Perez v. Mortgage Bankers Assn.

(Slip Opinion) OCTOBER TERM, 2014 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PEREZ, SECRETARY OF LABOR, ET AL. v. MORTGAGE
BANKERS ASSOCIATION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT

No. 13–1041. Argued December 1, 2014—Decided March 9, 2015*
The Administrative Procedure Act (APA) establishes the procedures
federal administrative agencies use for “rule making,” defined as the
process of “formulating, amending, or repealing a rule.” 5 U. S. C.
§551(5). The APA distinguishes between two types of rules: So-called
“legislative rules” are issued through notice-and-comment rulemak-
ing, see §§553(b), (c), and have the “force and effect of law,” Chrysler
Corp. v. Brown, 441 U. S. 281, 302–303. “Interpretive rules,” by con-
trast, are “issued . . . to advise the public of the agency’s construction
of the statutes and rules which it administers,” Shalala v. Guernsey
Memorial Hospital, 514 U. S. 87, 99, do not require notice-and-
comment rulemaking, and “do not have the force and effect of law,”
ibid.
In 1999 and 2001, the Department of Labor’s Wage and Hour Divi-
sion issued letters opining that mortgage-loan officers do not qualify
for the administrative exemption to overtime pay requirements under
the Fair Labor Standards Act of 1938. In 2004, the Department is-
sued new regulations regarding the exemption. Respondent Mort-
gage Bankers Association (MBA) requested a new interpretation of
the revised regulations as they applied to mortgage-loan officers, and
in 2006, the Wage and Hour Division issued an opinion letter finding
that mortgage-loan officers fell within the administrative exemption
under the 2004 regulations. In 2010, the Department again altered
its interpretation of the administrative exemption. Without notice or
an opportunity for comment, the Department withdrew the 2006
——————
* Together with No. 13–1052, Nickols et al. v. Mortgage Bankers As-
sociation, also on certiorari to the same court.
2 PEREZ v. MORTGAGE BANKERS ASSN.

Syllabus

opinion letter and issued an Administrator’s Interpretation conclud-
ing that mortgage-loan officers do not qualify for the administrative
exemption.
MBA filed suit contending, as relevant here, that the Administra-
tor’s Interpretation was procedurally invalid under the D. C. Circuit’s
decision in Paralyzed Veterans of Am. v. D. C. Arena L. P., 117 F. 3d
579. The Paralyzed Veterans doctrine holds that an agency must use
the APA’s notice-and-comment procedures when it wishes to issue a
new interpretation of a regulation that deviates significantly from a
previously adopted interpretation. The District Court granted sum-
mary judgment to the Department, but the D. C. Circuit applied Par-
alyzed Veterans and reversed.
Held: The Paralyzed Veterans doctrine is contrary to the clear text of
the APA’s rulemaking provisions and improperly imposes on agencies
an obligation beyond the APA’s maximum procedural requirements.
Pp. 6–14.
(a) The APA’s categorical exemption of interpretive rules from
the notice-and-comment process is fatal to the Paralyzed Veterans
doctrine. The D. C. Circuit’s reading of the APA conflates the differ-
ing purposes of §§1 and 4 of the Act. Section 1 requires agencies to
use the same procedures when they amend or repeal a rule as they
used to issue the rule, see 5 U. S. C. §551(5), but it does not say what
procedures an agency must use when it engages in rulemaking. That
is the purpose of §4. And §4 specifically exempts interpretive rules
from notice-and-comment requirements. Because an agency is not
required to use notice-and-comment procedures to issue an initial in-
terpretive rule, it is also not required to use those procedures to
amend or repeal that rule. Pp. 7–8.
(b) This straightforward reading of the APA harmonizes with
longstanding principles of this Court’s administrative law jurispru-
dence, which has consistently held that the APA “sets forth the full
extent of judicial authority to review executive agency action for pro-
cedural correctness,” FCC v. Fox Television Stations, Inc., 556 U. S.
502, 513. The APA’s rulemaking provisions are no exception: §4 es-
tablishes “the maximum procedural requirements” that courts may
impose upon agencies engaged in rulemaking. Vermont Yankee Nu-
clear Power Corp. v. Natural Resources Defense Council, Inc., 435
U. S. 519, 524. By mandating notice-and-comment procedures when
an agency changes its interpretation of one of the regulations it en-
forces, Paralyzed Veterans creates a judge-made procedural right that
is inconsistent with Congress’ standards. Pp. 8–9.
(c) MBA’s reasons for upholding the Paralyzed Veterans doctrine
are unpersuasive. Pp. 9–14.
(1) MBA asserts that an agency interpretation of a regulation
 Cite as: 575 U. S. ____ (2015) 3

