially important given the variety of conflicts
that arise over the scope of agency authority. Agency
jurisdiction can implicate the respective authority
of the federal government and the states, the scope
of governmental as opposed to private or market
ordering, and the respective authority of two or more
federal administrative agencies. Congress has the
ultimate authority to set the boundaries of agency
authority on all these dimensions, and courts have a
duty to assure that those boundaries are maintained.
As this Court has observed, “[t]o permit an agency
to expand its power in the face of a congressional
limitation on its jurisdiction would be to grant to the
agency the power to override Congress. This we are
both unwilling and unable to do.” Louisiana Public
Service Commission, 476 U.S. at 374-75.

II. Independent Judicial Determination is

Especially Important When Federal Agen-

cies Seek to Expand their Power at the

Expense of State and Local Governments

State and local governments are often regulated by
federal agencies and often regulate the same subject
matter as federal agencies. As a result, allowing
federal agencies to determine the scope of their own
jurisdiction, with only deferential review by courts,

12
would effectively allow federal agencies to trench
upon the authority of state and local governments,
with little constraint or check. The issue presented
by this case vividly illustrates the risk.
47 U.S.C. § 332(c)(7)(B) reflects a limited preemp-
tion of state and local authority. Specifically, as
relevant to this case, the statute requires state and
local governmental authorities to act upon any re-
quest for authority to construct a new wireless
facility “within a reasonable period of time.” That
section, however, also contains an anti-preemption or
savings clause:
Except as provided in this paragraph, nothing in
this chapter shall limit or affect the authority of
a State or local government or instrumentality
thereof over decisions regarding the placement,
construction, and modification of personal wire-
less service facilities. 47 U.S.C. § 332(c)(7)(A).
The Commission’s declaratory order in this case,
which the court of appeals recognized was effect-
tively a rule, expands the preemptive effect of
§ 332(c)(7)(B)(ii). This not only violates the statute’s
savings clause, it also means the Commission’s “in-
terpretation” cannot be afforded Chevron deference.
Before the Commission’s order, local courts deter-
mined on a case-by-case basis whether the permitting
authority acted within a reasonable period of time.
See 47 U.S.C. § 332(c)(7)(B)(ii) (courts are to deter-
mine claims of unreasonable delay “taking into
account the nature and scope of such request”).
Under the Commission’s order, courts must adopt a
presumption that any request not acted upon within
the Commission’s 90- and 150-day time limits is
“unreasonable.” Whether this presumption changes

13
the burden of persuasion, or merely the burden of
producing evidence (as the court of appeals thought),
it necessarily restricts the scope of authority of state
and local governmental permitting authorities rela-
tive to what it was before the Commission acted.
Failure to act within the prescribed time frames will
create a presumption of unreasonableness. This pre-
sumption will constrain local permitting authorities
to comply within the times frames laid down by the
Commission. The Commission would not have im-
posed its time frames if it did not believe they would
have a constraining effect on local permitting bodies.
A decision by a federal regulatory agency to
preempt—or in this case, to expand the scope of an
existing statutory preemption—cannot be taken on
the agency’s own authority without an express dele-
gation of such authority by Congress. This follows
from the more general proposition, discussed in Sec-
tion I, that agencies have no inherent authority to act
with the force of law absent a delegation from Con-
gress. When agencies seek to preempt, this conclu-
sion is reinforced by the text of the Supremacy
Clause, which makes “[t]his Constitution, and the
Laws of the United States which shall be made in
Pursuance thereof…the supreme Law of the Land.”
U.S. CONST. art. VI, cl. 2 (emphasis added). A statute
duly enacted by Congress that expressly delegates
power to preempt to an agency would fall within
the terms of the Supremacy Clause. An agency
order adopted under its general regulatory authority
does not. This Court has recognized as much. See
Louisiana Public Service Commission v. FCC, 476
U.S. 355, 384 (1986) (rejecting the FCC’s contention
that it could preempt a state regulation in order to
“effectuate a federal policy” absent congressional
authorization).

