United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2000 Decided November 14, 2000
No. 99-5390
American Bus Association,
Appellant
v.
Rodney E. Slater, Secretary of Transportation,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 98cv02351)
Richard A. Allen argued the cause for appellant. With
him on the briefs were Richard P. Schweitzer, Craig M.
Cibak and Jol A. Silversmith.
Sandra Wien Simon, Attorney, U.S. Department of Jus-
tice, argued the cause for appellee. With her on the brief
were David W. Ogden, Acting Assistant Attorney General,
Marleigh D. Dover, Attorney, Nancy E. McFadden, General
Counsel, U.S. Department of Transportation, and Paul M.
Geier, Assistant General Counsel.
Before: Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Concurring opinion filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: American Bus Association
("ABA") appeals from a District Court judgment upholding a
Department of Transportation ("DOT") rule that implements
portions of the Americans with Disabilities Act ("ADA" or
"Act"), 42 U.S.C. s 12101 et seq. (1994). Appellant challenges
those portions of the rule that authorize the imposition of
money damages against bus companies that fail to comply
with the ADA. Appellant claims that the remedies enumerat-
ed in the ADA are exclusive, and may not be supplemented
with a money-damages scheme. It also alleges that DOT
violated the Administrative Procedure Act ("APA"), 5 U.S.C.
s 551 et seq. (1994), because it provided neither notice that it
was considering authorizing monetary relief nor opportunity
for the public to comment.
We conclude that DOT lacked the statutory authority to
impose money damages on bus companies. Congress has
given the agency no authority to establish remedies in addi-
tion to those that are specified in the ADA. Because we hold
that DOT exceeded the scope of its authority, we need not
reach Appellant's notice-and-comment claim.
I. BACKGROUND
A. Factual background
Title III of the ADA generally requires operators of public
accommodations, including common carriers, to make their
services accessible to disabled persons. See 42 U.S.C.
ss 12181-88 (1994). Toward that end, the ADA instructs the
Secretary of Transportation--which post is presently held by
Appellee Rodney E. Slater--to promulgate rules concerning
the accessibility of over-the-road buses ("OTRBs"), which are
large motorcoaches designed for travel between cities. See
id. s 12186(a). On September 6, 1991, DOT issued a set of
interim rules governing OTRB accessibility. These rules
required bus companies to provide boarding assistance to
disabled passengers, and permitted operators to require pas-
sengers who needed such assistance to provide them with 48
hours of advance notice. DOT did not, at the time, oblige
operators to equip their OTRBs with wheelchair lifts, nor did
it require operators to pay money damages to disabled per-
sons whose travel plans were frustrated. See Transportation
for Individuals with Disabilities, 56 Fed. Reg. 45,584, 45,640
(1991).
In 1993, DOT issued an advance notice of proposed rule-
making in which the agency identified the OTRB-accessibility
issues it hoped to resolve. Among DOT's concerns were
whether all OTRB routes should have accessibility require-
ments, and whether disabled passengers' needs could be
accommodated by an "on-call" system under which they could
request an accessible OTRB in advance. See Transportation
for Individuals with Disabilities; Accessibility of Over-the-
Road Buses, 58 Fed. Reg. 52,735, 52,738-39 (1993). The
public more than complied with the agency's request for
comments: hundreds were submitted, mostly from disabled
persons' advocacy groups and organizations representing the
bus industry.
On March 25, 1998, DOT published a notice of proposed
rulemaking ("NPRM") that proposed requiring all fixed-route
OTRBs (regularly scheduled buses, such as Greyhound) to
install wheelchair lifts, and obliging charter/tour OTRBs to
provide lift-equipped buses to passengers who request them
48 hours in advance. The NPRM made no mention of the
possibility of money damages, or any other scheme to com-
pensate disabled passengers whose travel plans were frustrat-
ed by an inaccessible OTRB. See Transportation for Individ-
uals with Disabilities, 63 Fed. Reg. 14,560-71 (1998).
