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

435 U.S. 519 (1978)

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

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

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

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

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

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

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

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

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

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

The House Report is in complete accord:

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

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

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

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

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

Reversed and remanded.

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

467 U.S. 837 (1984)

JUSTICE STEVENS delivered the opinion of the Court.

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

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

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

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

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

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

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

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

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

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

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

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

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

The judgment of the Court of Appeals is reversed.

Kisor v. Wilkie, 139 S. Ct. 2400

[Excerpts, Citations omitted]

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

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

I

…

II

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

[. . . ]

B

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

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

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

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

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

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

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

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

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

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

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

* * *

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

III

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

[…]

B

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

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

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

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

IV

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

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

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

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

It is so ordered.

* * * *

United States v. Mead Corp.

533 U.S. 218 (2001)

Justice Souter, delivered the opinion of the Court.

The question is whether a tariff classification ruling by the United States Customs Service deserves judicial deference. The Federal Circuit rejected Customs's invocation of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), in support of such a ruling, to which it gave no deference. We agree that a tariff classification has no claim to judicial deference under Chevron, there being no indication that Congress intended such a ruling to carry the force of law, but we hold that under Skidmore v. Swift & Co., 323 U. S. 134 (1944), the ruling is eligible to claim respect according to its persuasiveness.

I

Imports are taxed under the Harmonized Tariff Schedule of the United States (HTSUS), 19 U.S.C. § 1202. [The HTSUS authorizes Customs to fix the final classification and rate of duty applicable to merchandise, and to disseminate guidance about how to secure “a just, impartial, and uniform appraisment of imported merchandise.” The agency fulfills this statutory obligation through “ruling letters” that set tariff classifications for particular imports. According to 19 C.F.R. § 177.9, a ruling letter:

“represents the official position of the Customs Service with respect to the particular transaction or issue described therein and is binding on all Customs Service personnel in accordance with the provisions of this section until modified or revoked. In the absence of a change of practice or other modification or revocation which affects the principle of the ruling set forth in the ruling letter, that principle may be cited as authority in the disposition of transactions involving the same circumstances.”

A ruling letter is binding on all Customs Service personnel until it is modified or revoked, but the letter can be modified or revoked without notice to any person beyond the importer to whom the letter was addressed. The regulations also say that “no other person should rely on the ruling letter or assume that the principles of that ruling will be applied in connection with any transaction other than the one described in the letter.”] Since ruling letters respond to transactions of the moment, they are not subject to notice and comment before being issued, may be published but need only be made “available for public inspection.” [...]

Respondent, the Mead Corporation, imports “day planners,” three-ring binders with pages having room for notes of daily schedules and phone numbers and addresses, together with a calendar and suchlike. The tariff schedule on point falls under the HTSUS heading for “[r]egisters, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles,” which comprises two subcategories. Items in the first, “[d]iaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles,” were subject to a tariff of 4.0% at the time in controversy. Objects in the second, covering “[o]ther” items, were free of duty. 

Between 1989 and 1993, Customs repeatedly treated day planners under the “other” HTSUS subheading. In January 1993, however, Customs changed its position, and issued a ruling letter classifying Mead’s day planners as “Diaries . . . , bound” subject to [the 4.0% tariff.] [Mead challenged the re-classification in the Court of International Trade (“CIT”), which granted the Government’s motion for summary judgment. Mead appealed the decision before the Federal Circuit, where the Government argued that classification rulings, like Customs regulations, deserve Chevron deference. The Federal Court reversed the CIT decision, deciding that classification rulings had a weaker Chevron claim because they “do not carry the force of law and are not, like regulations, intended to clarify the rights and obligations of importers beyond the specific case under review.”] 

We granted certiorari in order to consider the limits of Chevron deference owed to administrative practice in applying a statute. We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. Delegation of such authority may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent. The Customs ruling at issue here fails to qualify, although the possibility that it deserves some deference under Skidmore leads us to vacate and remand.

II

When Congress has “explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” Chevron, 467 U. S., and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. See [...] APA, 5 U.S.C. §§ 706(2)(A), (D). But whether or not they enjoy any express delegation of authority on a particular question, agencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered. “[T]he well-reasoned views of the agencies implementing a statute ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,’” Bragdon v. Abbott, 524 U.S. (1998) (quoting Skidmore, 323 U.S.), and “[w]e have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer . . . .” Chevron. The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency’s care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency’s position. The approach has produced a spectrum of judicial responses, from great respect at one end, to near indifference at the other. Justice Jackson summed things up in Skidmore v. Swift & Co.:

“The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

Since 1984, we have identified a category of interpretive choices distinguished by an additional reason for judicial deference. This Court in Chevron recognized that Congress not only engages in express delegation of specific interpretive authority, but that “[s]ometimes the legislative delegation to an agency on a particular question is implicit.” Congress, that is, may not have expressly delegated authority or responsibility to implement a particular provision or fill a particular gap. Yet it can still be apparent from the agency’s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law, even one about which “Congress did not actually have an intent” as to a particular result. When circumstances implying such an expectation exist, a reviewing court has no business rejecting an agency’s exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency's chosen resolution seems unwise, but is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency's interpretation is reasonable, see [...] 5 U.S.C. § 706(2) (a reviewing court shall set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

We have recognized a very good indicator of delegation meriting Chevron treatment in express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed. It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force. Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication. That said, and as significant as notice-and-comment is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded. The fact that the tariff classification here was not a product of such formal process does not alone, therefore, bar the application of Chevron.

There are, nonetheless, ample reasons to deny Chevron deference here. The authorization for classification rulings, and Customs’s practice in making them, present a case far removed not only from notice-and-comment process, but from any other circumstances reasonably suggesting that Congress ever thought of classification rulings as deserving the deference claimed for them here.

No matter which angle we choose for viewing the Customs ruling letter in this case, it fails to qualify under Chevron. On the face of the statute, to begin with, the terms of the congressional delegation give no indication that Congress meant to delegate authority to Customs to issue classification rulings with the force of law. We are not, of course, here making any global statement about Customs’s authority, for it is true that the general rulemaking power conferred on Customs authorizes some regulation with the force of law [...] 

It is difficult, in fact, to see in the agency practice itself any indication that Customs ever set out with a lawmaking pretense in mind when it undertook to make classifications like these. Customs does not generally engage in noticeand-comment practice when issuing them, and their treatment by the agency makes it clear that a letter’s binding character as a ruling stops short of third parties; Customs has regarded a classification as conclusive only as between itself and the importer to whom it was issued, and even then only until Customs has given advance notice of intended change. Other importers are in fact warned against assuming any right of detrimental reliance. 

Indeed, to claim that classifications have legal force is to ignore the reality that 46 different Customs offices issue 10,000 to 15,000 of them each year. Any suggestion that rulings intended to have the force of law are being churned out at a rate of 10,000 a year at an agency’s 46 scattered offices is simply self-refuting. Although the circumstances are less startling here, with a Headquarters letter in issue, none of the relevant statutes recognizes this category of rulings as separate or different from others; there is thus no indication that a more potent delegation might have been understood as going to Headquarters even when Headquarters provides developed reasoning, as it did in this instance [...]

In sum, classification rulings are best treated like “interpretations contained in policy statements, agency manuals, and enforcement guidelines.” Christensen, 529 U. S., at 587. They are beyond the Chevron pale.

To agree with the Court of Appeals that Customs ruling letters do not fall within Chevron is not, however, to place them outside the pale of any deference whatever. Chevron did nothing to eliminate Skidmore’s holding that an agency’s interpretation may merit some deference whatever its form, given the “specialized experience and broader investigations and information” available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires. 

There is room at least to raise a Skidmore claim here, where the regulatory scheme is highly detailed, and Customs can bring the benefit of specialized experience to bear on the subtle questions in this case: whether the daily planner with room for brief daily entries falls under “diaries,” when diaries are grouped with “notebooks and address books, bound; memorandum pads, letter pads and similar articles,” and whether a planner with a ring binding should qualify as “bound,” when a binding may be typified by a book, but also may have “reinforcements or fittings of metal, plastics, etc.” A classification ruling in this situation may therefore at least seek a respect proportional to its “power to persuade,” Skidmore, supra; see also Christensen. Such a ruling may surely claim the merit of its writer’s thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources of weight  [...]

Since the Skidmore assessment called for here ought to be made in the first instance by the Court of Appeals for the Federal Circuit or the CIT, we go no further than to vacate the judgment and remand the case for further proceedings consistent with this opinion.

Skidmore v. Swift & Co.

323 U.S. 134 (1944)

MR. JUSTICE JACKSON delivered the opinion of the Court.

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

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

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

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

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

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

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

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

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

Christensen v. Harris County

529 U.S. 576 (2000)

Justice Thomas, delivered the opinion of the Court.

Under the Fair Labor Standards Act of 1938 (FLSA), States and their political subdivisions may compensate their employees for overtime by granting them compensatory time or “comp time,” which entitles them to take time off work with full pay. If the employees do not use their accumulated compensatory time, the employer is obligated to pay cash compensation under certain circumstances. Fearing the fiscal consequences of having to pay for accrued compensatory time, Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued compensatory time. Employees of the Harris County Sheriff's Department sued, claiming that the FLSA prohibits such a policy. The Court of Appeals rejected their claim. Finding that nothing in the FLSA or its implementing regulations prohibits an employer from compelling the use of compensatory time, we affirm [...]

I

Petitioners are 127 deputy sheriffs employed by respondents Harris County, Texas, and its sheriff, Tommy B. Thomas (collectively, Harris County). It is undisputed that each of the petitioners individually agreed to accept compensatory time, in lieu of cash, as compensation for overtime.

As petitioners accumulated compensatory time, Harris County became concerned that it lacked the resources to pay monetary compensation to employees who worked overtime after reaching the statutory cap on compensatory time accrual and to employees who left their jobs with sizable reserves of accrued time. As a result, the county began looking for a way to reduce accumulated compensatory time. It wrote to the United States Department of Labor’s Wage and Hour Division, asking “whether the Sheriff may schedule non-exempt employees to use or take compensatory time.” The Acting Administrator of the Division replied:

“[I]t is our position that a public employer may schedule its nonexempt employees to use their accrued FLSA compensatory time as directed if the prior agreement specifically provides such a provision . . . .

“Absent such an agreement, it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time." Opinion Letter from Dept. of Labor, Wage and Hour Div. (Sept. 14, 1992).

After receiving the letter, Harris County implemented a policy under which the employees’ supervisor sets a maximum number of compensatory hours that may be accumulated. When an employee's stock of hours approaches that maximum, the employee is advised of the maximum and is asked to take steps to reduce accumulated compensatory time. If the employee does not do so voluntarily, a supervisor may order the employee to use his compensatory time at specified times.

Petitioners sued, claiming that the county’s policy violates the FLSA because § 207(o)(5)—which requires that an employer reasonably accommodate employee requests to use compensatory time—provides the exclusive means of utilizing accrued time in the absence of an agreement or understanding permitting some other method. The District Court agreed, granting summary judgment for petitioners and entering a declaratory judgment that the county’s policy violated the FLSA. The Court of Appeals for the Fifth Circuit reversed, holding that the FLSA did not speak to the issue and thus did not prohibit the county from implementing its compensatory time policy [...] We granted certiorari because the Courts of Appeals are divided on the issue [...]