Syllabus

that significantly alters the agency’s prior interpretation effectively
amends the underlying regulation. That assertion conflicts with the
ordinary meaning of the words “amend” and “interpret,” and it is im-
possible to reconcile with the longstanding recognition that interpre-
tive rules do not have the force and effect of law. MBA’s theory is
particularly odd in light of the limitations of the Paralyzed Veterans
doctrine, which applies only when an agency has previously adopted
an interpretation of its regulation. MBA fails to explain why its ar-
gument regarding revised interpretations should not also extend to
the agency’s first interpretation. Christensen v. Harris County, 529
U. S. 576, and Shalala v. Guernsey Memorial Hospital, 514 U. S. 87,
distinguished. Pp. 9–12.
(2) MBA also contends that the Paralyzed Veterans doctrine re-
inforces the APA’s goal of procedural fairness. But the APA already
provides recourse to regulated entities from agency decisions that
skirt notice-and-comment provisions by placing a variety of con-
straints on agency decisionmaking, e.g., the arbitrary and capricious
standard. In addition, Congress may include safe-harbor provisions
in legislation to shelter regulated entities from liability when they re-
ly on previous agency interpretations. See, e.g., 29 U. S. C. §§259(a),
(b)(1). Pp. 12–13.
(3) MBA has waived its argument that the 2010 Administra-
tor’s Interpretation should be classified as a legislative rule. From
the beginning, this suit has been litigated on the understanding that
the Administrator’s Interpretation is an interpretive rule. Neither
the District Court nor the Court of Appeals addressed this argument
below, and MBA did not raise it here in opposing certiorari. P. 14.
720 F. 3d 966, reversed.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined, and in
which ALITO, J., joined except for Part III–B. ALITO, J., filed an opinion
concurring in part and concurring in the judgment. SCALIA, J., and
THOMAS, J., filed opinions concurring in the judgment.
 Cite as: 575 U. S. ____ (2015) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–1041 and 13–1052
_________________

THOMAS E. PEREZ, SECRETARY OF LABOR, ET AL.,
PETITIONERS
13–1041 v.
MORTGAGE BANKERS ASSOCIATION ET AL.

JEROME NICKOLS, ET AL., PETITIONERS
13–1052 v.
MORTGAGE BANKERS ASSOCIATION
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 9, 2015]

JUSTICE SOTOMAYOR delivered the opinion of the Court.
When a federal administrative agency first issues a rule
interpreting one of its regulations, it is generally not
required to follow the notice-and-comment rulemaking
procedures of the Administrative Procedure Act (APA or
Act). See 5 U. S. C. §553(b)(A). The United States Court
of Appeals for the District of Columbia Circuit has never-
theless held, in a line of cases beginning with Paralyzed
Veterans of Am. v. D. C. Arena L. P., 117 F. 3d 579 (1997),
that an agency must use the APA’s notice-and-comment
procedures when it wishes to issue a new interpretation of
a regulation that deviates significantly from one the agency
has previously adopted. The question in these cases is
whether the rule announced in Paralyzed Veterans is
consistent with the APA. We hold that it is not.
2 PEREZ v. MORTGAGE BANKERS ASSN.