After considering the over 400 comments submitted in
response to its NPRM, the agency issued its final rule on
September 28, 1998. Several commentators had urged DOT
to promulgate an "on-call," or reservation-based, rule, under
which all OTRB operators (and not just charter/tour opera-
tors) would be required to provide wheelchair-accessible bus-
es to passengers who gave 48-hours advance notice of their
need. See, e.g., Comments of Coach USA, Inc. at 19-21. The
agency rejected that alternative. Its final rule essentially
imposed the obligations proposed in the NPRM--requiring
fixed-route OTRB operators to equip their entire fleets with
wheelchair lifts--with the additional requirement that bus
companies pay "compensation" to disabled passengers when
they fail to provide them with accessible service. A bus
operator will be assessed a $300 fine for its first violation,
$400 for its second, and so on in $100 increments up to $700
for its fifth and all subsequent infractions. See Transporta-
tion for Individuals with Disabilities, 63 Fed. Reg. 51,670,
51,692 (1998) (codified at 49 C.F.R. s 37.199 (2000)).
B. The District Court decision
Two days after the final rule was promulgated, September
30, 1998, Appellant American Bus Association filed a com-
plaint in the United States District Court for the District of
Columbia. ABA, an organization representing the bus indus-
try, alleged, among other things, that DOT had no statutory
authority to implement the money-damages scheme, that the
agency had not provided adequate notice that it intended to
adopt a remedies provision, and that the rule violated the
National Environmental Policy Act, 42 U.S.C. s 4321 et seq.
(1994).
On the parties' cross-motions for summary judgment, the
District Court rejected each of ABA's contentions. The court
found that the agency had provided adequate notice that it
was considering a money-damages provision. While the
NPRM may not expressly have mentioned the possibility of
money damages, the remedies scheme was the "logical out-
growth" of the agency's often-expressed concern that bus
companies would fail to provide accessible service to disabled
passengers. See American Bus Ass'n v. Slater, No. 98-2351,
Mem. Op. at 22-23 (D.D.C. Sept. 10, 1999) ("Mem. Op.")
(citing, inter alia, United Steelworkers v. Marshall, 647 F.2d
1189, 1221 (D.C. Cir. 1980) ("Where the change between the
proposed and final rule is important, the question for the
court is whether the final rule is a 'logical outgrowth' of the
rulemaking proceeding.")). Indeed, the court reasoned, ABA
had actual notice that DOT was considering a damages
provision, as its own submitted comment expressly endorsed
a proposal that disappointed passengers should be permitted
to seek monetary relief. See id. at 25-26.
ABA's argument that the agency exceeded its statutory
authority by imposing money damages fared no better. The
District Court cited the Supreme Court's pronouncement
that, if an authorizing "statute is silent or ambiguous," courts
must uphold "a reasonable interpretation made by the admin-
istrator of an agency." Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843, 844
(1984). Such an ambiguity, the court reasoned, exists here:
"The plain language [of the ADA] indicates that Congress did
not explicitly forbid the Secretary from including a compensa-
tion mechanism in the OTRB accessibility regulations."
Mem. Op. at 28. Because of the ADA's silence on the
availability of money damages--because "[a] gap exists in this
enabling statute," id.--the court concluded that Chevron
obliged it to defer to DOT's reasonable interpretation.
Nor was the District Court persuaded by ABA's argument
that the agency's money-damages scheme is foreclosed by
APA s 558(b), which establishes that "[a] sanction may not be
imposed ... except within jurisdiction delegated to the agen-
cy and as authorized by law." 5 U.S.C. s 558(b) (1994). The
court conceded that DOT had authorized sanctions, but it
reasoned that they were not penal sanctions. Because the
sanctions were designed to remedy the injuries suffered by
disabled persons whose travel needs were not accommodated,
and because the fines would be paid directly to the disap-
pointed passengers, "this court concludes that the provision is
a regulatory sanction with a remedial purpose and not a
penalty." Mem. Op. at 27. The court therefore entered
summary judgment in favor of the agency's Secretary.