14
For similar reasons, agencies should not be given
Chevron-style deference when they interpret federal
statutes (or their own regulations) to have preemp-
tive effect. The decision to displace state law through
preemption implicates important questions of feder-
alism. See, e.g., Medtronic Inc. v. Lohr, 518 U.S. 470,
488 (1996) (describing preemption of state common
law remedies as “a serious intrusion into state sover-
eignty”). Indeed, from the perspective of the states,
there is little difference between a judgment that
state law is preempted and a judgment that state law
is unconstitutional. Both types of judgments nullify
otherwise duly enacted state statutes and common
law rules of decision. In so doing, both type of judg-
ments subtract from the power the states otherwise
enjoy as sovereign entities.
Part of our received tradition is the understanding
that the judiciary has unique competence to resolve
questions of constitutional federalism. Thus, for
example, this Court has declined to adopt interpreta-
tions of statutes that raise serious questions of con-
stitutional federalism, see, e.g., Gregory v. Ashcroft,
501 U.S. 452 (1991), and has declined to defer to
agency decisions that raise serious questions of con-
stitutional federalism. See, e.g., Gonzales v. Oregon,
546 U.S. 243, 275 (2006); Solid Waste Agency of
Northern Cook County v. United States Army Corps of
Engineers, 531 U.S. 159, 172-73 (2000). Likewise, the
decision to displace state law through preemption
should be informed by an understanding of which
areas of regulation have been delegated to the federal
government, and which have been traditionally com-
mitted to the states, and when constitutional sensi-
tivities would be irritated either by a determination
of concurrent authority or of exclusive federal com-
petence.

15
Agencies are specialized institutions, intensely
focused on the details of the particular statutory
regimes they are charged with administering. By
design and tradition, they are not expected to ponder
larger structural issues such as the relative balance
of authority between the federal and state govern-
ments, the importance of preserving state and local
autonomy, the value of allowing policy to vary in
accordance with local conditions, or the systemic
advantages of permitting state experimentation with
divergent approaches to social problems. See Gregory
v. Ashcroft, 501 U.S. at 458-59 (summarizing the
systemic benefits of federalism).
This Court’s most complete discussion of the appro-
priate standard for reviewing agency actions said to
require preemption is found in Wyeth v. Levine, 555
U.S. 555 (2009). There, the Court observed that an
agency regulation with the force of law can preempt
state law. But even in such cases, “the Court has
performed its own conflict determination, relying on
the substance of state and federal law and not on
agency proclamations of pre-emption.” Id. at 576.
Where Congress has not authorized the agency “to
pre-empt state law directly,” and where the agency
has not issued a legislative regulation that is claimed
to conflict with state law, the question is what weight
courts should give the agency’s opinion about pre-
emption. Id. The answer, the Court indicated, is
that an agency’s views should be given “some weight,”
id. (quoting Geier v. American Honda Motor Co., 529
U.S. 861, 883 (2000)), given its understanding of the
statute and its ability to make “informed determina-
tions about how state requirements may pose an
‘obstacle to the accomplishment and execution of the
full purposes and objectives of Congress,’” id. at 577
(quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

16
In no case, however, has this Court “deferred to the
agency’s conclusion that state law is pre-empted.” Id.
at 576. Rather, the weight given to the agency’s
views turned on the agency’s “thoroughness, con-
sistency, and persuasiveness.” Id. at 577.
Clearly, this was not Chevron deference. Other
recent decisions are to the same or similar effect.
See, e.g., Medtronic, 518 U.S. at 488; Geier, 529 U.S.
at 883; Watters v. Wachovia Bank, N.A., 550 U.S. 1,
38-44 (2007) (Stevens, J., joined by Roberts C.J., and
Scalia, J. dissenting). In no case has this Court
deferred to an agency opinion that preemption is
required by finding that this was “reasonable” under
step two of Chevron. To the contrary, the common
assumption has been that “the question of whether a
statute is pre-emptive” is one that “must always be
decided de novo by the courts.” Smiley v. Citicorp
(S.D.), N.A., 517 U.S. 735, 744 (1996).
Wyeth likewise states the appropriate standard of
review when an agency interprets an express pre-
emption clause.2 As Chevron teaches, when a statute
is ambiguous or contains a gap, the exercise of inter-
pretation entails a policy choice. When agencies
interpret ambiguous statutes that they have been
given authority to implement, the policy choice pro-
perly belongs to the agency. But when the ambiguity
appears in an express preemption clause, the policy