Opinion of the Court

I
A
The APA establishes the procedures federal administra-
tive agencies use for “rule making,” defined as the process
of “formulating, amending, or repealing a rule.” §551(5).
“Rule,” in turn, is defined broadly to include “statement[s]
of general or particular applicability and future effect”
that are designed to “implement, interpret, or prescribe
law or policy.” §551(4).
Section 4 of the APA, 5 U. S. C. §553, prescribes a three-
step procedure for so-called “notice-and-comment rulemak-
ing.” First, the agency must issue a “[g]eneral notice of
proposed rule making,” ordinarily by publication in the
Federal Register. §553(b). Second, if “notice [is] re-
quired,” the agency must “give interested persons an
opportunity to participate in the rule making through
submission of written data, views, or arguments.” §553(c).
An agency must consider and respond to significant com-
ments received during the period for public comment. See
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S.
402, 416 (1971); Thompson v. Clark, 741 F. 2d 401, 408
(CADC 1984). Third, when the agency promulgates the
final rule, it must include in the rule’s text “a concise
general statement of [its] basis and purpose.” §553(c).
Rules issued through the notice-and-comment process are
often referred to as “legislative rules” because they have
the “force and effect of law.” Chrysler Corp. v. Brown,
441 U. S. 281, 302–303 (1979) (internal quotation marks
omitted).
Not all “rules” must be issued through the notice-and-
comment process. Section 4(b)(A) of the APA provides
that, unless another statute states otherwise, the notice-
and-comment requirement “does not apply” to “interpreta-
tive rules, general statements of policy, or rules of agency
organization, procedure, or practice.” 5 U. S. C.
§553(b)(A). The term “interpretative rule,” or “interpre-
 Cite as: 575 U. S. ____ (2015) 3

Opinion of the Court

tive rule,”1 is not further defined by the APA, and its
precise meaning is the source of much scholarly and judi-
cial debate. See generally Pierce, Distinguishing Legisla-
tive Rules From Interpretative Rules, 52 Admin. L. Rev.
547 (2000); Manning, Nonlegislative Rules, 72 Geo. Wash.
L. Rev. 893 (2004). We need not, and do not, wade into
that debate here. For our purposes, it suffices to say that
the critical feature of interpretive rules is that they are
“issued by an agency to advise the public of the agency’s
construction of the statutes and rules which it adminis-
ters.” Shalala v. Guernsey Memorial Hospital, 514 U. S.
87, 99 (1995) (internal quotation marks omitted). The
absence of a notice-and-comment obligation makes the
process of issuing interpretive rules comparatively easier
for agencies than issuing legislative rules. But that con-
venience comes at a price: Interpretive rules “do not have
the force and effect of law and are not accorded that
weight in the adjudicatory process.” Ibid.
B
These cases began as a dispute over efforts by the De-
partment of Labor to determine whether mortgage-loan
officers are covered by the Fair Labor Standards Act of
1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §201
et seq. The FLSA “establishe[s] a minimum wage and
overtime compensation for each hour worked in excess of
40 hours in each workweek” for many employees. Integ-
rity Staffing Solutions, Inc. v. Busk, 574 U. S. ___, ___
(2014) (slip op., at 3). Certain classes of employees, how-
ever, are exempt from these provisions. Among these
exempt individuals are those “employed in a bona fide
executive, administrative, or professional capacity . . . or
in the capacity of outside salesman . . . .” §213(a)(1). The

——————
1 The latter is the more common phrasing today, and the one we use

throughout this opinion.
4 PEREZ v. MORTGAGE BANKERS ASSN.