This appeal followed. ABA no longer contests DOT's
decision to require that OTRB companies equip their buses
with wheelchair lifts, and only its money-damages and notice-
and-comment claims are before this Court.
II. DISCUSSION
A. Chevron and ADA s 12188
The principal issue in this case is whether DOT had the
statutory authority to adopt a rule imposing money damages
on bus companies that fail to provide accessible service to
disabled passengers. Because, DOT proposes, this case in-
volves a dispute as to whether that rule is in fact authorized
by the statute it purports to implement, it is governed by the
familiar two-step analysis announced in Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). "First, always," the reviewing court must consider
"whether Congress has directly spoken to the precise ques-
tion at issue." An affirmative answer "is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress." Id. at
842-43. If, on the other hand, "the statute is silent or
ambiguous with respect to the specific issue," the court must
uphold "a reasonable interpretation made by the administra-
tor of an agency." Id. at 843, 844.
Applying Chevron to this case, we conclude that Congress
unambiguously intended to preclude DOT from authorizing
money damages. The ADA's carefully crafted remedies
scheme reveals the legislature's intent that the statute's
enumerated remedies were to be exclusive, and consequent
intent to deny agencies the power to authorize supplementary
monetary relief. The relevant portion of the ADA establishes
that:
The remedies and procedures set forth in section
2000a-3(a) of this title are the remedies and procedures
this subchapter provides to any person who is being
subjected to discrimination on the basis of disability in
violation of this subchapter or who has reasonable
grounds for believing that such person is about to be
subjected to discrimination in violation of section 12183 of
this title.
42 U.S.C. s 12188(a)(1) (emphasis added).
By preceding the words "remedies and procedures" with
the definite article "the," as opposed to the more general "a"
or "an," Congress made clear that it understood
s 2000a-3(a)'s remedies to be exclusive. Indeed, "[i]t is a
rule of law well established that the definite article 'the'
particularizes the subject which it precedes. It is a word of
limitation as opposed to the indefinite or generalizing force of
'a' or 'an.' " Brooks v. Zabka, 450 P.2d 653, 655 (Colo. 1969)
(en banc); see also Black's Law Dictionary 1477 (6th ed.
1990) ("In construing statute, definite article 'the' particular-
izes the subject which it precedes and is word of limitation as
opposed to indefinite or generalizing force 'a' or 'an'."). If
Congress had intended those remedies not to be exclusive, it
would have provided that the relief available to an ADA
plaintiff "includes" the 2000a-3(a) remedies.
The remedies set forth in 42 U.S.C. 2000a-3(a)--which is
part of the 1964 Civil Rights Act--do not include money
damages. See Newman v. Piggie Park Enters., Inc., 390 U.S.
400, 402 (1968) ("When a plaintiff brings an action under that
Title, he cannot recover damages."). Instead, as that subsec-
tion's caption ("Civil actions for injunctive relief") indicates, a
party may invoke s 2000a-3(a) only in an effort to obtain
"preventive relief, including an application for a permanent or
temporary injunction, restraining order, or other order." 42
U.S.C. s 2000a-3(a). As the Supreme Court has explained, a
s 2000a-3(a) plaintiff primarily seeks not redress of his own
injury, but to vindicate the policy of the United States
government. See Newman, 390 U.S. at 402 ("If he obtains an
injunction, he does so not for himself alone but also as a
'private attorney general,' vindicating a policy that Congress
considered of the highest priority.").