2 To the extent the dissenting opinion in Cuomo v. The Clear-
ing House Associates, L.L.C., 557 U.S. 519, 555 (2009), assumes
that Chevron applies to agency interpretations of express pre-
emption clauses, we believe it was in error, for the reasons
stated in the balance of this paragraph. In any event, the
assumptions of a dissenting opinion are not controlling author-
ity in future cases.

17
choice entails more far-reaching considerations of
federalism.
Preemption entails not only the scope of federal
agency authority, but also the displacement of state
governmental authority. It eliminates the power of
the states to act, often in areas where they have long
been understood to exercise exclusive authority.
Hence, the interpretation of an express preemption
clause has a critical effect on the balance of federal
and state authority. Courts are more likely to be
sensitive to these larger considerations of federalism
than are agencies, which may have a single-minded
focus on achieving their narrow regulatory objectives.
Agencies may be resentful of implicit competition
from state and local governments, or may place an
inordinate value on the convenience of not having to
deal with different ways to solving a problem. In
short, where interpretation entails contested issues of
policy about preemption, there is every reason to
believe that courts, rather than agencies, are the
proper institution for resolving the interpretational
question.

III. The Theory Underlying Chevron

Defer-
ence Requires that Courts Exercise

Independent Judgment in Determining

the Scope of Agency Jurisdiction
The Chevron doctrine is not in tension with the
proposition that reviewing courts must exercise inde-
pendent judgment in determining whether an agency
is acting within the scope of its delegated authority.
Chevron spoke of the need to defer to reasonable
interpretations of statutory provisions rendered by
those “entrusted to administer” a statutory scheme.
467 U.S. at 844. This comment clearly presupposes

18
that the reviewing court must satisfy itself that the
statutory provision in question is one that the agency
has been “entrusted” or “charged” with administer-
ing. See Smiley, 517 U.S. at 739. In other words,
the court must make an independent determination
that the agency has been given delegated statutory
authority to administer the provision in controversy.
This is essentially an inquiry into agency jurisdiction
or scope of authority.
Chevron also justified its rule of deference by
observing that “an agency to which Congress has
delegated policymaking responsibilities may, within
the limits of that delegation, properly rely on the
incumbent administration’s views of wise policy to
inform its judgments.” 467 U.S. at 865 (emphasis
added). This statement expressly acknowledges that
any rule of deference is limited to exercises of
statutory interpretation that fall within the dele-
gated authority of the agency, and implies that those
limits will continue to be independently determined
by the reviewing court.
More fundamentally, the underlying rationale of
Chevron compels independent judicial review of the
scope of an agency’s delegated authority. Chevron
indicated that courts should defer to reasonable
agency interpretations of statutes because Congress,
in delegating authority to an agency, impliedly in-
tends the agency rather than the court to fill any
gaps or ambiguities in the statute. 467 U.S. at 843-
44. More recent decisions have confirmed that “[a]
precondition to deference under Chevron is a delega-
tion of administrative authority.” Adams Fruit Co. v.
Barrett, 494 U.S. 638, 649 (1990); see, e.g., National
Cable & Telecommunications Association v. Brand X
Internet Services, 545 U.S. 967, 980 (2005) (“In