Opinion of the Court

exemption for such employees is known as the “adminis-
trative” exemption.
The FLSA grants the Secretary of Labor authority to
“defin[e]” and “delimi[t]” the categories of exempt admin-
istrative employees. Ibid. The Secretary’s current regu-
lations regarding the administrative exemption were
promulgated in 2004 through a notice-and-comment
rulemaking. As relevant here, the 2004 regulations dif-
fered from the previous regulations in that they contained
a new section providing several examples of exempt ad-
ministrative employees. See 29 CFR §541.203. One of the
examples is “[e]mployees in the financial services indus-
try,” who, depending on the nature of their day-to-day
work, “generally meet the duties requirements for the
administrative exception.” §541.203(b). The financial
services example ends with a caveat, noting that “an
employee whose primary duty is selling financial products
does not qualify for the administrative exemption.” Ibid.
In 1999 and again in 2001, the Department’s Wage and
Hour Division issued letters opining that mortgage-loan
officers do not qualify for the administrative exemption.
See Opinion Letter, Loan Officers/Exempt Status, 6A
LRR, Wages and Hours Manual 99:8351 (Feb. 16, 2001);
Opinion Letter, Mortgage Loan Officers/Exempt Status,
id., at 99:8249. (May 17, 1999). In other words, the De-
partment concluded that the FLSA’s minimum wage and
maximum hour requirements applied to mortgage-loan
officers. When the Department promulgated its current
FLSA regulations in 2004, respondent Mortgage Bankers
Association (MBA), a national trade association represent-
ing real estate finance companies, requested a new opinion
interpreting the revised regulations. In 2006, the De-
partment issued an opinion letter finding that mortgage-
loan officers fell within the administrative exemption
under the 2004 regulations. See App. to Pet. for Cert. in
No. 13–1041, pp. 70a–84a. Four years later, however, the
 Cite as: 575 U. S. ____ (2015) 5

Opinion of the Court

Wage and Hour Division again altered its interpretation of
the FLSA’s administrative exemption as it applied to
mortgage-loan officers. Id., at 49a–69a. Reviewing the
provisions of the 2004 regulations and judicial decisions
addressing the administrative exemption, the Depart-
ment’s 2010 Administrator’s Interpretation concluded that
mortgage-loan officers “have a primary duty of making
sales for their employers, and, therefore, do not qualify”
for the administrative exemption. Id., at 49a, 69a. The
Department accordingly withdrew its 2006 opinion letter,
which it now viewed as relying on “misleading assump-
tion[s] and selective and narrow analysis” of the exemp-
tion example in §541.203(b). Id., at 68a. Like the 1999,
2001, and 2006 opinion letters, the 2010 Administrator’s
Interpretation was issued without notice or an opportunity
for comment.
C
MBA filed a complaint in Federal District Court chal-
lenging the Administrator’s Interpretation. MBA con-
tended that the document was inconsistent with the 2004
regulation it purported to interpret, and thus arbitrary
and capricious in violation of §10 of the APA, 5 U. S. C.
§706. More pertinent to this case, MBA also argued that
the Administrator’s Interpretation was procedurally in-
valid in light of the D. C. Circuit’s decision in Paralyzed
Veterans, 117 F. 3d 579. Under the Paralyzed Veterans
doctrine, if “an agency has given its regulation a definitive
interpretation, and later significantly revises that inter-
pretation, the agency has in effect amended its rule, some-
thing it may not accomplish” under the APA “without
notice and comment.” Alaska Professional Hunters Assn.,
Inc. v. FAA, 177 F. 3d 1030, 1034 (CADC 1999). Three
former mortgage-loan officers—Beverly Buck, Ryan Henry,
and Jerome Nickols—subsequently intervened in the
6 PEREZ v. MORTGAGE BANKERS ASSN.