DOT additionally attempts to locate its authority to impose
fines in the ADA's specification that the Attorney General
may bring a civil action for money damages against OTRB
operators that fail to provide accessible service. See 42
U.S.C. s 12188(b) (1994). "Congress contemplated," the
agency submits, "that some type of compensation might be
paid from an operator to a disappointed rider." Appellee's
brief at 54. Not only does the civil-action provision not assist
DOT's claim that the ADA empowers it to authorize monetary
relief, it actually undermines it. Congress did indeed contem-
plate that money damages would be available--but it also
specified the precise conditions under which they could be
paid. The monetary relief must be (1) awarded by a court (2)
in a civil action (3) that was brought by the Attorney General.
By specifying the circumstances under which monetary relief
will be available, Congress evinced its intent that damages
would be available in no others. See Transamerica Mortgage
Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) (recognizing
that "it is an elemental canon of statutory construction that
where a statute expressly provides a particular remedy or
remedies, a court must be chary of reading others into it").
DOT's rule satisfies none of those three conditions. First,
the agency itself, not an Article III court, presumably would
levy fines against OTRB companies. Second, and as a conse-
quence, the fines would not be assessed in a civil action.
Finally, DOT makes monetary relief available even absent the
participation of the Attorney General. In fact, the agency is
somewhat, and perhaps deliberately, vague as to how it will
enforce its sanctions: The parties dispute whether a disap-
pointed passenger would hold a judicially cognizable right to
compensation. Compare Appellant's brief at 25 n.16, 26 n.17,
with Appellee's brief at 54-55 n.10. And at one point in its
briefs--though not, crucially, in the rule itself--the agency
claims that the Attorney General would be responsible for
enforcement. See Appellee's brief at 54-55 n.10. But it is
difficult to see how that could be the case, since DOT's rule
describes the compensation procedure as involving "a sum
sent directly to the passenger whose travel plans were dis-
rupted," and indeed states that "[n]o administrative proce-
dure"--or, presumably, judicial procedure--"is needed."
Transportation for Individuals with Disabilities, 63 Fed. Reg.
51,670, 51,687 (1998) (emphasis added).1
We conclude, therefore, that Congress has not granted
DOT the power to impose money damages on bus companies
that fail to provide accessible service to disabled passengers.
We need not evaluate the reasonableness of the agency's rule
under Chevron's second step, since we are bound in the first
instance to "give effect" to Congress's "unambiguously ex-
pressed intent." Chevron, 467 U.S. at 843.
B. APA s 558(b)
Our conclusion that DOT lacks the authority to authorize
money damages is confirmed by the Administrative Proce-
dure Act, s 558(b) of which establishes that "[a] sanction may
not be imposed or a substantive rule or order issued except
within jurisdiction delegated to the agency and as authorized
by law." 5 U.S.C. s 558(b) (1994). There is no dispute in
this case that DOT's fines are sanctions; the District Court
held as much, and the agency does not appear to challenge
that finding. Instead, the District Court apparently conclud-
ed that s 558(b) requires express grants of statutory authori-
ty, not for all sanctions, but only for the ones that can be
characterized as "penal." And, the court submitted, the
OTRB rules do not impose a "penalty" inasmuch as they
impose "a regulatory sanction with a remedial purpose."
Memorandum Opinion at 27.
That conclusion is likely erroneous for two reasons. First,
s 558(b) requires statutory authority for all sanctions, not
merely those that can be characterized as penal. Second,
DOT's compensation rule does, in fact, impose penalties that
go beyond simple compensation. DOT's efforts to distinguish
simple sanctions (which, it submits, may be imposed without
an express authorization) from punitive sanctions (which may
not) rest on the following syllogism:
__________
1 If the Secretary intends to assert that by means of his rule he
can channel the choices of the Attorney General and the courts
within the ADA remedy structure, he points to nothing suggesting
such authority.
(1) Section 558(b) permits agencies to impose non-
punitive sanctions, even in the absence of express
statutory authority.
(2) DOT's sanctions are non-punitive.
(3) Therefore, DOT could impose the sanctions absent
express statutory authority.