19
Chevron, this Court held that ambiguities in statutes
within an agency’s jurisdiction to administer are
delegations of authority to the agency to fill the
statutory gap in reasonable fashion.”). Again, this
presupposes that the court must satisfy itself that
Congress has delegated policy authority to an agency
with respect to the statutory provision in question
before the court engages in Chevron-type review.
The concept of implied delegation explains why
Chevron deference is consistent with the APA, which
generally instructs reviewing courts to decide “all
relevant questions of law.” 5 U.S.C. § 706. When
Congress delegates policy authority to an agency with
respect to a particular statutory provision, this can be
seen as an implied instruction to courts to accept
reasonable agency interpretations of that provision,
at least insofar as those interpretations rest on policy
judgments. In effect, the APA’s general command
instructing courts to exercise independent judgment
in deciding questions of law is fully respected. But
insofar as the court finds the provision in question is
ambiguous or incomplete, it adopts the agency’s rea-
sonable interpretation because Congress has given
the agency authority to make policy judgments with
respect to the provision.
This reconciliation with the APA is not possible,
however, when issues arise about whether the agency
is acting within the scope of its delegated authority.
Here there can be no finding of an “implied dele-
gation” to the agency because the very question at
issue is whether such a delegation does or does not
exist. Consequently, the language of the APA in-
structing courts to decide “all relevant questions of
law” with respect to whether the agency action is
“in excess of statutory jurisdiction, authority, or

20
limitations, or short of statutory right,” 5 U.S.C.
§ 706(2)(C), stands unqualified, and cannot be imple-
mented by drawing on Chevron’s insight about
implied delegation.
Post-Chevron decisions discussing the precondi-
tions for Chevron deference also establish that courts
must make an independent determination of whether
the agency is acting within the scope of its delegated
authority. In United States v. Mead Corp., 533 U.S.
218 (2001), the Court held, as a general matter, that
Chevron applies where Congress has delegated au-
thority to an agency to act with the “force of law” and
the agency interpretation has been rendered in an
exercise of that authority. Id. at 226-27; see also
Christensen v. Harris County, 529 U.S. 576, 586-88
(2000). The principal circumstances in which these
conditions will be satisfied are where an agency has
been given legislative rulemaking authority and has
interpreted the statute by promulgating a legislative
rule, or where an agency has been given authority to
render binding adjudications and has interpreted
the statute in making such an adjudication. Justice
Scalia dissented in Mead, and would have held that
Chevron deference is triggered whenever an agency
renders an “authoritative” interpretation of a statute
that it administers. Id. at 241.
For present purposes, the critical point is that
under either conception of the pre-conditions for
Chevron deference, the court must make an inde-
pendent determination that the interpretation in
question is one that is within the authority of the
agency to make. If the question is whether Congress
delegated power to the agency to engage in legislative
rulemaking, then the existence of such authority
must be established before applying Chevron. If the

21
question is whether Congress delegated power to the
agency to make binding adjudications, then the exist-
ence of such authority must be established before
applying Chevron. And even if the question were, as
Justice Scalia urged in his Mead dissent, whether the
agency had rendered an authoritative interpretation,
it must be established that the agency had authority
to speak to the issue. Neither the majority nor
dissenting opinions in Mead suggested that courts
would exercise anything other than independent
judgment in establishing whether these precondi-
tions to Chevron deference have been satisfied. To
this extent, then this Court has already held—
unanimously—that courts must exercise independent
judgment in determining whether an agency is acting
within the scope of its delegated authority before
the court engages in Chevron-style deference to an
agency’s interpretational views.
In short, the Chevron doctrine is not only con-
sistent with a rule requiring courts to exercise
independent judgment in determining whether an
agency is acting within the scope of its delegated
authority. Chevron requires that courts engage in
such an inquiry.

IV. The Distinction Between Jurisdictional

and Other Legal Issues Is Familiar To

Judges, and Chevron

Step One Is Not

Appropriate For Resolving Questions of

Agency Jurisdiction

There are two principal counter-arguments to the
proposition that reviewing courts should exercise
independent judgment in determining whether fed-
eral agencies are acting within the scope of their
delegated authority before applying the two-step

22
Chevron doctrine. The first counter-argument is no
principled distinction can be drawn between ques-
tions of agency jurisdiction and ordinary questions of
legality. The second is that courts can adequately
assure that agencies stay within the scope of their
authority by exercising independent judgment at
step-one of the Chevron process. Neither of these
counter-arguments defeats the powerful reasons for
determining questions of agency jurisdiction before
turning to Chevron.