Opinion of the Court

case to defend the Administrator’s Interpretation.2
The District Court granted summary judgment to the
Department. Mortgage Bankers Assn. v. Solis, 864
F. Supp. 2d 193 (DC 2012). Though it accepted the par-
ties’ characterization of the Administrator’s Interpretation
as an interpretive rule, id., at 203, n. 7, the District Court
determined that the Paralyzed Veterans doctrine was
inapplicable because MBA had failed to establish its reli-
ance on the contrary interpretation expressed in the De-
partment’s 2006 opinion letter. The Administrator’s In-
terpretation, the District Court further determined, was
fully supported by the text of the 2004 FLSA regulations.
The court accordingly held that the 2010 interpretation
was not arbitrary or capricious.3
The D. C. Circuit reversed. Mortgage Bankers Assn. v.
Harris, 720 F. 3d 966 (2013). Bound to the rule of Para-
lyzed Veterans by precedent, the Court of Appeals rejected
the Government’s call to abandon the doctrine. 720 F. 3d.,
at 967, n. 1. In the court’s view, “[t]he only question”
properly before it was whether the District Court had
erred in requiring MBA to prove that it relied on the
Department’s prior interpretation. Id., at 967. Explaining
that reliance was not a required element of the Paralyzed
Veterans doctrine, and noting the Department’s concession
that a prior, conflicting interpretation of the 2004 regula-
tions existed, the D. C. Circuit concluded that the 2010
Administrator’s Interpretation had to be vacated.
We granted certiorari, 573 U. S. __ (2014), and now
reverse.
II
The Paralyzed Veterans doctrine is contrary to the clear
——————
2 Buck,
Henry, and Nickols are petitioners in No. 13–1052 and re-
spondents in No. 13–1041.
3 MBA did not challenge this aspect of the District Court’s decision on

appeal.
 Cite as: 575 U. S. ____ (2015) 7

Opinion of the Court

text of the APA’s rulemaking provisions, and it improperly
imposes on agencies an obligation beyond the “maximum
procedural requirements” specified in the APA, Vermont
Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, Inc., 435 U. S. 519, 524 (1978).
A
The text of the APA answers the question presented.
Section 4 of the APA provides that “notice of proposed rule
making shall be published in the Federal Register.” 5
U. S. C. §553(b). When such notice is required by the
APA, “the agency shall give interested persons an oppor-
tunity to participate in the rule making.” §553(c). But §4
further states that unless “notice or hearing is required by
statute,” the Act’s notice-and-comment requirement “does
not apply . . . to interpretative rules.” §553(b)(A). This
exemption of interpretive rules from the notice-and-
comment process is categorical, and it is fatal to the rule
announced in Paralyzed Veterans.
Rather than examining the exemption for interpretive
rules contained in §4(b)(A) of the APA, the D. C. Circuit in
Paralyzed Veterans focused its attention on §1 of the Act.
That section defines “rule making” to include not only the
initial issuance of new rules, but also “repeal[s]” or
“amend[ments]” of existing rules. See §551(5). Because
notice-and-comment requirements may apply even to
these later agency actions, the court reasoned, “allow[ing]
an agency to make a fundamental change in its interpre-
tation of a substantive regulation without notice and
comment” would undermine the APA’s procedural frame-
work. 117 F. 3d, at 586.
This reading of the APA conflates the differing purposes
of §§1 and 4 of the Act. Section 1 defines what a rule-
making is. It does not, however, say what procedures an
agency must use when it engages in rulemaking. That is
the purpose of §4. And §4 specifically exempts interpretive
8 PEREZ v. MORTGAGE BANKERS ASSN.

Opinion of the Court

rules from the notice-and-comment requirements that
apply to legislative rules. So, the D. C. Circuit correctly
read §1 of the APA to mandate that agencies use the same
procedures when they amend or repeal a rule as they used
to issue the rule in the first instance. See FCC v. Fox
Television Stations, Inc., 556 U. S. 502, 515 (2009) (the
APA “make[s] no distinction . . . between initial agency
action and subsequent agency action undoing or revising
that action”). Where the court went wrong was in failing
to apply that accurate understanding of §1 to the exemp-
tion for interpretive rules contained in §4: Because an
agency is not required to use notice-and-comment proce-
dures to issue an initial interpretive rule, it is also not
required to use those procedures when it amends or re-
peals that interpretive rule.
B
The straightforward reading of the APA we now adopt
harmonizes with longstanding principles of our adminis-
trative law jurisprudence. Time and again, we have reit-
erated that the APA “sets forth the full extent of judicial
authority to review executive agency action for procedural
correctness.” Fox Television Stations, Inc., 556 U. S., at
513. Beyond the APA’s minimum requirements, courts
lack authority “to impose upon [an] agency its own notion
of which procedures are ‘best’ or most likely to further
some vague, undefined public good.” Vermont Yankee, 435
U. S., at 549. To do otherwise would violate “the very
basic tenet of administrative law that agencies should be
free to fashion their own rules of procedure.” Id., at 544.
These foundational principles apply with equal force to
the APA’s procedures for rulemaking. We explained in
Vermont Yankee that §4 of the Act “established the maxi-
mum procedural requirements which Congress was willing
to have the courts impose upon agencies in conducting
rulemaking procedures.” Id., at 524. “Agencies are free to
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Opinion of the Court