The problem with the syllogism is that its major premise is
flawed. Section 558(b) does not distinguish on its face be-
tween punitive sanctions and ordinary sanctions. It speaks of
"sanctions," period, and provides no basis for supposing that
one type may be imposed without statutory authorization, but
that other types may not. Nor does DOT cite any cases that
distinguish between punitive and ordinary sanctions. It sim-
ply moves from its conclusion that its rule imposes a sanction
to drawing a distinction between the two types, and omits the
necessary middle step of explaining why that distinction has
any legal significance.
Nor is the syllogism's minor premise--that the agency's
sanctions are non-punitive--persuasive. The amounts which
bus companies will be made to pay are not a function of a
would-be passenger's injury, but of the number of times the
company has violated the ADA in the past. The fines begin
at $300, for an OTRB operator's first offense, and escalate in
increments of $100 up to $700, for an operator's fifth and all
subsequent offenses. See Transportation for Individuals with
Disabilities, 63 Fed. Reg. 51,670, 51,692 (1998) (codified at 49
C.F.R. s 37.199 (2000)). There is no connection between the
fine imposed and the injury suffered. The fines are unrelated
to the out-of-pocket expenses--which might include lodging,
meals, and alternative transportation--a disappointed passen-
ger could be expected to pay. Instead, the agency is con-
cerned principally with punishing noncomplying OTRB opera-
tors.
To be sure, the agency's sanctions may have several objec-
tives, one of which is to punish and another of which is to
remedy disabled persons' injuries. But this Court regards as
a penalty any sanction that "goes beyond remedying the
damage caused to the harmed parties by the defendant's
action." Johnson v. SEC, 87 F.3d 484, 488 (D.C. Cir. 1996)
(emphasis added). In other words, a sanction is a penalty
even if only one of its various objectives is to punish wrongful
conduct; that is, if it "serv[es] in part to punish." Austin v.
United States, 509 U.S. 602, 610 (1993) (emphasis added).
Beyond cavil, DOT's sanctions are at least in part designed to
punish, which is why the damages an OTRB operator must
pay turn on the number of violations it has committed and not
the extent of the disappointed passenger's injury.
Nor are we persuaded by DOT's attempt to circumvent
s 558(b)'s directive by claiming that agencies possess a limit-
ed, but inherent, power to impose sanctions. DOT cites both
Touche Ross & Co. v. SEC, 609 F.2d 570 (2d Cir. 1979), and
Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994), for the
proposition that an agency's general power to protect the
integrity of its administrative processes entails an inherent
sanctioning power. Both cases are easily dismissed or distin-
guished.
Touche Ross concerned a Securities and Exchange Com-
mission rule that enabled the SEC to discipline attorneys by
refusing to allow them to practice before it. The Second
Circuit concluded that an agency has a limited power to
impose sanctions that are not expressly authorized by statute,
but only ones designed to "protect the integrity of its own
processes." Touche Ross, 609 F.2d at 582. The Commis-
sion's disciplinary rule did not apply to the primary conduct
of regulated entities, but was simply designed to "ensure that
those professionals, on whom the Commission relies heavily in
the performance of its statutory duties, perform their tasks
diligently and with a reasonable degree of competence." Id.
The SEC's housekeeping-type rule is quite unlike the rule
promulgated by DOT here, which penalizes regulated parties
for violations of their statutory duties. The agency's authori-
zation of monetary relief is not designed to "protect the
integrity of its own processes," but to encourage OTRB
companies to modify their primary conduct.
DOT's reliance on our own decision in Checkosky is even
more easily dismissed. The portion of Checkosky on which
the agency relies did not command a majority of this Court
but is, instead, the separate opinion of a single Judge. See
Appellee's brief at 55 (citing Checkosky, 23 F.3d at 455
(separate opinion of Silberman, J.)). And even if the Checko-
sky opinion did bind us, it would be distinguishable on the
same grounds as Touche Ross: Like Touche Ross, that case
concerned the SEC's authority to promulgate an internal
disciplinary rule. DOT's inherent sanctioning power extends
only to "protect[ing] the integrity of the agency's administra-
tive processes," Checkosky, 23 F.3d at 455 (separate opinion
of Silberman, J.), and not to modifying regulated parties'
primary conduct.