At bottom, we think the better reading of § 207(o)(5) is that it imposes a restriction upon an employer’s efforts to prohibit the use of compensatory time when employees request to do so; that provision says nothing about restricting an employer’s efforts to require employees to use compensatory time. Because the statute is silent on this issue and because Harris County’s policy is entirely compatible with § 207(o)(5), petitioners cannot, as they are required to do by 29 U. S. C. § 216(b), prove that Harris County has violated § 207 [...]

In an attempt to avoid the conclusion that the FLSA does not prohibit compelled use of compensatory time, petitioners and the United States contend that we should defer to the Department of Labor’s opinion letter, which takes the position that an employer may compel the use of compensatory time only if the employee has agreed in advance to such a practice. Specifically, they argue that the agency opinion letter is entitled to deference under our decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). In Chevron, we held that a court must give effect to an agency’s regulation containing a reasonable interpretation of an ambiguous statute.

Here, however, we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law— do not warrant Chevron -style deference. Instead, interpretations contained in formats such as opinion letters are “entitled to respect” under our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but only to the extent that those interpretations have the “power to persuade,” As explained above, we find unpersuasive the agency’s interpretation of the statute at issue in this case.

Of course, the framework of deference set forth in Chevron does apply to an agency interpretation contained in a regulation. But in this case the Department of Labor’s regulation does not address the issue of compelled compensatory time. The regulation provides only that “[t]he agreement or understanding [between the employer and employee] may include other provisions governing the preservation, use, or cashing out of compensatory time so long as these provisions are consistent with [§ 207(o )].” 29 CFR § 553.23(a)(2) (1999) (emphasis added). Nothing in the regulation even arguably requires that an employer’s compelled use policy must be included in an agreement. The text of the regulation itself indicates that its command is permissive, not mandatory.

Seeking to overcome the regulation’s obvious meaning, the United States asserts that the agency’s opinion letter interpreting the regulation should be given deference under our decision in Auer v. Robbins, 519 U. S. 452 (1997). In Auer, we held that an agency’s interpretation of its own regulation is entitled to deference. But Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case, however, is not ambiguous—it is plainly permissive. To defer to the agency’s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. Because the regulation is not ambiguous on the issue of compelled compensatory time, Auer deference is unwarranted.

* * *

As we have noted, no relevant statutory provision expressly or implicitly prohibits Harris County from pursuing its policy of forcing employees to utilize their compensatory time. In its opinion letter siding with the petitioners, the Department of Labor opined that “it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time.” Opinion Letter (emphasis added). But this view is exactly backwards. Unless the FLSA prohibits respondents from adopting its policy, petitioners cannot show that Harris County has violated the FLSA. And the FLSA contains no such prohibition. The judgment of the Court of Appeals is affirmed.

B.D. PARKER, Circuit Judge:

Title IV of the HEA directs the Secretary of the Department of Education to implement various federal student financial aid programs. The Perkins Loan Program is one such program, designed to assist institutions of higher education in financing low-interest loans to financially needy students.

Under the program, the DOE provides federal monies to participating institutions. …In other words, Perkins Loans are "campus-based": The schools independently determine eligibility, advance funds, collect payments and make decisions concerning loan forgiveness. …

In 1985, … Congress amended the statute to encourage graduates to work in various areas of public service, such as teaching and the Peace Corps. This encouragement took the form of partial or total Perkins Loan cancellation. …  The section of the statute pivotal to this appeal … provides that "loans shall be canceled . . . for service": "(I) as a full-time employee of a public or private nonprofit child or family service agency who is providing, or supervising the provision of, services to high-risk children who are from low-income communities and the families of such children." [For loan cancellation, the] borrower applies to the lending school, which, rather than the DOE, bears the responsibility for determining the applicant's eligibility for loan cancellation.

[Since 1992 DOE has given] guidance about eligibility for loan cancellation for child or family service. The extent to which we are required to defer to these efforts is the critical issue on this appeal.

In 1995, the DOE enacted a regulation purportedly implementing the child or family service cancellation provision. In doing so, the DOE did not add institutional gloss or agency wisdom but rather incorporated verbatim the statute, into its own regulation. …

In addition … each year the Federal Student Aid Office of the DOE issues a Student Financial Aid Handbook to participating institutions to assist them in responding to loan cancellation requests. The Handbooks introduced a new qualification … not found in the statute, requiring that the services be extended "only" to high-risk children …

Along with these sources of assistance, participating institutions may obtain guidance on loan cancellation requests by contacting the Policy Development Division of the DOE's Office of Post-secondary Education. …

De La Mota

De La Mota applied for loan cancellation in 2000 through three academic institutions: City University of New York ("CUNY") and Manhattanville College where she did her undergraduate work, and New York Law School ("NYLS"). In the ACS Child Support Litigation Unit, she litigates paternity actions and prosecutes child support cases. For two years her loans were forgiven, but in the third year, one school, NYLS, rejected her application and demanded back payment for the previous two years. CUNY and Manhattanville continued to forgive her loans.

The DOE advised NYLS not to cancel her loans, because the services she provided to children were neither "direct" nor "only to high-risk children." The word "only" originated in the Handbooks, not the … statute or … regulation. The requirement of "direct" services  … first appeared in an April 12, 2001 informal e-mail from a DOE Program Specialist to NYLS: "The borrower must be providing services directly to the high-risk children. In this case, the borrower is providing services to the City of New York as an attorney, she is not providing services directly to high-risk children." …Upon advice from the Program Specialist that De La Mota's services and supervision of the provision of services were not "directly" nor "only" targeted to low-income, high-risk children, NYLS rejected her application, informing her that the DOE had determined that her position at ACS did not qualify for loan cancellation, reversed her previous cancellations, and directed her to make back payments. …

I.

As an initial matter, we note that the Appellants appear comfortably to meet the statute's textual qualifications for loan forgiveness. They are "full-time employee[s] of a public . . . nonprofit child or family service agency" who are "providing . . . services to high-risk children who are from low-income communities and the families of such children." … Congress thought cancellation subsidies were necessary because, traditionally, child and family service work tended to be low-paying, and the subsidies would encourage qualified graduates to enter the field.

II.

Notwithstanding the text of the statute and its intended purposes,… the DOE inserted "only" as a qualification in the 1996-1997 and 2001-2002 Handbooks…. On the basis of this qualification, the DOE recommended denial of loan forgiveness if an applicant performed any service, however sporadic or minimal, for anyone not at high-risk and not from a low-income community. Later, a DOE Program Specialist concluded and informally opined that loan cancellation was available only to applicants who provided services "directly" and "exclusively" to high-risk children and their families. This requirement effectively disqualified any public interest attorney litigating on behalf of poor, high-risk children; according to the DOE, an ACS attorney's client is New York City and an attorney provides services directly only to her client. … Significantly, the DOE did not use its regulation, to interpret the statute, as the regulation simply repeated the text of the statute verbatim, without the refinement or explication suggestive of any perceived ambiguity in the meaning of "providing services." …

Chevron deference is clearly inapplicable to the DOE's interpretation . . . of the term "providing services" to permit them to be provided "only," "directly" and "exclusively" to highrisk children. Under Chevron, 467 U.S. at 865, courts accord deference to an interpretation of a statute adopted by the agency that has been charged by Congress with responsibility for administering the provision. This deference, according to the DOE, is required here because of the "presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 740-41 (1996). These are necessary but hardly sufficient requirements for Chevron deference.

The Supreme Court gave further attention to this issue in United States v. Mead Corp., 533 U.S. 218 (2001). It observed that an agency lacks a "lawmaking pretense in mind" when it makes pronouncements not binding on third parties and not in a notice-and-comment fashion. Mead's framework has been understood to distinguish "between formal and informal procedures" and "between generality and particularity in administrative decision making," where the former in each category warrant Chevron deference, but the latter do not. Here the "directly" and "exclusively" qualifications did not emerge from any formal rule-making procedures. As far as we can determine, they are ad hoc, previously unwritten rules, supplied by a DOE staff employee when determining appellants' eligibility. The requirement of "only" serving high-risk children, which first surfaced in the Handbook, fares no better, as its provenance is equally informal. Christensen v. Harris County, 529 U.S. 576, 587 (2000), made clear that "interpretations contained in policy statements, agency manuals and enforcement guidelines, all of which lack the force of law — do not warrant Chevron style deference."

Appellants contend that although a Skidmore analysis is appropriate, we ought not defer to the DOE's various informal or ad hoc interpretations. The DOE urges deference under Skidmore, because when denying loan cancellation, it contends that it "bring[s] the benefit of specialized experience to bear." We disagree. The DOE's critical narrowing requirements — "exclusively" and "directly" — hardly rise to the level of an agency interpretation since, as we have seen, they were pronounced initially by a DOE staff member. By contrast, the official narrowing of the statute with the addition of the qualification "only" originated in two DOE Handbooks; therefore the weight we accord the DOE's interpretation of this statute is determined through Skidmore analysis.

III.

Skidmore respect … depends on [the interpretation’s] "thoroughness," "validity," "consistency," and "power to persuade.".

A. Thoroughness

The DOE's 1996-1997 and 2001-2002 Handbooks interpret the eligibility requirement as applicable to those "providing services only to high risk children." In application, the DOE Program Specialist did not rely solely on "only," but grafted on "exclusively" and "directly." These latter requirements are neither synonymous with "only" nor equivalent in their narrowing force. For us to find "thoroughness evident in its consideration," the DOE would have had, at minimum, to adhere in practice to its own Handbook language and meaning..

Furthermore, thoroughness is impossible for an agency staff member to demonstrate when the staff member does not report to the Secretary, bears no law-making authority, and is unconstrained by political accountability. Thorough consideration requires a macro perspective that a staff member, acting alone, lacks. … We have shown deference to the opinions of agency officials who, though not an agency secretary or commissioner, hold substantial responsibility. … The more critical point here, of course, is the immateriality of one staff member's interpretation, when Congress expressly delegated rule-making authority to the Secretary. … The DOE has not convinced us that its Program Specialist exhibits either this authority or expertise.

Moreover, it is insufficient for the DOE as an agency merely to adopt the staff member's interpretation after the fact, or during the course of subsequent litigation. "[A] position adopted in the course of litigation lacks the indicia of expertise, regularity, rigorous consideration, and public scrutiny that justify Chevron deference." …Such endorsements also lack the thoroughness required for Skidmore respect.

B. Validity

The "validity" element of Skidmore analysis draws our attention to whether an agency pronouncement is well-reasoned, substantiated, and logical. …

The DOE contends that, in practice, it needs to narrow § 1087ee(a)(2)(I) in order to distinguish, for instance, between the support staff (administrative assistants, janitors, fundraisers) at a child or family service agency and those properly deserving loan cancellation. However, the addition of "only" does not help to reach this end. …

The "directly" requirement, when interpreted to exclude public interest attorneys because the government is their "client," further erodes § 1087ee(a)(2)(I). All qualifying "full-time employee[s] of a public or private nonprofit child or family service agency" serve multiple beneficiaries — the children at risk, the community, the government, the employing agency, the donors and trustees of the employing agency, to name the most obvious. The mere fact that a public interest attorney represents a client does not necessarily make that client the exclusive beneficiary of their work.