A.

In a concurring opinion in Mississippi Power &
Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354,
381 (1988), Justice Scalia wrote:
[T]here is no discernible line between an agency’s
exceeding its authority and an agency’s exceed-
ing authorized application of its authority. To
exceed authorized application is to exceed au-
thority. Virtually any administrative action can
be characterized as either the one or the other,
depending upon how generally one wishes to
describe the “authority.”
With respect, we believe there is a clear conceptual
distinction between authority to act and the exercise
of authority, between ultra vires and contra legem.
This distinction, like other fundamental legal con-
cepts, may be subject to manipulation. But the dan-
gers of manipulation here are no more pronounced
than they are in other areas of the law, where it is
necessary to trust the good sense of judges in resist-
ing efforts to collapse one concept into another.
To begin, no claim can be made that the distinction
between scope of authority and exercise of authority—
between jurisdiction and legality—is one that is

23
unfamiliar to judges or beyond the capacities of
judicial administration. To ask whether a legal
entity has “jurisdiction” is to inquire whether it has
“[t]he legal power, right, or authority to hear and
determine a cause or causes, considered either in
general or with reference to a particular matter; legal
power to interpret and administer the law in the
premises.” WEBSTER’S NEW INTERNATIONAL DICTION-
ARY 1347 (2d ed. 1954). To ask whether a legal entity
has conformed to the law is to ask whether its exer-
cise of acknowledged authority or “jurisdiction”
complies with relevant legal constraints.
Federal judges are routinely asked to make and
enforce this distinction. For example, federal courts
must determine in nearly every case whether they
have subject matter jurisdiction over the controversy.
They must determine whether matters fall within
federal question jurisdiction, diversity jurisdiction,
admiralty jurisdiction, and so forth. See 28 U.S.C.
§ 1331 (federal questions); § 1332 (diversity); § 1333
(admiralty). They exercise independent judgment in
resolving these questions, and they understand that
the question of federal court jurisdiction is distinct
from whether the defendant in the case did or did not
comply with the law.
Similarly, federal courts are sometimes asked to
determine whether particular exercises of legislative
authority by Congress fall within the enumerated
powers delegated by the people to the federal govern-
ment in the Constitution. E.g., National Federation
of Independent Business v. Sibelius, 132 S. Ct. 2566
(2012). Federal courts in these cases readily under-
stand that the question of federal legislative jurisdic-
tion is distinct from other questions of legality.
Clearly, therefore, no claim can be made that the

24
distinction between jurisdiction and legality—be-
tween power to decide and the correctness of a
decision—is incoherent or beyond the capacities of
judges to grasp and enforce.
It is true that Congress frequently delineates the
scope of an agency’s authority in the same statute in
which other legal constraints on the agency’s action
are prescribed. In contrast, the subject matter juris-
diction of the courts is typically established by
discrete statutes collected in title 28 of the U.S. Code.
And federal legislative jurisdiction is established
primarily in Article I of the Constitution, which is
readily identified as a separate instrument from the
statutes enacted by Congress. This difference may
make the task of distinguishing between jurisdiction
and legality marginally more difficult in the context
of administrative agency action. But the difference
only goes to the relative degree of difficulty in distin-
guishing questions about the scope of an agency’s
power from other questions of law implicated by
agency action. It does not suggest that the inquiry is
different in kind, or that it is less important to
maintain jurisdictional boundaries where agency
action is concerned than it is where judicial or
legislative action is at issue. And it certainly does
not establish that identifying the difference between
power and legality is beyond the capacity of judges.
It is also important to recognize that the submis-
sions of the parties in identifying questions that are
jurisdictional will assist courts. Questions of agency
jurisdiction will ordinarily arise when an agency
starts to regulate where it has not previously regu-
lated, or announces that it will decline to regulate
where it has previously regulated. Parties who are
aggrieved by an agency’s deviation from its estab-