We conclude, therefore, that DOT lacked the statutory
authority to require OTRB companies to pay money damages
to the disabled passengers whom they fail to accommodate.
Congress could not speak more clearly than it has in the text
of the APA: "a sanction may not be imposed or a substantive
rule or order issued except within jurisdiction delegated to
the agency and as authorized by law." 5 U.S.C. s 558(b).
C. Notice-and-comment
ABA additionally claims that DOT violated the APA by
failing to provide it with adequate notice that it was consider-
ing, and with the opportunity to comment on, its money-
damages rule. See 5 U.S.C. s 553(b), (c) (1994). Because we
hold that DOT had no authority to promulgate that rule in
the first instance, the Court finds it unnecessary to take up
ABA's notice-and-comment claim. The agency has exceeded
the scope of the authority delegated to it by Congress, and it
matters not that they adhered to the APA's procedural
requirements in doing so.
III. CONCLUSION
Congress has not conferred on DOT the power to authorize
money damages against OTRB companies that fail to comply
with the ADA. We therefore reverse the District Court's
grant of summary judgment in favor of the agency's Secre-
tary.
It is so ordered.
Sentelle, Circuit Judge, concurring: I write separately to
express my view that the Court need not reach the second
step of Chevron for a more fundamental reason; namely, that
the ADA contains no ambiguity that could trigger that analy-
sis. DOT proposes as the statute's deference-triggering am-
biguity the fact that the statute does not expressly state that
the remedies detailed in s 12188 are to be "exclusive." In
essence, the agency's position--and the District Court's hold-
ing--is that the absence of a statutory grant of power is itself
an ambiguity that calls for Chevron deference. See, e.g.,
Mem. Op. at 28 ("The plain language [of the ADA] indicates
that Congress did not explicitly forbid the Secretary from
including a compensation mechanism in the OTRB accessibili-
ty regulations."); Appellee's brief at 43 (proposing that the
"first step of the Chevron analysis ... can be resolved quickly
here" because Congress "neither required nor prohibited the
Secretary from promulgating a compensation provision" and
because "Congress did not place any specific limitations on
the contents of the OTRB rules"). An agency, DOT submits,
is free to impose any otherwise-reasonable rule that Con-
gress has not expressly prohibited.
I would conclude that the second step of Chevron is not
even implicated in this case. Chevron step two applies only
when a statute contains an ambiguity. But Congress's failure
to grant an agency a given power is not an ambiguity as to
whether that power has, in fact, been granted. On the
contrary, and as this Court persistently has recognized, a
statutory silence on the granting of a power is a denial of
that power to the agency. See, e.g., Backcountry Against
Dumps v. EPA, 100 F.3d 147, 150 (D.C. Cir. 1996) (rejecting
EPA's argument "that, since section 6945(c) is silent as to its
application to Indian tribes, the statute is 'ambiguous' ");
Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995) ("We
refuse, once again, to presume a delegation of power merely
because Congress has not expressly withheld such power.");
see also Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990)
("A 'gap' is not created in a statutory scheme merely because
a statute does not restate the truism that States may not pre-
empt federal law.").
This Court, while sitting en banc, has already disposed of
DOT's argument that the judiciary must afford Chevron
deference to an agency's interpretation of a statutory silence.
"To suggest," we reasoned,
that Chevron step two is implicated any time a statute
does not expressly negate the existence of a claimed
administrative power (i.e. when the statute is not written
in "thou shalt not" terms), is both flatly unfaithful to the
principles of administrative law outlined above, and refut-
ed by precedent.... Were courts to presume a delega-
tion of power absent an express withholding of such
power, agencies would enjoy virtually limitless hegemo-
ny, a result plainly out of keeping with Chevron and quite
likely with the Constitution as well.