The DOE also requires provision of services "exclusively" to high-risk and low-income children. … The statute does not require that the children be low-income, but simply that they be from low-income communities. Congress has defined "low-income communities" for this purpose as "communities in which there is a high concentration of children eligible to be counted under title I of the Elementary and Secondary Education Act of 1965."  In other words, the low-income requirement is by definition fluid, guided by concentration rather than fixed by rules. …

C. Power to Persuade

Perhaps most importantly, the DOE interpreted the statute in an advisory capacity. The DOE argued in its brief: "Plaintiffs, however, cannot impute to DOE the positions taken by CUNY Law School or Tulane University. . . . [A]s DOE has maintained throughout this litigation, it is the individual educational institutions that render decisions upon loan cancellation, not DOE." In proceedings below, the DOE conceded that it "does not make the determination of whether a borrower qualifies for a cancellation but upon request provides guidance to institutions that make the decisions." (emphasis added). We are especially disinclined to defer to an agency when it does not purport to speak authoritatively. In the past we have declined to show an agency deference when "there is no indication in the record of the process through which [the agency] arrived at its interpretation" and the agency itself "labels its interpretation as `tentative'" because "we cannot say with confidence that [the agency's] interpretation came about as the result of a reasoned process."

In sum, the DOE's interpretation — the addition of "only" in the Handbooks, coupled with the use of "directly" and "exclusively" in an advisory role — lacks the power to persuade, and the DOE fails to show thoroughness in its consideration or validity in its reasoning. Thus, even assuming arguendo that the agency offered consistent guidance, we are not bound to defer to its construction of the statute.

* * *

Justice Souter references two cases throughout the Mead decision: Skidmore and Christensen. Skidmore is a case from 1944 (long before Chevron or Mead) that lists the factors courts consider when they extend “lesser deference” to agencies’ interpretations of statutes when those interpretations lack the “force of law.” Christensen, which was decided only a year before Mead, explains why courts should extend some deference to agencies’ statutory interpretations even when they do not have the force of law.

Justice KENNEDY delivered the opinion of the Court.

These cases present the question whether the Clean Water Act (Act) and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the United States. Under the statute and its implementing regulations, a permit is required if the discharges are deemed to be "associated with industrial activity." 33 U.S.C. § 1342(p)(2)(B). The Environmental Protection Agency (EPA), with the responsibility to enforce the Act, has issued a regulation defining the term "associated with industrial activity" to cover only discharges "from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 C.F.R.§ 122.26(b)(14) (2006). The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24-27. For reasons now to be explained, the Court concludes the EPA's determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).

I

A

Congress passed the Clean Water Act in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 86 Stat. 816, 33 U.S.C. § 1251(a). A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States. See §§ 1311(a), 1362(12); EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). The Act defines "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture." § 1362(14).

When the Act took effect, the EPA found it difficult to process permit applications from countless owners and operators of point sources throughout the country. … [T]he EPA issued new regulations to define with more precision which categories of discharges qualified as point sources in the first place. Among these regulations was the so-called Silvicultural Rule. This rule is at issue here. It provides:

"Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff." 40 C.F.R. § 122.27(b)(1).

Under the quoted rule, any discharge from a logging-related source that qualifies as a point source requires an NPDES permit unless some other federal statutory provision exempts it from that coverage. In one such provision, 33 U.S.C. § 1342(p), Congress has exempted certain discharges of stormwater runoff. …

 As relevant here, Congress directed the EPA to continue to require permits for stormwater discharges "associated with industrial activity." § 1342(p)(2)(B). The statute does not define that term, but the EPA adopted a regulation (hereinafter Industrial Stormwater Rule) in which it defined it as

"the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the NPDES program under this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from ... immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility...." 40 C.F.R. § 122.26(b)(14) (2006).

The Industrial Stormwater Rule also specified that, with one exception not relevant here, "[f]acilities classified as Standard Industrial Classificatio[n] 24" are "considered to be engaging in `industrial activity' for purposes of paragraph (b)(14)." Ibid. The Standard Industrial Classifications are a system used by federal agencies to categorize firms engaged in different types of business activity. …This includes the "Logging" industry, defined as "[e]stablishments primarily engaged in cutting timber and in producing ... primary forest or wood raw materials."

On November 30, 2012 — three days before the instant cases were argued in this Court — the EPA issued its final version of an amendment to the Industrial Stormwater Rule. The amendment was the agency's response to the Court of Appeals' ruling now under review. …

It is fair to say the purpose of the amended regulation is to bring within the NPDES permit process only those logging operations that involve the four types of activity (rock crushing, gravel washing, log sorting, and log storage facilities) that are defined as point sources by the explicit terms of the Silvicultural Rule. …

B

At issue are discharges of channeled stormwater runoff from two logging roads in Oregon's Tillamook State Forest, lying in the Pacific Coast Range about 40 miles west of Portland. Petitioner Georgia-Pacific West, along with other logging and paper-products companies, has a contract with the State of Oregon to harvest timber from the forest. It uses the roads for that purpose. When it rains (which it does often in the mountains of northwest Oregon, averaging in some areas more than 100 inches per year), water runs off the graded roads into a system of ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, in the form of dirt and crushed gravel from the roads. There is evidence that this runoff can harm fish and other aquatic organisms.

In September 2006, respondent Northwest Environmental Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon. It invoked the Clean Water Act's citizen-suit provision, 33 U.S.C. § 1365, and named as defendants certain firms involved in logging and paper-products operations (including petitioner Georgia-Pacific West), as well as state and local governments and officials (including the State Forester of Oregon, who is now petitioner Doug Decker). The suit alleged that the defendants caused discharges of channeled stormwater runoff into two waterways — the South Fork Trask River and the Little South Fork Kilchis River. The defendants had not obtained NPDES permits, and so, the suit alleged, they had violated the Act. …

[Court address jurisdictional questions]

III

Under the Act, petitioners were required to secure NPDES permits for the discharges of channeled stormwater runoff only if the discharges were "associated with industrial activity," 33 U.S.C. § 1342(p)(2)(B), as that statutory term is defined in the preamendment version of the Industrial Stormwater Rule, 40 C.F.R. § 122.26(b)(14) (2006). Otherwise, the discharges fall within the Act's general exemption of "discharges composed entirely of stormwater" from the NPDES permitting scheme. 33 U.S.C. § 1342(p)(1).

NEDC first contends that the statutory term "associated with industrial activity" unambiguously covers discharges of channeled stormwater runoff from logging roads. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That view, however, overlooks the multiple definitions of the terms "industrial" and "industry." These words can refer to business activity in general, yet so too can they be limited to "economic activity concerned with the processing of raw materials and manufacture of goods in factories." Oxford Dict. 887. The latter definition does not necessarily encompass outdoor timber harvesting. The statute does not foreclose more specific definition by the agency, since it provides no further detail as to its intended scope.

Somewhat more plausible is NEDC's claim that the preamendment version of the Industrial Stormwater Rule unambiguously required a permit for the discharges at issue. NEDC reasons that under the rule, "[f]or the categories of industries identified in this section," NPDES permits are required for, among other things, "storm water discharges from ... immediate access roads ... used or traveled by carriers of raw materials." 40 C.F.R. § 122.26(b)(14) (2006). Yet this raises the question whether logging is a "categor[y] of industr[y]" identified by the section. The regulation goes on to identify a list of "categories of facilities" that "are considered to be engaging in `industrial activity' for purposes" of the Industrial Stormwater Rule. Ibid. In the earlier version of the regulation, this list included "[f]acilities classified as Standard Industrial Classificatio[n] 24," which encompasses "Logging." Ibid. See also supra, at 1332-1333. Hence, NEDC asserts, logging is among the categories of industries for which "storm water discharges from ... immediate access roads ... used or traveled by carriers of raw materials" required NPDES permits under the earlier version of the Industrial Stormwater Rule. § 122.26(b)(14). NEDC further notes, in support of its reading of the regulation, that modern logging is a large-scale, highly mechanized enterprise, using sophisticated harvesting machines weighing up to 20 tons.

The EPA takes a different view. It concludes that the earlier regulation invoked Standard Industrial Classification 24 "`to regulate traditional industrial sources such as sawmills.'" Brief for United States as Amicus Curiae 24-25. It points to the regulation's reference to "facilities" and the classification's reference to "establishments, which suggest industrial sites more fixed and permanent than outdoor timber-harvesting operations. Ibid. See also 55 Fed.Reg. 47990, 48008 (1990). This reading is reinforced by the Industrial Stormwater Rule's definition of discharges associated with industrial activity as discharges "from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 C.F.R. § 122.26(b)(14) (2006). This language lends support to the EPA's claim that the regulation does not cover temporary, outdoor logging installations. It was reasonable for the agency to conclude that the conveyances at issue are "directly related" only to the harvesting of raw materials, rather than to "manufacturing," "processing," or "raw materials storage areas." See Oxford Dict. 1066 (manufacturing is "mak[ing] (something) on a large scale using machinery"); id., at 1392 (processing is "perform[ing] a series of mechanical or chemical operations on (something) in order to change or preserve it"). In addition, even if logging as a general matter is a type of economic activity within the regulation's scope, a reasonable interpretation of the regulation could still require the discharges to be related in a direct way to operations "at an industrial plant" in order to be subject to NPDES permitting.

NEDC resists this conclusion, noting that elsewhere in the Industrial Stormwater Rule the EPA has required NPDES permits for stormwater discharges associated with other types of outdoor economic activity. See § 122.26(b)(14)(iii) (mining); § 122.26(b)(14)(v) (landfills receiving industrial waste); § 122.26(b)(14)(x) (large construction sites). The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent than timber-harvesting operations are and have a closer connection to traditional industrial sites. In light of the language of the regulation just discussed, moreover, the inclusion of these types of economic activity in the Industrial Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation's reach may be limited by the requirement that the discharges be "directly related to manufacturing, processing or raw materials storage areas at an industrial plant." § 122.26(b)(14).

It is well established that an agency's interpretation need not be the only possible reading of a regulation — or even the best one — to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it "unless that interpretation is `plainly erroneous or inconsistent with the regulation.'" Chase Bank USA, N.A. v. McCoy, 562 U.S. ___, ___, 131 S.Ct. 871, 880, 178 L.Ed.2d 716 (2011) (quoting Auer, 519 U.S., at 461, 117 S.Ct. 905). The EPA's interpretation is a permissible one. Taken together, the regulation's references to "facilities," "establishments," "manufacturing," "processing," and an "industrial plant" leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities.

There is another reason to accord Auer deference to the EPA's interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. Smith-Kline Beecham Corp., 567 U.S. ___, ___, 132 S.Ct. 2156, 2166-2167, 183 L.Ed.2d 153 (2012). The opposite is the case. The 1338*1338 agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits.

The EPA's decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff before it enters rivers and streams, Ore. Admin. Rule 629-625-0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629-625-0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629-625-0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads — and in particular of state forest roads — are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work "in consultation with State and local officials" to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U.S.C. § 1342(p)(6).

* * *

The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the agency, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme.

[ . . . ]

Justice SCALIA, concurring in part and dissenting in part.

I join Parts I and II of the Court's opinion; I agree that these cases are not moot and that the District Court had jurisdiction. I do not join Part III. The Court there gives effect to a reading of EPA's regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the agency has vividly illustrated that it can write a rule saying precisely what it means — by doing just that while these cases were being briefed.

Enough is enough.

I

For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of "defer[ring] to an agency's interpretation of its own regulations." This is generally called Seminole Rock or Auer deference.

Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency's interpretation of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court's deference to the agency makes the difference (note the Court's defensive insistence that the agency's interpretation need not be "the best one," ante, at 1337). And respondent has asked us, if necessary, to "`reconsider Auer.'" I believe that it is time to do so. See Brief for Respondent 42, n. 12; see also Brief for Law Professors on the Propriety of Administrative Deference as Amici Curiae. This is especially true because the circumstances of these cases illustrate Auer's flaws in a particularly vivid way.