25
lished regulatory agenda will challenge the agency’s
decision on judicial review, and will allege that the
agency is departing from the scope of its jurisdiction.
This, of course, does not mean the court should set
aside all departures by agencies from the scope of
their previously-established regulatory activity. His-
torical practice does not define agency jurisdiction;
agency jurisdiction is established by Congress. Nev-
ertheless, challenges to agency action based on its
exceeding (or falling short of) its jurisdiction will
nearly always arise when an agency announces a
shift in the scope of its regulatory activity. This will
significantly assist in identifying issues that can
fairly be described as jurisdictional.
The court of appeals, in the decision below, had no
difficulty identifying the question presented in this
case as being “jurisdictional.” Pet’r’s App. 36a-37a.
The court had to decide whether the FCC had author-
ity to interpret 47 U.S.C. § 332(c)(7)(B)(ii) of the
Federal Communications Act, which prohibits state
and local governments from failing to act “within a
reasonable period of time” on a request to place,
construct, or modify personal wireless service facili-
ties. The statute expressly authorizes any person
adversely affected by a failure to act within a reason-
able time “to commence an action in any court of
competent jurisdiction.” 47 U.S.C. § 332(c)(7)(B)(v).
No mention is made of enforcement of the “reason-
able time” restriction by the FCC.3 Although the
court of appeals found the statute “silent” on the
issue of the FCC’s authority in this matter and hence

3 In contrast, § 332(c)(7)(B)(v) expressly allows parties ad-
versely affected by a decision to deny permitting authority based
on “the environmental effects of radio frequency emissions” to
petition the Commission for relief.

26
ambiguous, it had no doubt the issue was juris-
dictional. The identification of the issue as jurisdic-
tional was made easier by the fact that the FCC had
never previously asserted authority to define “reason-
able time,” or to instruct “courts of competent juris-
diction” how to respond to petitions seeking relief.4
The Commission’s declaratory order was thus an
unambiguous attempt to expand the scope of the
Commission’s regulatory authority relative to the
baseline that had existed since the provision in
question was adopted. The attempt to expand its
authority was challenged by petitioners and others,
which made it easy for the court to identify the issue
as jurisdictional.
As to the danger of manipulation, this is no more
serious in distinguishing jurisdiction from legality
than in many other areas of the law. Certainly this
distinction is not any more susceptible to manipula-
tion than the distinctions between substance and
procedure, law and equity, civil and criminal, pro-
spective and retroactive, and a host of other distinc-
tions that critically shape and organize the law. The
danger of manipulation in distinguishing jurisdiction
and legality is no greater than the danger of manip-
ulation at step one of Chevron, which asks whether
the relevant statutory provision is “clear” or “ambigu-
ous,” or at step two of Chevron, which asks whether
the agency’s interpretation is “reasonable” or “unrea-
sonable.” A willful judge will not be more signifi-
cantly constrained if Chevron applies to questions of
agency jurisdiction than he or she will be if juris-
diction must be determined by the exercise of
independent judgment.

4 See Pet’r’s App. at 49a-51a, discussing prior decisions by the
FCC disclaiming authority to interpret § 332(c)(7)(B).

27
It is also relevant that questions of jurisdiction
require an either-or, yes or no answer. In this sense
jurisdiction differs from other concepts, like tallness
(or clarity), that admit of answers falling along a
continuum, and thus invite greater uncertainty in
application. The either-or nature of jurisdictional
questions makes it more difficult for courts to distin-
guish precedents establishing or denying jurisdiction
over particular matters, which in turn limits the
opportunity for case-by-case manipulation.
The critical point is that constitutional structure
and the traditions of American government require
that administrative bodies be confined to their juris-
diction, and that courts exercise independent judg-
ment in enforcing this understanding. There is no
reason to believe that courts lack the capacity to
carry out this function. The danger of manipulation
always exists, but can only be counteracted by trust-
ing that federal courts will exercise sound judgment
and discretion in performing their appointed role.