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.” Ibid.
The Paralyzed Veterans doctrine creates just such a
judge-made procedural right: the right to notice and an
opportunity to comment when an agency changes its
interpretation of one of the regulations it enforces. That
requirement may be wise policy. Or it may not. Regard-
less, imposing such an obligation is the responsibility of
Congress or the administrative agencies, not the courts.
We trust that Congress weighed the costs and benefits of
placing more rigorous procedural restrictions on the issu-
ance of interpretive rules. See id., at 523 (when Congress
enacted the APA, it “settled long-continued and hard-
fought contentions, and enact[ed] a formula upon which
opposing social and political forces have come to rest”
(internal quotation marks omitted)). In the end, Congress
decided to adopt standards that permit agencies to prom-
ulgate freely such rules—whether or not they are con-
sistent with earlier interpretations. That the D. C. Circuit
would have struck the balance differently does not permit
that court or this one to overturn Congress’ contrary
judgment. Cf. Law v. Siegel, 571 U. S. ___, ___ (2014) (slip
op., at 11).
III
MBA offers several reasons why the Paralyzed Veterans
doctrine should be upheld. They are not persuasive.
A
MBA begins its defense of the Paralyzed Veterans doc-
trine by attempting to bolster the D. C. Circuit’s reading of
the APA. “Paralyzed Veterans,” MBA contends, “simply
acknowledges the reality that where an agency significantly
alters a prior, definitive interpretation of a regulation, it
10 PEREZ v. MORTGAGE BANKERS ASSN.

Opinion of the Court

has effectively amended the regulation itself,” something
that under the APA requires use of notice-and-comment
procedures. Brief for Respondent 20–21.
The act of “amending,” however, in both ordinary par-
lance and legal usage, has its own meaning separate and
apart from the act of “interpreting.” Compare Black’s Law
Dictionary 98 (10th ed. 2014) (defining “amend” as “[t]o
change the wording of ” or “formally alter . . . by striking
out, inserting, or substituting words”), with id., at 943
(defining “interpret” as “[t]o ascertain the meaning and
significance of thoughts expressed in words”). One would
not normally say that a court “amends” a statute when it
interprets its text. So too can an agency “interpret” a
regulation without “effectively amend[ing]” the underlying
source of law. MBA does not explain how, precisely, an
interpretive rule changes the regulation it interprets, and
its assertion is impossible to reconcile with the longstand-
ing recognition that interpretive rules do not have the
force and effect of law. See Chrysler Corp., 441 U. S., at
302, n. 31 (citing Attorney General’s Manual on the Ad-
ministrative Procedure Act 30, n. 3 (1947)); Skidmore v.
Swift & Co., 323 U. S. 134, 140 (1944).
MBA’s “interpretation-as-amendment” theory is particu-
larly odd in light of the limitations of the Paralyzed Veter-
ans doctrine. Recall that the rule of Paralyzed Veterans
applies only when an agency has previously adopted an
interpretation of its regulation. Yet in that initial inter-
pretation as much as all that come after, the agency is
giving a definite meaning to an ambiguous text—the very
act MBA insists requires notice and comment. MBA is
unable to say why its arguments regarding revised inter-
pretations should not also extend to the agency’s first
interpretation.4
——————
4 MBA alternatively suggests that interpretive rules have the force of

law because an agency’s interpretation of its own regulations may be
 Cite as: 575 U. S. ____ (2015) 11