The canonical formulation of Auer deference is that we will enforce an agency's interpretation of its own rules unless that interpretation is "plainly erroneous or inconsistent with the regulation." But of course whenever the agency's interpretation of the regulation is different from the fairest reading, it is in that sense "inconsistent" with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. The agency's interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading — within the scope of the ambiguity that the regulation contains.

Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever — just the ipse dixit that "the administrative interpretation... becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Our later cases provide two principal explanations, neither of which has much to be said for it. First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. The implied premise of this argument — that what we are looking for is the agency's intent in adopting the rule — is false. There is true of regulations what is true of statutes. As Justice Holmes put it: "[w]e do not inquire what the legislature meant; we ask only what the statute means." Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them.

The other rationale our cases provide is that the agency possesses special expertise in administering its "`complex and highly technical regulatory program.'" That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations — unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its "special expertise" to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule — to "say what the law is," Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his "special expertise" to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the "special expertise" of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best.

Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the meaning of regulations that they themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd.

But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to  issue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the statute. While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers — that the power to write a law and the power to interpret it cannot rest in the same hands. "When the legislative and executive powers are united in the same person ... there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151-152 (O. Piest ed., T. Nugent transl. 1949). Congress cannot enlarge its own power through Chevron — whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way — the competing political branch — is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important.

But when an agency interprets its own rules — that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a "flexibility" that will enable "clarification" with retroactive effect. … Auer deference encourages agencies to be "vague in framing regulations, with the plan of issuing `interpretations' to create the intended new law without observance of notice and comment procedures." Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power.

It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency's view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the  agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. See 77 Fed.Reg. 72974 (2012) (to be codified in 40 C.F.R. pt. 122, sub pt. B). It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it argues here. And there is another respect in which a lack of Chevron-type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement.

In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.

II

I would therefore resolve these cases by using the familiar tools of textual interpretation to decide: Is what the petitioners did here proscribed by the fairest reading of the regulations?  

… The fairest reading of the statute and regulations is that these discharges were from point sources, and were associated with industrial activity. …

Because the fairest reading of the agency's rules proscribes the conduct at issue in these cases, I would affirm the judgment below. It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.

The Chevron doctrine gives agencies a lot of deference to interpret statutes where Congress has not spoken directly to the issue. However, there are several limits to that deference. This lesson will describe the boundaries of Chevron deference, namely:

• Chevron deference only applies when agencies’ interpretations have the “force of law.”

• Chevron deference does not apply when judges decide that the agency interpretation concerns a “major question” with “vast economic or political significance.”

Limits on Chevron Deference: Force of Law Requirement

After issuing the Chevron opinion, the Supreme Court clarified that Chevron deference only applies to agency interpretations that have the force of law. The benchmark case for this limitation on Chevron deference is United States v. Mead Corporation. We will read Mead, and then we will read Skidmore v. Swift, which provides guidelines for the “lesser deference” that courts should give to agency interpretations that do not have the force of law. Finally, in Christensen v. Harris County, we will see how courts review interpretations under the lesser Skidmore standard of deference.

Limits on Chevron Deference: Major Questions Doctrine

In the last few decades, the Supreme Court has placed another limitation on the Chevron Doctrine’s scope. The “major questions doctrine” holds that courts should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” The Supreme Court justifies this limitation with the non-delegation doctrine. According to the Supreme Court, courts are supposed to interpret “major” legal questions, not administrative bureaucrats. 

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

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

King v. Burwell

135 S. Ct. 475 (2015)

CHIEF JUSTICE ROBERTS, delivered the opinion of the Court.

The Patient Protection and Affordable Care Act adopts a series of interlocking reforms designed to expand coverage in the individual health insurance market. First, the Act bars insurers from taking a person’s health into account when deciding whether to sell health insurance or how much to charge. Second, the Act generally requires each person to maintain insurance coverage or make a payment to the Internal Revenue Service. And third, the Act gives tax credits to certain people to make insurance more affordable.

In addition to those reforms, the Act requires the creation of an “Exchange” in each State—basically, a marketplace that allows people to compare and purchase insurance plans. The Act gives each State the opportunity to establish its own Exchange, but provides that the Federal Government will establish the Exchange if the State does not.

This case is about whether the Act’s interlocking reforms apply equally in each State no matter who establishes the State’s Exchange. Specifically, the question presented is whether the Act’s tax credits are available in States that have a Federal Exchange.

I

The Patient Protection and Affordable Care Act grew out of a long history of failed health insurance reform. In the 1990s, several States began experimenting with ways to expand people’s access to coverage [One common State approach was to bar insurers from denying coverage or increasing premiums to people because of pre-existing health conditions.] Those requirements were designed to ensure that anyone who wanted to buy health insurance could do so.

The [requirements] had an unintended consequence: They encouraged people to wait until they got sick to buy insurance. Why buy insurance coverage when you are healthy, if you can buy the same coverage for the same price when you become ill? This consequence—known as “adverse selection”—led to a second: Insurers were forced to increase premiums to account for the fact that, more and more, it was the sick rather than the healthy who were buying insurance. And that consequence fed back into the first: As the cost of insurance rose, even more people waited until they became ill to buy it.

This led to an economic “death spiral.” As premiums rose higher and higher, and the number of people buying insurance sank lower and lower, insurers began to leave the market entirely. As a result, the number of people without insurance increased dramatically [...]

In 1996, Massachusetts adopted the [protections for people with pre-existing conditions]. But in 2006, Massachusetts added two more reforms: The Commonwealth required individuals to buy insurance or pay a penalty, and it gave tax credits to certain individuals to ensure that they could afford the insurance they were required to buy. The combination of these three reforms—insurance market regulations, a coverage mandate, and tax credits—reduced the uninsured rate in Massachusetts to 2.6 percent, by far the lowest in the Nation.

The Affordable Care Act adopts a version of the three key reforms that made the Massachusetts system successful. First, the Act adopts the guaranteed issue and community rating requirements. The Act provides that “each health insurance issuer that offers health insurance coverage in the individual . . . market in a State must accept every . . . individual in the State that applies for such coverage.” The Act also bars insurers from charging higher premiums on the basis of a person’s health.

Second, the Act generally requires individuals to maintain health insurance coverage or make a payment to the IRS. Congress recognized that, without an incentive, “many individuals would wait to purchase health insurance until they needed care.” So Congress adopted a coverage requirement to “minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums.” In Congress’s view, that coverage requirement was “essential to creating effective health insurance markets.” Congress also provided an exemption from the coverage requirement for anyone who has to spend more than eight percent of his income on health insurance [...]

Third, the Act seeks to make insurance more affordable by giving refundable tax credits to individuals with household incomes between 100 percent and 400 percent of the federal poverty line. Individuals who meet the Act’s requirements may purchase insurance with the tax credits, which are provided in advance directly to the individual's insurer.

These three reforms are closely intertwined. As noted, Congress found that the guaranteed issue and community rating requirements would not work without the coverage requirement. And the coverage requirement would not work without the tax credits. The reason is that, without the tax credits, the cost of buying insurance would exceed eight percent of income for a large number of individuals, which would exempt them from the coverage requirement [...]

In addition to those three reforms, the Act requires the creation of an “Exchange” in each State where people can shop for insurance, usually online. An Exchange may be created in one of two ways. First, the Act provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” Second, if a State nonetheless chooses not to establish its own Exchange, the Act provides that the Secretary of Health and Human Services “shall . . . establish and operate such Exchange within the State.”

The issue in this case is whether the Act’s tax credits are available in States that have a Federal Exchange rather than a State Exchange. The Act initially provides that tax credits “shall be allowed” for any “applicable taxpayer.” 26 U.S.C. §36B(a). The Act then provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act." 26 U.S.C. §§36B(b)-(c) (emphasis added).

The IRS addressed the availability of tax credits by promulgating a rule that made them available on both State and Federal Exchanges. As relevant here, the IRS Rule provides that a taxpayer is eligible for a tax credit if he enrolled in an insurance plan through “an Exchange,” which is defined as “an Exchange serving the individual market . . . regardless of whether the Exchange is established and operated by a State . . . or by HHS.” At this point, 16 States and the District of Columbia have established their own Exchanges; the other 34 States have elected to have HHS do so.

Petitioners are four individuals who live in Virginia, which has a Federal Exchange. They do not wish to purchase health insurance. In their view, Virginia’s Exchange does not qualify as “an Exchange established by the State,” so they should not receive any tax credits. That would make the cost of buying insurance more than eight percent of their income, which would exempt them from the Act’s coverage requirement.

Under the IRS Rule, however, Virginia’s Exchange would qualify as “an Exchange established by the State,” so petitioners would receive tax credits. That would make the cost of buying insurance less than eight percent of petitioners’ income, which would subject them to the Act’s coverage requirement. The IRS Rule therefore requires petitioners to either buy health insurance they do not want, or make a payment to the IRS.

Petitioners challenged the IRS Rule in Federal District Court. The District Court dismissed the suit, holding that the Act unambiguously made tax credits available to individuals enrolled through a Federal Exchange. The Court of Appeals for the Fourth Circuit affirmed. The Fourth Circuit viewed the Act as “ambiguous and subject to at least two different interpretations.” The court therefore deferred to the IRS's interpretation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).

II

[...] When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.”

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

It is instead our task to determine the correct reading of [ACA Section 36B]

[...] We have held that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). But in petitioners’ view, Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a subsub-sub section of the Tax Code. We doubt that is what Congress meant to do. Had Congress meant to limit tax credits to State Exchanges, it likely would have done so in the definition of “applicable taxpayer” or in some other prominent manner. It would not have used such a winding path of connect-the-dots provisions about the amount of the credit.

Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase "an Exchange established by the State” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

Reliance on context and structure in statutory interpretation is a “subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.” For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

The judgment of the United States Court of Appeals for the Fourth Circuit is Affirmed.

WEST VIRGINIA v. EPA

142 S. Ct. 2587 (2022)

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO , GORSUCH, KAVANAUGH, and BARRETT, JJ., joined.

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

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

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

* * *

III

A

* * *

“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989). Where the statute at issue is one that confers authority upon an administrative agency, that inquiry must be “shaped, at least in some measure, by the nature of the question presented”—whether Congress in fact meant to confer the power the agency has asserted. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000). In the ordinary case, that context has no great effect on the appropriate analysis. Nonetheless, our precedent teaches that there are “extraordinary cases” that call for a different approach—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. Id., at 159–160,.

Such cases have arisen from all corners of the administrative state. In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over “drugs” and “devices” included the power to regulate, and even ban, tobacco products. Id., at 126–127. We rejected that “expansive construction of the statute,” concluding that “Congress could not have intended to delegate” such a sweeping and consequential authority “in so cryptic a fashion.” Id., at 160,. In Alabama Assn. of Realtors v. Department of Health and Human Servs., 141 S. Ct. 2485, 2487 (2021) (per curiam), we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures “necessary to prevent the ... spread of” disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute's language a “wafer-thin reed” on which to rest such a measure, given “the sheer scope of the CDC's claimed authority,” its “unprecedented” nature, and the fact that Congress had failed to extend the moratorium after previously having done so. Id., at –––– – ––––, 141 S. Ct., at 2488–2490.