B.

The second counter-argument is that courts can
adequately ensure that agencies adhere to limits on
their jurisdiction by enforcing legislative intent at
step one of the Chevron process. This Court has
on occasion used Chevron’s step-one inquiry to limit
agency efforts to expand their jurisdiction. Other
than framing the discussion in terms of the Chevron
doctrine, however, the Court’s analysis in these cases
is identical to what would have been undertaken in
rendering an independent judgment about the scope
of the agency’s jurisdiction before turning to the
Chevron doctrine. In this sense, the use of the Chevron
framework was unnecessary to the decisions.

28
Determining the scope of agency jurisdiction in
terms of Chevron’s step one, however, risks distorting
the Chevron inquiry in ways that provide inappropri-
ate guidance to lower courts. On the one hand,
it carries the risk that lower courts will apply a
mechanical understanding of the Chevron framework
in cases involving agency jurisdiction, and will defer
to agency determinations of their own jurisdiction
whenever the text of the statute is silent or ambigu-
ous on the issue. This ignores the importance of
background principles like federalism and historically-
derived conventions about the appropriate functions
of different legal institutions—matters that require a
more contextual analysis than simply identifying gaps
and ambiguities in a statute.
On the other hand, a step-one inquiry carries the
risk of diluting the Chevron doctrine in circumstances
where it properly applies, by expanding the step-one
inquiry in jurisdictional cases into a wide-ranging
exercise in independent judgment that goes far
beyond asking whether the statute speaks directly “to
the precise question at issue,” Chevron, 467 U.S. at
842, or whether the “intent of Congress is clear.” Id.
at 842-43. Rather than distort the Chevron process
in this fashion, we believe it would be better to
confront the question of agency jurisdiction directly,
through the exercise of independent judicial
judgment at what has come to be called “step zero” of
Chevron.5 Two decisions, in particular, illustrate
these concerns.

5 See, e.g., Cass R. Sunstein, Chevron Step Zero, 92 VA. L.
REV. 187, 207-11 (2006); Thomas W. Merrill & Kristin E.
Hickman, Chevron’s Domain, 89 GEO. L. J. 833, 836-37 (2001).

29
In Food and Drug Administration v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, this Court
was confronted with the question of whether the Food
and Drug Administration (FDA) had authority to
regulate tobacco products as customarily marketed.
All parties in the case, including the FDA, described
the question as “jurisdictional.” Both the majority
opinion and the dissenting opinion did the same.
Rather than treat agency jurisdiction as a threshold
question to be resolved before applying the two-step
Chevron inquiry, however, the Court framed its
inquiry in terms of Chevron’s step one, asking
whether Congress had spoken to the precise question
at issue. 529 U.S. at 132. After 28 pages of analysis,
the Court concluded that Congress had spoken to the
question of agency jurisdiction over tobacco. But the
Court did not find this directive in the words of the
Food Drug and Cosmetic Act (FDCA). Instead, the
Court uncovered Congress’s intention by considering
contradictions between the agency’s preferred tobacco
policy and other provisions of the FDCA, the lengthy
history of FDA disclaimers of regulatory authority
communicated to Congress, and a variety of tobacco-
specific statutes other than the FDCA that revealed a
congressional purpose to reserve tobacco policy for
itself. Id. at 133-61.
We do not suggest the jurisdictional analysis in
Brown & Williamson was mistaken, or that the ex-
tensive analysis of the history of tobacco regulation
was misguided. To the contrary, it was entirely
appropriate given the importance of the jurisdictional
question presented. Our points are simply, first, that
the Court’s independent analysis of the history of
tobacco regulation would not have changed one iota if
presented as an independent inquiry into the scope of
the agency’s jurisdiction rather than an application of