Opinion of the Court

Next, MBA argues that the Paralyzed Veterans doctrine
is more consistent with this Court’s “functional” approach
to interpreting the APA. Relying on Christensen v. Harris
County, 529 U. S. 576 (2000), and Shalala v. Guernsey
Memorial Hospital, 514 U. S. 87, MBA contends that we
have already recognized that an agency may not “avoid
notice-and-comment procedures by cloaking its actions in
the mantle of mere ‘interpretation.’ ” Brief for Respondent
23–24.
Neither of the cases MBA cites supports its argument.
Our decision in Christensen did not address a change in
agency interpretation. Instead, we there refused to give
deference to an agency’s interpretation of an unambiguous
regulation, observing that to defer in such a case would
allow the agency “to create de facto a new regulation.” 529
U. S., at 588. Put differently, Christensen held that the
agency interpretation at issue was substantively invalid
because it conflicted with the text of the regulation the
agency purported to interpret. That holding is irrelevant
to this suit and to the Paralyzed Veterans rule, which
assesses whether an agency interpretation is procedurally
invalid.

——————
entitled to deference under Auer v. Robbins, 519 U. S. 452 (1997), and
Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). Even in
cases where an agency’s interpretation receives Auer deference, how-
ever, it is the court that ultimately decides whether a given regulation
means what the agency says. Moreover, Auer deference is not an
inexorable command in all cases. See Christopher v. SmithKline
Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10) (Auer defer-
ence is inappropriate “when the agency’s interpretation is plainly
erroneous or inconsistent with the regulation” or “when there is reason
to suspect that the agency’s interpretation does not reflect the agency’s
fair and considered judgment” (internal quotation marks omitted));
Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 515 (1994) (“[A]n
agency’s interpretation of a . . . regulation that conflicts with a prior
interpretation is entitled to considerably less deference than a consist-
ently held agency view” (internal quotation marks omitted)).
12 PEREZ v. MORTGAGE BANKERS ASSN.

Opinion of the Court

As for Guernsey, that case is fully consistent with—
indeed, confirms—what the text of the APA makes plain:
“Interpretive rules do not require notice and comment.”
514 U. S., at 99. Sidestepping this inconvenient language,
MBA instead quotes a portion of the Court’s opinion stat-
ing that “APA rulemaking would still be required if [an
agency] adopted a new position inconsistent with . . .
existing regulations.” Id., at 100. But the statement on
which MBA relies is dictum. Worse, it is dictum taken out
of context. The “regulations” to which the Court referred
were two provisions of the Medicare reimbursement
scheme. And it is apparent from the Court’s description of
these regulations in Part II of the opinion that they were
legislative rules, issued through the notice-and-comment
process. See id., at 91–92 (noting that the disputed regu-
lations were codified in the Code of Federal Regulations).
Read properly, then, the cited passage from Guernsey
merely means that “an agency may only change its inter-
pretation if the revised interpretation is consistent with
the underlying regulations.” Brief for Petitioners in No.
13–1052, p. 44.
B
In the main, MBA attempts to justify the Paralyzed
Veterans doctrine on practical and policy grounds. MBA
contends that the doctrine reinforces the APA’s goal of
“procedural fairness” by preventing agencies from unilat-
erally and unexpectedly altering their interpretation of
important regulations. Brief for Respondent 16.
There may be times when an agency’s decision to issue
an interpretive rule, rather than a legislative rule, is
driven primarily by a desire to skirt notice-and-comment
provisions. But regulated entities are not without re-
course in such situations. Quite the opposite. The APA
contains a variety of constraints on agency decisionmak-
ing—the arbitrary and capricious standard being among
 Cite as: 575 U. S. ____ (2015) 13