Our decision in [Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014)] addressed another question regarding EPA's authority—namely, whether EPA could construe the term “air pollutant,” in a specific provision of the Clean Air Act, to cover greenhouse gases. 573 U.S. at 310,. Despite its textual plausibility, we noted that the Agency's interpretation would have given it permitting authority over millions of small sources, such as hotels and office buildings, that had never before been subject to such requirements. Id., at 310, 324,. We declined to uphold EPA's claim of “unheralded” regulatory power over “a significant portion of the American economy.” Id., at 324. In Gonzales v. Oregon, 546 U.S. 243 (2006), we confronted the Attorney General's assertion that he could rescind the license of any physician who prescribed a controlled substance for assisted suicide, even in a State where such action was legal. The Attorney General argued that this came within his statutory power to revoke licenses where he found them “inconsistent with the public interest,” 21 U. S. C. § 823(f). We considered the “idea that Congress gave [him] such broad and unusual authority through an implicit delegation ... not sustainable.” 546 U.S. at 267. Similar considerations informed our recent decision invalidating the Occupational Safety and Health Administration's mandate that “84 million Americans ... either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense.” National Federation of Independent Business v. Occupational Safety and Health Administration, 142 S. Ct. 661, 665 (2022) (per curiam). We found it “telling that OSHA, in its half century of existence,” had never relied on its authority to regulate occupational hazards to impose such a remarkable measure. Id., at 666.

All of these regulatory assertions had a colorable textual basis. And yet, in each case, given the various circumstances, “common sense as to the manner in which Congress [would have been] likely to delegate” such power to the agency at issue, Brown & Williamson, 529 U.S. at 133, made it very unlikely that Congress had actually done so. Extraordinary grants of regulatory authority are rarely accomplished through “modest words,” “vague terms,” or “subtle device[s].” Whitman, 531 U.S. at 468. Nor does Congress typically use oblique or elliptical language to empower an agency to make a “radical or fundamental change” to a statutory scheme. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 229 (1994). Agencies have only those powers given to them by Congress, and “enabling legislation” is generally not an “open book to which the agency [may] add pages and change the plot line.” E. Gellhorn & P. Verkuil, Controlling Chevron Based Delegations, 20 Cardozo L. Rev. 989, 1011 (1999). We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies.” United States Telecom Assn. v. FCC, 855 F.3d 381, 419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc).

Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. Utility Air, 573 U.S. at 324. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims. Ibid.

The dissent criticizes us for “announc[ing] the arrival” of this major questions doctrine, and argues that each of the decisions just cited simply followed our “ordinary method” of “normal statutory interpretation,” (opinion of KAGAN, J.). But in what the dissent calls the “key case” in this area, Brown & Williamson, , the Court could not have been clearer: “In extraordinary cases ... there may be reason to hesitate” before accepting a reading of a statute that would, under more “ordinary” circumstances, be upheld. 529 U.S. at 159. Or, as we put it more recently, we “typically greet” assertions of “extravagant statutory power over the national economy” with “skepticism.” Utility Air, 573 U.S. at 324. The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of “clear congressional authorization,” ibid.—confirms that the approach under the major questions doctrine is distinct.

As for the major questions doctrine “label[ ],” it took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we. See Utility Air, 573 U.S. at 324 (citing Brown & Williamson and MCI); King v. Burwell, 576 U.S. 473, 486 (2015) (citing Utility Air, Brown & Williamson, and Gonzales).

B

Under our precedents, this is a major questions case. In arguing that Section 111(d) empowers it to substantially restructure the American energy market, EPA “claim[ed] to discover in a long-extant statute an unheralded power” representing a “transformative expansion in [its] regulatory authority.” Utility Air, 573 U.S. at 324. It located that newfound power in the vague language of an “ancillary provision[ ]” of the Act, Whitman, 531 U.S. at 468, one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency's discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. Brown & Williamson, 529 U.S. at 159–160; Gonzales, 546 U.S. at 267–268; Alabama Assn., 141 S. Ct., at 2486–2487, 2490. Given these circumstances, there is every reason to “hesitate before concluding that Congress” meant to confer on EPA the authority it claims under Section 111(d). Brown & Williamson, 529 U.S. at 159–160.

Prior to 2015, EPA had always set emissions limits under Section 111 based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly. See, e.g., 41 Fed. Reg. 48706 (requiring “degree of control achievable through the application of fiber mist eliminators”). It had never devised a cap by looking to a “system” that would reduce pollution simply by “shifting” polluting activity “from dirtier to cleaner sources.” 80 Fed. Reg. 64726; see id., at 64738 (“[O]ur traditional interpretation ... has allowed regulated entities to produce as much of a particular good as they desire provided that they do so through an appropriately clean (or low-emitting) process.”). And as Justice Frankfurter has noted, “just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.” FTC v. Bunte Brothers, Inc., 312 U.S. 349, 352 (1941).

The Government quibbles with this description of the history of Section 111(d), pointing to one rule that it says relied upon a cap-and-trade mechanism to reduce emissions. See 70 Fed. Reg. 28616 (2005) (Mercury Rule). The legality of that choice was controversial at the time and was never addressed by a court. See New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (vacating on other grounds). Even assuming the Rule was valid, though, it still does not help the Government. In that regulation, EPA set the actual “emission cap”—i.e., the limit on emissions that sources would be required to meet—“based on the level of [mercury] emissions reductions that w[ould] be achievable by” the use of “technologies [that could be] installed and operational on a nationwide basis” in the relevant timeframe—namely, wet scrubbers. 70 Fed. Reg. 28620–28621. In other words, EPA set the cap based on the application of particular controls, and regulated sources could have complied by installing them. By contrast, and by design, there is no control a coal plant operator can deploy to attain the emissions limits established by the Clean Power Plan. The Mercury Rule, therefore, is no precedent for the Clean Power Plan. To the contrary, it was one more entry in an unbroken list of prior Section 111 rules that devised the enforceable emissions limit by determining the best control mechanisms available for the source.

This consistent understanding of “system[s] of emission reduction” tracked the seemingly universal view, as stated by EPA in its inaugural Section 111(d) rulemaking, that “Congress intended a technology-based approach” to regulation in that Section. 40 Fed. Reg. 53343 (1975); see id., at 53341 (“degree of control to be reflected in EPA's emission guidelines” will be based on “application of best adequately demonstrated control technology”). A technology-based standard, recall, is one that focuses on improving the emissions performance of individual sources. EPA “commonly referred to” the “level of control” required as a “best demonstrated technology (BDT)” standard, 73 Fed. Reg. 34073, and consistently applied it as such. E.g., 61 Fed. Reg. 9907 (declaring “BDT” to be “a well-designed and well-operated gas collection system and ... a control device capable of reducing [harmful gases] in the collected gas by 98 weight-percent.”).

Indeed, EPA nodded to this history in the Clean Power Plan itself, describing the sort of “systems of emission reduction” it had always before selected—“efficiency improvements, fuel-switching,” and “add-on controls”—as “more traditional air pollution control measures.” 80 Fed. Reg. 64784. The Agency noted that it had “considered” such measures as potential systems of emission reduction for carbon dioxide, ibid., including a measure it ultimately adopted as a “component” of the BSER, namely, heat rate improvements. Id., at 64727.

But, the Agency explained, in order to “control[ ] CO2 from affected [plants] at levels ... necessary to mitigate the dangers presented by climate change,” it could not base the emissions limit on “measures that improve efficiency at the power plants.” Id., at 64728. “The quantity of emissions reductions resulting from the application of these measures” would have been “too small.” Id., at 64727. Instead, to attain the necessary “critical CO2 reductions,” EPA adopted what it called a “broader, forward-thinking approach to the design” of Section 111 regulations. Id., at 64703. Rather than focus on improving the performance of individual sources, it would “improve the overall power system by lowering the carbon intensity of power generation.” Ibid. And it would do that by forcing a shift throughout the power grid from one type of energy source to another. In the words of the then-EPA Administrator, the rule was “not about pollution control” so much as it was “an investment opportunity” for States, especially “investments in renewables and clean energy.” Oversight Hearing on EPA's Proposed Carbon Pollution Standards for Existing Power Plants before the Senate Committee on Environment and Public Works, 113th Cong., 2d Sess., p. 33 (2014).

This view of EPA's authority was not only unprecedented; it also effected a “fundamental revision of the statute, changing it from [one sort of] scheme of ... regulation” into an entirely different kind. MCI, 512 U.S. at 231. Under the Agency's prior view of Section 111, its role was limited to ensuring the efficient pollution performance of each individual regulated source. Under that paradigm, if a source was already operating at that level, there was nothing more for EPA to do. Under its newly “discover[ed]” authority, Utility Air, 573 U.S. at 324, 134 S. Ct. 2427, however, EPA can demand much greater reductions in emissions based on a very different kind of policy judgment: that it would be “best” if coal made up a much smaller share of national electricity generation. And on this view of EPA's authority, it could go further, perhaps forcing coal plants to “shift” away virtually all of their generation—i.e., to cease making power altogether.

The Government attempts to downplay the magnitude of this “unprecedented power over American industry.” Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U.S. 607, 645 (1980) (plurality opinion). The amount of generation shifting ordered, it argues, must be “adequately demonstrated” and “best” in light of the statutory factors of “cost,” “nonair quality health and environmental impact,” and “energy requirements.” 42 U. S. C. § 7411(a)(1). EPA therefore must limit the magnitude of generation shift it demands to a level that will not be “exorbitantly costly” or “threaten the reliability of the grid.” Brief for Federal Respondents 42.

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

There is little reason to think Congress assigned such decisions to the Agency. For one thing, as EPA itself admitted when requesting special funding, “Understand[ing] and project[ing] system-wide ... trends in areas such as electricity transmission, distribution, and storage” requires “technical and policy expertise not traditionally needed in EPA regulatory development.” EPA, Fiscal Year 2016: Justification of Appropriation Estimates for the Committee on Appropriations 213 (2015). “When [an] agency has no comparative expertise” in making certain policy judgments, we have said, “Congress presumably would not” task it with doing so. Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019).

We also find it “highly unlikely that Congress would leave” to “agency discretion” the decision of how much coal- based generation there should be over the coming decades. MCI, 512 U.S. at 231; see also Brown & Williamson, 529 U.S. at 160 (“We are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”). The basic and consequential tradeoffs involved in such a choice are ones that Congress would likely have intended for itself. See W. Eskridge, Interpreting Law: A Primer on How To Read Statutes and the Constitution 288 (2016) (“Even if Congress has delegated an agency general rulemaking or adjudicatory power, judges presume that Congress does not delegate its authority to settle or amend major social and economic policy decisions.”). Congress certainly has not conferred a like authority upon EPA anywhere else in the Clean Air Act. The last place one would expect to find it is in the previously little-used backwater of Section 111(d).

Finally, we cannot ignore that the regulatory writ EPA newly uncovered conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions “had become well known, Congress considered and rejected” multiple times. Brown & Williamson, 529 U.S. at 144; see also Alabama Assn., 141 S. Ct., at 2486–2487; Bunte Brothers, 312 U.S. at 352 (lack of authority not previously exercised “reinforced by [agency's] unsuccessful attempt ... to secure from Congress an express grant of [the challenged] authority”). At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon. See 80 Fed. Reg. 64734 (“Emissions trading is ... an integral part of our BSER analysis.”). Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program. See, e.g., American Clean Energy and Security Act of 2009, H. R. 2454, 111th Cong., 1st Sess.; Clean Energy Jobs and American Power Act, S. 1733, 111th Cong., 1st Sess. (2009). It has also declined to enact similar measures, such as a carbon tax. See, e.g., Climate Protection Act of 2013, S. 332, 113th Cong., 1st Sess.; Save our Climate Act of 2011, H. R. 3242, 112th Cong., 1st Sess. “The importance of the issue,” along with the fact that the same basic scheme EPA adopted “has been the subject of an earnest and profound debate across the country, ... makes the oblique form of the claimed delegation all the more suspect.” Gonzales, 546 U.S. at 267–268, 126 S. Ct. 904 (internal quotation marks omitted).