30
step one of Chevron. And second, the idea that Con-
gress had spoken to the precise question at issue—
over the course of dozens of hearings spread out over
multiple decades and through seven separate stat-
utes and amendments to statutes—was at the very
least an unorthodox application of step one of Chevron,
and one that seemingly obscures any distinction
between Chevron-style deference and independent
judicial review.
Similarly, in Dole v. United Steelworkers of Amer-
ica, 494 U.S. 26 (1990), the question was whether the
Paperwork Reduction Act authorized the Office of
Management and Budget (OMB) to review regulations
mandating that employers disclose warnings about
chemicals in the workplace to employees. After
meticulously reviewing “the language, structure, and
purpose of the Paperwork Reduction Act,” 494 U.S. at
35, the Court concluded that Congress intended the
Act to apply only to regulations requiring the disclo-
sure of information to agencies. The analysis was
indistinguishable from what the Court would do in
deciding the issue de novo. Only at the very end of
the opinion did the Court allude to the Chevron
doctrine, suggesting that the case could be decided at
step one because the intent of Congress was “clear.”
Id. at 42. Justice White, in dissent, thought that the
decision departed from Chevron principles because
the Court could not say “its interpretation is the only
one Congress could possibly have intended.” Id. at 45
(White J., dissenting). He also pointedly observed
that the respondent had argued “Chevron should not
apply in this case because OMB’s regulations actually
determine the scope of its jurisdiction under the Act,”
id. at 54, and noted that the majority did not address
this argument.

31
Again, we do not suggest the jurisdictional analysis
in Dole was incorrect or inappropriate. Our point is
that framing the analysis in terms of Chevron was
unnecessary to the decision, and the proposition that
the jurisdictional question was “clear” was strained,
since the ambiguity was eliminated only after an
elaborate and independent inquiry into statutory
structure, purpose, and history. In Dole, as in Brown
& Williamson, the question of agency jurisdiction
should have been addressed as a precondition of
Chevron deference, not as an element in the applica-
tion of Chevron deference.
Brown & Williamson and Dole suggest that this
Court is entirely cognizant of the importance of ques-
tions about the scope of agency jurisdiction, and is
prepared to engage in an appropriately contextual
analysis of jurisdictional questions when they are
presented. If the only thing at stake were how
this Court writes its opinions, little would turn on
whether jurisdictional questions are tackled at step
one or step zero. But for every case in which this
Court confronts a Chevron question, thousands are
decided by the lower courts. Those courts need
appropriate guidance on how to resolve those ques-
tions. Given the vital importance of judicial review in
preserving the proper place of agencies in American
government, the threshold question of agency juris-
diction should be highlighted for consideration by the
lower courts, not obscured. The proper way to do this
is to clarify that courts must exercise independent
judgment in determining that agencies are acting
within the scope of their authority before they turn to
Chevron’s two-step framework.



32

CONCLUSION

The decision of the court of appeals should be
reversed and remanded with instructions to the court
to exercise independent judgment in determining
whether the Commission has jurisdiction to interpret
47 U.S.C. § 332 (c)(7)(B)(ii).
Respectfully submitted,
LISA E. SORONEN
THOMAS W. MERRILL
Executive Director
Counsel of Record
STATE AND LOCAL
435 West 116th Street
LEGAL CENTER
Room 725
444 North Capitol Street NW New York, NY 10027
Suite 515
(212) 854-9764
Washington, D.C. 20001
tmerri@law.columbia.edu
(202) 434-4845
lsoronen@sso.org
JAMES BRADFORD RAMSAY
General Counsel
HOLLY RACHEL SMITH
Assistant General Counsel
NATIONAL ASSOCIATION OF
REGULATORY UTILITY
COMMISSIONERS
1101 Vermont Avenue, NW
Suite 200
Washington, DC 20005
(202) 898-2207
jramsay@naruc.org
Counsel for Amici Curiae
November 2012

Document Outline

  • Nos. 11-1545, 11-1547 Cover (State & Local Legal Center)
  • Nos. 11-1545, 11-1547 Inside Cover (State & Local Legal Center)
  • Nos. 11-1545, 11-1547 Tables (State & Local Legal Center)
  • Nos. 11-1545, 11-1547 Brief (State & Local Legal Center)

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