Railway Labor Executives' Ass'n v. National Mediation Bd.,
29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (emphasis in
original) (citations omitted). The ADA is not ambiguous on
whether it grants DOT the power to authorize money dam-
ages against non-complying bus companies. The statute sim-
ply does not grant it that power.
The proposition that statutory silences are not Chevron-
triggering ambiguities follows from the very nature of admin-
istrative agencies. Agencies have no inherent powers. They
instead are creatures of statute, and may act only because,
and only to the extent that, Congress affirmatively has dele-
gated them the power to act. See Louisiana Pub. Serv.
Comm'n v. FCC, 476 U.S. 355, 374 (1986) ("[A]n agency
literally has no power to act ... unless and until Congress
confers power upon it."); Railway Labor Executives' Ass'n,
29 F.3d at 670 ("Agencies owe their capacity to act to the
delegation of authority, either express or implied, from the
legislature.").
Hence if Congress wishes to deny an agency a given power,
it need not expressly restrict the agency; it is enough for
Congress simply to decline to delegate power. In the same
way, a statute that is completely silent on the question of
whether it confers a power does not vest the agency with the
discretion to determine the scope of that power. See Natural
Resources Defense Council v. Reilly, 983 F.2d 259, 266 (D.C.
Cir. 1993) (" '[I]t is only legislative intent to delegate such
authority that entitles an agency to advance its own statutory
construction for review under the deferential second prong of
Chevron.' " (quoting Kansas City v. Dep't of Housing &
Urban Dev., 923 F.2d 188, 191-92 (D.C. Cir. 1991))). In order
for there to be an ambiguous grant of power, there must be a
grant of power in the first instance. There is none here.
Moreover, accepting DOT's contention--that a statutory
silence empowers it to promulgate any rules that Congress
has not expressly forbidden--would vest agencies with near-
plenary authority. Agencies would become the nation's prin-
cipal lawmakers. After all, it is the norm for statutes to be
silent on whether they grant various powers to agencies. The
ADA is silent on whether DOT has the power to oblige bus
companies to give disabled persons free passage. It is also
silent on whether DOT has the power to require that bus
companies transport disabled passengers in their own individ-
ual buses. If we were to accept DOT's view, we would be
obliged to conclude that Congress somehow, if only ambigu-
ously, has authorized the agency to adopt both of those rules,
and consequently would be bound to afford them Chevron
deference. We would not, of course, be obliged to rubber-
stamp an agency's interpretation of those, or any other,
statutory silences; any such interpretation would still have to
satisfy the reasonableness test of Chevron step two. See
Chevron, 467 U.S. at 844 (requiring courts to uphold only "a
reasonable interpretation made by the administrator of an
agency"). But it makes a mockery of Chevron to suggest
that its second prong is even implicated by Congress's failure
to deny a power to an agency.
The agency's position--that that which is not forbidden is
permitted--turns the basic assumption of the American sys-
tem of government on its head. Our Constitution permits the
national government to exercise only those powers affirma-
tively granted to it by the people of the several states. See,
e.g., U.S. Const. amend. X; McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 405 (1819) ("This government is acknowledged
by all to be one of enumerated powers"); Marbury v. Madi-
son, 5 U.S. (1 Cranch) 137, 176 (1803) ("The powers of the
legislature are defined and limited; and that those limits may
not be mistaken or forgotten, the constitution is written.").
The Constitution's presumption is that a power not expressly
conferred on the federal government has been denied to it.
The same principle informs Congress's delegations of power
to administrative agencies. Unless Congress delegates au-
thority to an agency, the agency is without power to act.
And, it goes without saying, courts need not defer to an
agency's interpretation, reasonable or otherwise, of a non-
existent grant of power.