C

Given these circumstances, our precedent counsels skepticism toward EPA's claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach. To overcome that skepticism, the Government must—under the major questions doctrine—point to “clear congressional authorization” to regulate in that manner. Utility Air, 573 U.S. at 324.

All the Government can offer, however, is the Agency's authority to establish emissions caps at a level reflecting “the application of the best system of emission reduction ... adequately demonstrated.” 42 U. S. C. § 7411(a)(1). As a matter of “definitional possibilities,” FCC v. AT&T Inc., 562 U.S. 397, 407, (2011), generation shifting can be described as a “system”—“an aggregation or assemblage of objects united by some form of regular interaction,” Brief for Federal Respondents 31—capable of reducing emissions. But of course almost anything could constitute such a “system”; shorn of all context, the word is an empty vessel. Such a vague statutory grant is not close to the sort of clear authorization required by our precedents.

* * *

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

It is so ordered.

JUSTICE GORSUCH, with whom JUSTICE ALITO joins, concurring. . . .

I

… [T]o ensure that acts of Congress are applied in accordance with the Constitution in the cases that come before us …, courts have developed certain “clear-statement” rules.  These rules assume that, absent a clear statement otherwise, Congress means for its laws to operate in congruence with the Constitution rather than test its bounds. …

… Article I’s Vesting Clause has its own [clear statement rule]:  the major questions doctrine.  Some version of this clear-statement rule can be traced to at least 1897, when this Court confronted a case involving the Interstate Commerce Commission … The ICC argued that Congress had endowed it with the power to set carriage prices for railroads.  See ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 499 (1897). The Court deemed that claimed authority “a power of supreme delicacy and importance,” given the role railroads then played in the Nation’s life. Id., at 505. Therefore, the Court explained, a special rule applied:

“That Congress has transferred such a power to any administrative body is not to be presumed or implied from any doubtful and uncertain language.  The words and phrases efficacious to make such a delegation of power are well understood, and have been frequently used, and if Congress had intended to grant such a power to the [agency], it cannot be doubted that it would have used language open to no misconstruction, but clear and direct.” Ibid. (emphasis added).

With the explosive growth of the administrative state since 1970, the major questions doctrine soon took on special importance.2 In 1980, this Court held it “unreasonable to assume” that Congress gave an agency “unprecedented power[s]” in the “absence of a clear [legislative] mandate.” Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 645 (plurality opinion).  In the years that followed, the Court routinely enforced “the non-delegation doctrine” through “the interpretation of statutory texts, and, more particularly, [by] giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.”  Mistretta v. United States, 488 U. S. 361, 373, n. 7 (1989).  In fact, this Court applied the major questions doctrine in “all corners of the administrative state,” whether the issue at hand involved an agency’s asserted power to regulate tobacco products, ban drugs used in physician-assisted suicide, extend Clean Air Act regulations to private homes, impose an eviction moratorium, or enforce a vaccine mandate the constitutional lines at stake here are surely no less important than those this Court has long held sufficient to justify parallel clear-statement rules.

At stake is not just a question of retroactive liability or sovereign immunity, but basic questions about self-government, equality, fair notice, federalism, and the separation of powers. The major questions doctrine seeks to protect against “unintentional, oblique, or otherwise unlikely” intrusions on these interests.  NFIB v. OSHA, 595 U. S., at ___ (GORSUCH, J., concurring) (slip op., at 5).  The doctrine does so by ensuring that, when agencies seek to resolve major questions, they at least act with clear congressional authorization and do not “exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond” those the people’s representatives actually conferred on them….

II

… Our cases supply a good deal of guidance about when an agency action involves a major question for which clear congressional authority is required.

First, this Court has indicated that the doctrine applies when an agency claims the power to resolve a matter of great “political significance,” NFIB v. OSHA, 595 U. S., at ___ (slip op., at 6) …

Second, this Court has said that an agency must point to clear congressional authorization when it seeks to regulate “‘a significant portion of the American economy,’” ante, at 18 (quoting Utility Air, 573 U. S., at 324), or require “billions of dollars in spending” by private persons or entities, King v. Burwell, 576 U. S. 473, 485 (2015). …

Third, this Court has said that the major questions doctrine may apply when an agency seeks to “intrud[e] into an area that is the particular domain of state law.”  Ibid. …

III

In places, the dissent seems to suggest that we should not be unduly “‘concerned’” with the Constitution’s assignment of the legislative power to Congress. Echoing Woodrow Wilson, the dissent seems to think “a modern Nation” cannot afford such sentiments. But recently, our dissenting colleagues acknowledged that the Constitution assigns “all legislative Powers” to Congress and “bar[s their] further delegation.” Gundy, 588 U. S., at ___ (plurality opinion of KAGAN, J.) (slip op., at 4). To be sure, in that case we disagreed about the exact nature of the “nondelegation inquiry” courts must employ to vindicate the Constitution. But like Chief Justice Marshall, we all recognized that the Constitution does impose some limits on the delegation of legislative power. And while we all agree that administrative agencies have important roles to play in a modern nation, surely none of us wishes to abandon our Republic’s promise that the people and their representatives should have a meaningful say in the laws that govern them. . . .

If that’s not the problem, perhaps the dissent means to suggest that the major questions doctrine does not belong on the list of our clear-statement rules. At times, the dissent appears to dismiss the doctrine as a “get-out-of-text free car[d].” The dissent even seems to suggest that the doctrine could threaten “the safety and efficacy of medications” or lead to “the routine adulteration of food.” But then again, the dissent also acknowledges that the major questions doctrine should “sensibl[y]” apply in at least some situations. The dissent even favorably highlights one application of the doctrine that our colleagues criticized less than a year ago. See post, at 18 (citing Alabama Assn. of Realtors, 594 U. S. ___).  And, of course, our colleagues have joined other applications of the major questions doctrine in the past. See, e.g., King v. Burwell, 576 U. S., at 485–486 …  Nor does the dissent really seem to dispute that a major question is at stake in this case. As the dissent observes, the agency’s challenged action before us concerns one of “the greatest . . . challenge[s] of our time.” If this case does not implicate a “question of deep economic and political significance,” King, 576 U. S., at 486, it is unclear what might.

In the end, our disagreement really seems to center on a difference of opinion about whether the statute at issue here clearly authorizes the agency to adopt the CPP. …

Justice KAGAN, with whom Justice BREYER and Justice SOTOMAYOR join, dissenting,

Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time.” Massachusetts v. EPA, 549 U.S. 497, 505 (2007).

* * *

I

The Clean Air Act was major legislation, designed to deal with a major public policy issue. As Congress explained, its goal was to “speed up, expand, and intensify the war against air pollution” in all its forms. H. R. Rep. No. 91–1146, p. 1 (1970). Or as this Court similarly recognized, the Act was a “drastic remedy to what was perceived as a serious and otherwise uncheckable problem.” Union Elec. Co. v. EPA, 427 U.S. 246, 256 (1976). The Act, as the majority describes, established three major regulatory programs to control air pollution from stationary sources like power plants. The National Ambient Air Quality Standards (NAAQS) and Hazardous Air Pollutants (HAP) programs prescribe standards for specified pollutants, not including carbon dioxide. Section 111's New Source Performance Standards program provides an additional tool for regulating emissions from categories of stationary sources deemed to contribute significantly to pollution. As applied to existing (not new) sources, the program mandates—via Section 111(d)—that EPA set emissions levels for pollutants not covered by the NAAQS or HAP programs, including carbon dioxide.

Section 111(d) thus ensures that EPA regulates existing power plants’ emissions of all pollutants. When the pollutant at issue falls within the NAAQS or HAP programs, EPA need do no more. But when the pollutant falls outside those programs, Section 111(d) requires EPA to set an emissions level for currently operating power plants (and other stationary sources). That means no pollutant from such a source can go unregulated: As the Senate Report explained, Section 111(d) guarantees that “there should be no gaps in control activities pertaining to stationary source emissions that pose any significant danger to public health or welfare.” S. Rep. No. 91–1196, p. 20 (1970). Reflecting that language, the majority calls Section 111(d) a “gap-filler.” Ante, at ––––. It might also be thought of as a backstop or catch-all provision, protecting against pollutants that the NAAQS and HAP programs let go by. But the section is not, as the majority further claims, an “ancillary provision” or a statutory “backwater.” That characterization is a non-sequitur. That something is a backstop does not make it a backwater. Even if they are needed only infrequently, , backstops can perform a critical function—and this one surely does. Again, Section 111(d) tells EPA that when a pollutant—like carbon dioxide—is not regulated through other programs, EPA must undertake a further regulatory effort to control that substance's emission from existing stationary sources. In that way, Section 111(d) operates to ensure that the Act achieves comprehensive pollution control.

Section 111 describes the prescribed regulatory effort in expansive terms. EPA must set for the relevant source (here, fossil-fuel-fired power plants) and the relevant pollutant (here, carbon dioxide) an emission level—more particularly, “the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the [EPA] Administrator determines has been adequately demonstrated.” § 7411(a)(1).

To take that language apart a bit, the provision instructs EPA to decide upon the “best system of emission reduction which ... has been adequately demonstrated.” The provision tells EPA, in making that determination, to take account of both costs and varied “nonair” impacts (on health, the environment, and the supply of energy). And the provision finally directs EPA to set the particular emissions limit achievable through use of the demonstrated “best system.” Taken as a whole, the section provides regulatory flexibility and discretion. It imposes, to be sure, meaningful constraints: Take into account costs and nonair impacts, and make sure the best system has a proven track record. But the core command—go find the best system of emission reduction—gives broad authority to EPA.

If that flexibility is not apparent on the provision's face, consider some dictionary definitions—supposedly a staple of this Court's supposedly textualist method of reading statutes. A “system” is “a complex unity formed of many often diverse parts subject to a common plan or serving a common purpose.” Webster's Third New International Dictionary 2322 (1971). Or again: a “system” is “[a]n organized and coordinated method; a procedure.” American Heritage Dictionary 1768 (5th ed. 2018). The majority complains that a similar definition—cited to the Solicitor General's brief but originally from another dictionary—is just too darn broad. see Brief for United States 31 (quoting Webster's New International Dictionary 2562 (2d ed. 1959)). “[A]lmost anything” capable of reducing emissions, the majority says, “could constitute such a ‘system’ ” of emission reduction. But that is rather the point. Congress used an obviously broad word (though surrounding it with constraints, see supra, at ––––) to give EPA lots of latitude in deciding how to set emissions limits. And contra the majority, a broad term is not the same thing as a “vague” one. A broad term is comprehensive, extensive, wide-ranging; a “vague” term is unclear, ambiguous, hazy. (Once again, dictionaries would tell the tale.) So EPA was quite right in stating in the Clean Power Plan that the “[p]lain meaning” of the term “system” in Section 111 refers to “a set of measures that work together to reduce emissions.” 80 Fed. Reg. 64762. Another of this Court's opinions, involving a matter other than the bogeyman of environmental regulation, might have stopped there.

For generation shifting fits comfortably within the conventional meaning of a “system of emission reduction.” Consider one of the most common mechanisms of generation shifting: the use of a cap-and-trade scheme. Here is how the majority describes cap and trade: “Under such a scheme, sources that receive a reduction in their emissions can sell a credit representing the value of that reduction to others, who are able to count it toward their own applicable emissions caps.” Does that sound like a “system” to you? It does to me too. And it also has to this Court. In the past, we have explained that “[t]his type of ‘cap-and-trade’ system cuts costs while still reducing pollution to target levels.” EPA v. EME Homer City Generation, L. P., 572 U.S. 489, 503, n. 10 (2014). So what does the majority mean when it says that “[a]s a matter of definitional possibilities, generation shifting can be described as a ‘system’ ”? Ante, at –––– (citation and some internal quotation marks omitted). Rarely has a statutory term so clearly applied.

Other statutory provisions confirm the point. The Clean Air Act's acid rain provision, for example, describes a cap-and-trade program as an “emission allocation and transfer system.” § 7651(b) (emphasis added). So a “system,” according to the statute's own usage, includes the kind of cap-and-trade mechanism that the Clean Power Plan relied on. And in a somewhat different way, the NAAQS provision shows that Section 111 encompasses such a regulatory technique. Under that provision, cap-and-trade schemes qualify as “control measures, means, or techniques” that state plans may use to reduce emissions. § 7410(a)(2)(A). That language, of course, does not use the word “system.” But in specifying that cap and trade is allowable under the NAAQS program, the provision supports the same conclusion here—because Section 111 directs EPA to use “a procedure similar to that provided by [the NAAQS].” § 7411(d)(1). The majority discounts the relevance of both those provisions on the ground that they contemplate trading systems only “as a means of complying with an already established emissions limit.” Ante, at ––––, 134 S. Ct. 1584 (emphasis in original). That is a distinction, to be sure. But to begin, it is far less of one than the majority thinks: In arguing that EPA's claim of authority here would allow it to take the emissions limit as low as it wants, the majority ignores the varied constraints surrounding the “best system” language. And still more important for interpretive purposes, the distinction appears only in the majority's opinion, not in any statutory language. That text, to the contrary, says to EPA: Do as you would do under the NAAQS and Acid Rain programs—go ahead and use cap and trade.

There is also a flipside point: Congress declined to include in Section 111 the restrictions on EPA's authority contained in other Clean Air Act provisions. Most relevant here, quite a number of statutory sections confine EPA's emissions-reduction efforts to technological controls—essentially, equipment or processes that can be put into place at a particular facility. See134 S. Ct. at 1584 (describing those controls). So, for example, one provision tells EPA to set standards “reflect[ing] the greatest degree of emission reduction achievable through the application of technology.” § 7521(a)(3)(A)(i). Others direct the use of the “best available retrofit technology,” or the “best available control technology,” or the “maximum achievable control technology.” §§ 7491(b)(2)(A), (g)(2), 7475(a)(4), 7479(3), 7412(g)(2). There are still more. See, e.g., §§ 7411(h), 7511a(c)(7), 7651f(b)(2). None of those provisions would allow EPA to set emissions limits based on generation shifting, as the Agency acknowledges. See Brief for United States 32–33. But nothing like the language of those provisions is included in Section 111. That matters under normal rules of statutory interpretation. As Justice Scalia once wrote for the Court: “We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.” Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 341 (2005).

Statutory history serves only to pile on: It shows that Congress has specifically declined to restrict EPA to technology-based controls in its regulation of existing stationary sources. The key moment came in 1977, when Congress amended Section 111 to distinguish between new sources and existing ones. For new sources, EPA could select only the “best technological system of continuous emission reduction.” Clean Air Act Amendments, § 109(c)(1)(A), 91 Stat. 700 (emphasis added). But for existing sources, the word “technological” was struck out: EPA could select the “best system of continuous emission reduction.” Ibid. The House Report emphasized Congress's deliberate choice: Whereas the standards set for new sources were to be based on “the best technological” controls, the “standards adopted for existing sources” were “to be based on available means of emission control (not necessarily technological).” H. R. Rep. No. 95–564, p. 129 (1977). The Report did not further explain the distinction. But presumably Congress gave EPA more flexibility over existing plants because imposing technological controls on old facilities is often not cost-effective. Thirteen years later, Congress followed up by deleting from Section 111 the technological limitation applying to new facilities. See Clean Air Act Amendments of 1990, § 403(a), 104 Stat. 2631. Once again, then, Congress faced a choice: confine EPA to technological controls, or not. And replicating its earlier action for existing sources, Congress chose not.

The majority breezes past that congressional choice on the ground that today's opinion does not resolve whether EPA can regulate in some non-technological ways; instead, the opinion says only that the Clean Power Plan goes too far. That is a puzzling point. As an initial matter, it re-characterizes what this case has always been about. The Trump administration repealed the Clean Power Plan for one central reason: because (in its view) Section 111 confines EPA to facility-specific, technological measures. See 84 Fed. Reg. 32523–32529. In reviewing that repeal, the court below thus addressed that limit alone. See American Lung Assn. v. EPA, 985 F.3d 914, 944 (D.C. Cir. 2021). So add to the oddity of the Court's declaring a defunct regulation unlawful, the irregularity of its suggesting some kind of non-technological limit that no one (not EPA, not the parties, not the court below) has ever considered. More important here, both the nature and the statutory basis of that limit are left a mystery. If the majority is not distinguishing between technological controls and all others, what is it doing—and how far does its opinion constrain EPA? The majority makes no effort to say. And because that is so, the majority cannot even attempt to ground its limit in the statutory language. I've just shown that restricting EPA to technological controls is inconsistent with Section 111, especially when read in conjunction with other statutory provisions. And the majority provides no reason to think that its (possibly) different limit fares any better. Section 111 does not impose any constraints—technological or otherwise—on EPA's authority to regulate stationary sources (except for those stated, like cost). In somehow (and to some extent) saying otherwise, the majority flouts the statutory text.

“Congress,” this Court has said, “knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.” Arlington v. FCC, 569 U.S. 290, 296 (2013). In Section 111, Congress spoke in capacious terms. It knew that “without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete.” Massachusetts, 549 U.S. at 532. So the provision enables EPA to base emissions limits for existing stationary sources on the “best system.” That system may be technological in nature; it may be whatever else the majority has in mind; or, most important here, it may be generation shifting. The statute does not care. And when Congress uses “expansive language” to authorize agency action, courts generally may not “impos[e] limits on [the] agency's discretion.” Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2381 (2020). That constraint on judicial authority—that insistence on judicial modesty—should resolve this case.

II

The majority thinks not, contending that in “certain extraordinary cases”—of which this is one—courts should start off with “skepticism” that a broad delegation authorizes agency action. The majority labels that view the “major questions doctrine,” and claims to find support for it in our caselaw. But the relevant decisions do normal statutory interpretation: In them, the Court simply insisted that the text of a broad delegation, like any other statute, should be read in context, and with a modicum of common sense. Using that ordinary method, the decisions struck down agency actions (even though they plausibly fit within a delegation's terms) for two principal reasons. First, an agency was operating far outside its traditional lane, so that it had no viable claim of expertise or experience. And second, the action, if allowed, would have conflicted with, or even wreaked havoc on, Congress's broader design. In short, the assertion of delegated power was a misfit for both the agency and the statutory scheme. But that is not true here. The Clean Power Plan falls within EPA's wheelhouse, and it fits perfectly—as I've just shown—with all the Clean Air Act's provisions. That the Plan addresses major issues of public policy does not upend the analysis. Congress wanted EPA to do just that. Section 111 entrusts important matters to EPA in the expectation that the Agency will use that authority to combat pollution—and that courts will not interfere.

A

“[T]he words of a statute,” as the majority states, “must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000); We do not assess the meaning of a single word, phrase, or provision in isolation; we also consider the overall statutory design. And that is just as true of statutes broadly delegating power to agencies as of any other kind. In deciding on the scope of such a delegation, courts must assess how an agency action claimed to fall within the provision fits with other aspects of a statutory plan.

So too, a court “must be guided to a degree by common sense as to the manner in which Congress is likely to delegate.” Brown & Williamson, 529 U.S. at 133. Assume that a policy decision, like this one, is a matter of significant “economic and political magnitude.” Ibid. We know that Congress delegates such decisions to agencies all the time—and often via broadly framed provisions like Section 111. But Congress does so in a sensible way. To decide whether an agency action goes beyond what Congress wanted, courts must assess (among other potentially relevant factors) the nature of the regulation, the nature of the agency, and the relationship of the two to each other.  . . .  In particular, we have understood, Congress does not usually grant agencies the authority to decide significant issues on which they have no particular expertise. So when there is a mismatch between the agency's usual portfolio and a given assertion of power, courts have reason to question whether Congress intended a delegation to go so far.

The majority today goes beyond those sensible principles. It announces the arrival of the “major questions doctrine,” which replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules. Apparently, there is now a two-step inquiry. First, a court must decide, by looking at some panoply of factors, whether agency action presents an “extraordinary case[ ].” If it does, the agency “must point to clear congressional authorization for the power it claims,” someplace over and above the normal statutory basis we require. The result is statutory interpretation of an unusual kind. It is not until page 28 of a 31-page opinion that the majority begins to seriously discuss the meaning of Section 111. And even then, it does not address straight-up what should be the question: Does the text of that provision, when read in context and with a common-sense awareness of how Congress delegates, authorize the agency action here?

The majority claims it is just following precedent, but that is not so. The Court has never even used the term “major questions doctrine” before. And in the relevant cases, the Court has done statutory construction of a familiar sort. It has looked to the text of a delegation. It has addressed how an agency's view of that text works—or fails to do so—in the context of a broader statutory scheme. And it has asked, in a common-sensical (or call it purposive) vein, about what Congress would have made of the agency's view—otherwise said, whether Congress would naturally have delegated authority over some important question to the agency, given its expertise and experience. In short, in assessing the scope of a delegation, the Court has considered—without multiple steps, triggers, or special presumptions—the fit between the power claimed, the agency claiming it, and the broader statutory design.

The majority's effort to find support in Brown & Williamson for its interpretive approach fails. It may be helpful here to quote the full sentence that the majority quotes half of. “In extraordinary cases,” the Court stated, “there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” 529 U.S. at 159. For anyone familiar with this Court's Chevron doctrine, that language will ring a bell. The Court was saying only—and it was elsewhere explicit on this point—that there was reason to hesitate before giving FDA's position Chevron deference. See id., at 132–133, 159–161. And what was that reason? The Court went on to explain that it would not defer to FDA because it read the relevant statutory provisions as negating the agency's claimed authority. See id., at 160 (“[W]e are obliged to defer not to the agency's expansive construction of the statute, but to Congress’ consistent judgment to deny the FDA this power”); id., at 133 (finding at Chevron’s first step that “Congress has directly spoken to the issue here and precluded the FDA's” asserted power). In reaching that conclusion, the Court relied (as I've just explained) not on any special “clear authorization” demand, but on normal principles of statutory interpretation: look at the text, view it in context, and use what the Court called some “common sense” about how Congress delegates. Ibid. That is how courts are to decide, in the majority's language, whether an agency has asserted a “highly consequential power beyond what Congress could reasonably be understood to have granted.”

The Court has applied the same kind of analysis in subsequent cases—holding in each that an agency exceeded the scope of a broadly framed delegation when it operated outside the sphere of its expertise, in a way that warped the statutory text or structure. In Gonzales v. Oregon, 546 U.S. 243 (2006), we rejected the Attorney General's assertion of authority (under a broad “public interest” standard) to rescind doctors’ registrations for facilitating assisted suicide, even in States where doing so was legal. See id., at 243, 248–249, 261–275. We doubted Congress would have delegated such a “quintessentially medical judgment[ ]” to “an executive official who lacks medical expertise.” Id., at 266–267. And we pointed to statutory provisions in which Congress—in opposition to the claimed power—had “painstakingly described the Attorney General's limited authority” to deregister physicians. Id., at 262.

Later, in Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014), the Court relied on similar reasoning to reject EPA's efforts to regulate “millions of small” and previously unregulated sources of emissions—“including retail stores, offices, apartment buildings, shopping centers, schools, and churches.” Id., at 328. Key to that decision was the Court's view that reading the delegation so expansively would be “inconsistent with” the statute's broader “structure and design.” Id., at 321. The Court explained that allowing the agency action to proceed would necessitate the “rewriting” of other “unambiguous statutory terms”—indeed, of “precise numerical thresholds.” Id., at 321, 325–326. (In quoting one cryptic sentence of Utility Air as supporting its new approach, see ante, at ––––, the majority ignores the nine preceding pages of analysis of the statute's text and context, see 573 U.S. at 315–324.)

And last Term, the Court concluded that the Centers for Disease Control and Prevention (CDC) lacked the power to impose a nationwide eviction moratorium. Alabama Assn. of Realtors v. Department of Health and Human Servs., 141 S. Ct. 2485, 2488–2490, 2490 (2021). The Court held that other statutory language made it a “stretch” to read the relied-on delegation as covering the CDC's action. 141 S. Ct., at 2488. And the Court raised an eyebrow at the thought of the CDC “intrud[ing]” into “the landlord-tenant relationship”—a matter outside the CDC's usual “domain.” Ibid.

The eyebrow-raise is indeed a consistent presence in these cases, responding to something the Court found anomalous—looked at from Congress's point of view—in a particular agency's exercise of authority. In each case, the Court thought, the agency had strayed out of its lane, to an area where it had neither expertise nor experience. The Attorney General making healthcare policy, the regulator of pharmaceutical concerns deciding the fate of the tobacco industry, and so on. And in each case, the proof that the agency had roamed too far afield lay in the statutory scheme itself. The agency action collided with other statutory provisions; if the former were allowed, the latter could not mean what they said or could not work as intended. FDA having to declare tobacco “safe” to avoid shutting down an industry; or EPA having literally to change hard numbers contained in the Clean Air Act. There, according to the Court, the statutory framework was “not designed to grant” the authority claimed. Utility Air, 573 U.S. at 324. The agency's “singular” assertion of power “would render the statute unrecognizable to the Congress” that wrote it. Ibid. (internal quotation marks omitted).

* * *

III

Some years ago, I remarked that “[w]e're all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.8 Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence. See ante, at ––––, –––– – ––––; e.g., ante, at –––– – –––– (GORSUCH, J., concurring).

* * *

. . . Respectfully, I dissent.

In three high-profile, per curiam opinions over a six-month period from summer 2021 through winter 2022, the Supreme Court evaluated the scope of executive branch statutory authority to respond to the emergency conditions of the COVID-19 pandemic. In two of the three cases, the Court found that executive branch actors had exceeded their authority. None of the majority or dissenting justices in any of the three cases cited Chevron.

First, in August 2021, in a case considered on the Court’s emergency docket without oral argument, the Court concluded in a per curiam opinion that a tenant eviction moratorium first issued by the Trump Administration and continued by President Biden exceeded the authority of the Centers for Disease Control and Prevention (CDC). See Alabama Ass’n of Realtors v. Dep’t of Health & Human Services, 141 S. Ct. 2485 (2021). The CDC had been relying on a general emergency public health statute designed to stop the spread of disease, which was enacted in the 1940s but rarely used until the start of the COVID-19 pandemic. Section 361(a) of the Public Health Service Act authorizes the Surgeon General “to make and enforce such regulations as in his judgment are necessary to prevent the . . . spread of communicable diseases . . . from one State . . . into any other State or possession.” That regulatory authority has been delegated to the CDC Director, and the statute specifies that the authority extends to “such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles . . . and other measures, as in his judgment may be necessary.” 42 U.S.C. § 264(a); 42 CFR § 70.2 (2020). Executive officials concluded that an eviction moratorium would help stop the interstate spread of disease by eliminating the need for homeless tenants to move after eviction for failure to pay rent, and relied on the “other measures” language for authority to impose the moratorium. The Court rejected that assertion of authority by the CDC, finding that the statutorily authorized measures “directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.” 141 S. Ct. at 2488. The CDC moratorium would extend much further with a “markedly different” downstream impact on the spread of disease. Further, “[e]ven if the text were ambiguous, the sheer scope of the CDC’s claimed authority under 361(a) would counsel against the Government’s interpretation.” Id. at 2488-89. Echoing the language relied on the Court in West Virginia v. EPA to formalize the major questions doctrine, see supra, the Court explained that “[w]e expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Id. at 2489. The Court also found it meaningful that Congress had considered the moratorium and decided to extend it only temporarily, characterizing CDC’s administrative extension as an action decided to take “matters into its own hands.”    

Next, in January 2022 in a pair of opinions handed down the same day, the Court found in favor of the Health and Human Services Department’s use of Medicaid and Medicare funding to mandate vaccination of health care workers but against the Occupational Safety and Health Administration’s national workplace vaccination-or-test mandate. The Court had also heard arguments in both cases on the same day, during an oral argument session specially scheduled outside the normal January calendar to accommodate the emergency posture of the cases. In Biden v. Missouri, 142 S. Ct. 647 (2022), the Court found statutory authority for a Centers for Medicare and Medicaid Services’ (CMS) interim final rule mandating COVID-19 vaccination for staff of facilities participating in Medicaid and Medicare:

“[W]e agree with the Government that the Secretary's rule falls within the authorities that Congress has conferred upon him.

Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. § 1395x(e)(9). COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic. Id., at 61613.

The rule thus fits neatly within the language of the statute . . . [and] the longstanding practice of Health and Human Services. . . . [H]ealthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not simply sound accounting. Such requirements govern in detail, for instance, the amount of time after admission or surgery within which a hospital patient must be examined and by whom, 42 CFR § 482.22(c)(5), the procurement, transportation, and transplantation of human kidneys, livers, hearts, lungs, and pancreases, § 482.45, the tasks that may be delegated by a physician to a physician assistant or nurse practitioner, § 483.30(e), and, most pertinent here, the programs that hospitals must implement to govern the “surveillance, prevention, and control of . . . infectious diseases,” § 482.42.

Moreover, the Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves. See, e.g., §§ 482.42(c) (2)(iv) (requiring training of “hospital personnel and staff ” on “infection prevention and control guidelines”), 483.60(a)(1)(ii) (qualified dieticians must have completed at least 900 hours of supervised practice), 482.26(b)–(c) (specifying personnel authorized to use radiologic equipment). And the Secretary has always justified these sorts of requirements by citing his authorities to protect patient health and safety. See, e.g., §§ 482.1(a)(1)(ii), 483.1(a)(1)(ii), 416.1(a)(1). As these examples illustrate, the Secretary's role in administering Medicare and Medicaid goes far beyond that of a mere bookkeeper.

. . . Vaccination requirements are a common feature of the provision of healthcare in America . . . . We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.

142 S. Ct. 647 (2022). Justices Alito, Barrett, Gorsuch, and Thomas dissented in two opinions written by Justices Thomas and Alito.

In NFIB v. OSHA, 142 S. Ct. 661 (2022), in contrast, the Court with three justices dissenting, found that OSHA lacked authority to require vaccination or testing and masking for all employees in firms with greater than 100 employees:

The Secretary of Labor, acting through the Occupational Safety and Health Administration, recently enacted a vaccine mandate for much of the Nation's work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that covered workers receive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday. OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.

* * *

I

A

Congress enacted the Occupational Safety and Health Act in 1970. 84 Stat. 1590, 29 U.S.C. § 651 et seq. The Act created the Occupational Safety and Health Administration (OSHA), which is part of the Department of Labor and under the supervision of its Secretary. As its name suggests, OSHA is tasked with ensuring occupational safety—that is, “safe and healthful working conditions.” § 651(b). It does so by enforcing occupational safety and health standards promulgated by the Secretary. § 655(b). Such standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” § 652(8) (emphasis added). They must also be developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing. § 655(b).

The Act contains an exception to those ordinary notice-and-comment procedures for “emergency temporary standards.” § 655(c)(1). Such standards may “take immediate effect upon publication in the Federal Register.” Ibid. They are permissible, however, only in the narrowest of circumstances: the Secretary must show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.” Ibid. Prior to the emergence of COVID–19, the Secretary had used this power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full. See BST Holdings, L.L.C. v. Occupational Safety and Health Admin., 17 F.4th 604, 609 (5th Cir. 2021).

* * *

II

The Sixth Circuit concluded that a stay of the rule was not justified. We disagree.

A

Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F.4th at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam) (internal quotation marks omitted). There can be little doubt that OSHA's mandate qualifies as an exercise of such authority.

The question, then, is whether the Act plainly authorizes the Secretary's mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U.S.C. § 655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); § 655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace). Confirming the point, the Act's provisions typically speak to hazards that employees face at work. See, e.g., §§ 651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA's sphere of expertise.

The dissent protests that we are imposing “a limit found no place in the governing statute.” Post, at 673 (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.). Not so. It is the text of the agency's Organic Act that repeatedly makes clear that OSHA is charged with regulating “occupational” hazards and the safety and health of “employees.” See, e.g., 29 U.S.C. §§ 652(8), 654(a)(2), 655(b)–(c).

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” Response Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.  Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA's regulatory authority without clear congressional authorization.

The dissent contends that OSHA's mandate is comparable to a fire or sanitation regulation imposed by the agency. See post, at 673–674. But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.” In re MCP No. 165, 20 F.4th at 274 (Sutton, C. J., dissenting). Contrary to the dissent's contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.” Post, at 675.

That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee's job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA's indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U.S.C. § 655(b) (emphasis added).

In looking for legislative support for the vaccine mandate, the dissent turns to the American Rescue Plan Act of 2021, Pub. L. 117–2, 135 Stat. 4. See post, at 673–674. That legislation, signed into law on March 11, 2021, of course said nothing about OSHA's vaccine mandate, which was not announced until six months later. In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021. S. J. Res. 29, 117th Cong., 1st Sess. (2021).

It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This “lack of historical precedent,” coupled with the breadth of authority that the Secretary now claims, is a “telling indication” that the mandate extends beyond the agency’s legitimate reach. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 505 (2010) (internal quotation marks omitted).1

B

The equities do not justify withholding interim relief. We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. . . . For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. . . .

It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

* * *

Justice Gorsuch wrote an opinion joined by Justices Thomas and Alito concurring with the majority. Justices Breyer, Sotomayor, and Kagan dissented.

Does the Court’s failure to apply Chevron deference to any of these administrative determinations during a time of emergency when the government arguably needs to move most nimbly suggest that Chevron is dead in all but name? Or was the Court’s decision to ignore the Chevron framework more likely due to a conclusion that the COVID-19 regulations involved issues too significant for regulatory deference, in line with the subsequent “major questions” analysis in West Virginia v. EPA?  Note that the Court issued two decisions in 2022 involving technical Medicare reimbursement and payment formulas without mentioning Chevron even where the petitions for certiorari and review had heavily incorporated the doctrine?  See Becerra v. Empire Health Foundation, 142 S. Ct. 2354 (2022); Amer. Hospital Ass’n v. Becerra, 142 S. Ct. 1896 (2022) At a minimum, it appears that Chevron has entered a period of desuetude, at least at the Supreme Court.