Opinion of the Court

the most notable. As we held in Fox Television Stations,
and underscore again today, the APA requires an agency
to provide more substantial justification when “its new
policy rests upon factual findings that contradict those
which underlay its prior policy; or when its prior policy
has engendered serious reliance interests that must be
taken into account. It would be arbitrary and capricious
to ignore such matters.” 556 U. S., at 515 (citation omit-
ted); see also id., at 535 (KENNEDY, J., concurring in part
and concurring in judgment).
In addition, Congress is aware that agencies sometimes
alter their views in ways that upset settled reliance inter-
ests. For that reason, Congress sometimes includes in the
statutes it drafts safe-harbor provisions that shelter regu-
lated entities from liability when they act in conformance
with previous agency interpretations. The FLSA includes
one such provision: As amended by the Portal-to-Portal
Act of 1947, 29 U. S. C. §251 et seq., the FLSA provides
that “no employer shall be subject to any liability” for
failing “to pay minimum wages or overtime compensation”
if it demonstrates that the “act or omission complained of
was in good faith in conformity with and in reliance on
any written administrative regulation, order, ruling,
approval, or interpretation” of the Administrator of the
Department’s Wage and Hour Division, even when the
guidance is later “modified or rescinded.” §§259(a), (b)(1).
These safe harbors will often protect parties from liability
when an agency adopts an interpretation that conflicts
with its previous position.5
——————
5 The United States acknowledged at argument that even in situa-

tions where a statute does not contain a safe-harbor provision similar
to the one included in the FLSA, an agency’s ability to pursue enforce-
ment actions against regulated entities for conduct in conformance with
prior agency interpretations may be limited by principles of retroactiv-
ity. See Tr. of Oral Arg. 44–45. We have no occasion to consider how
such principles might apply here.
14 PEREZ v. MORTGAGE BANKERS ASSN.

Opinion of the Court

C
MBA changes direction in the second half of its brief,
contending that if the Court overturns the Paralyzed
Veterans rule, the D. C. Circuit’s judgment should none-
theless be affirmed. That is so, MBA says, because the
agency interpretation at issue—the 2010 Administrator’s
Interpretation—should in fact be classified as a legislative
rule.
We will not address this argument. From the begin-
ning, the parties litigated this suit on the understanding
that the Administrator’s Interpretation was—as its name
suggests—an interpretive rule. Indeed, if MBA did not
think the Administrator’s Interpretation was an interpre-
tive rule, then its decision to invoke the Paralyzed Veter-
ans doctrine in attacking the rule is passing strange.
After all, Paralyzed Veterans applied only to interpretive
rules. Consequently, neither the District Court nor the
D. C. Circuit considered MBA’s current claim that the
Administrator’s Interpretation is actually a legislative
rule. Beyond that, and more important still, MBA’s brief
in opposition to certiorari did not dispute petitioners’
assertions—in their framing of the question presented and
in the substance of their petitions—that the Administra-
tor’s Interpretation is an interpretive rule. Thus, even
assuming MBA did not waive the argument below, it has
done so in this Court. See this Court’s Rule 15.2; Carcieri
v. Salazar, 555 U. S. 379, 395–396 (2009).
* * *
For the foregoing reasons, the judgment of the United
States Court of Appeals for the District of Columbia Cir-
cuit is reversed.
It is so ordered.
 Cite as: 575 U. S. ____ (2015) 1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–1041 and 13–1052
_________________

THOMAS E. PEREZ, SECRETARY OF LABOR, ET AL.,
PETITIONERS
13–1041 v.
MORTGAGE BANKERS ASSOCIATION ET AL.

JEROME NICKOLS, ET AL., PETITIONERS
13–1052 v.
MORTGAGE BANKERS ASSOCIATION
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 9, 2015]

JUSTICE ALITO, concurring in part and concurring in the
judgment.
I join the opinion of the Court except for Part III–B. I
agree that the doctrine of Paralyzed Veterans of America v.
D. C. Arena L. P., 117 F. 3d 579 (CADC 1997), is incom-
patible with the Administrative Procedure Act. The crea-
tion of that doctrine may have been prompted by an un-
derstandable concern about the aggrandizement of the
power of administrative agencies as a result of the com-
bined effect of (1) the effective delegation to agencies by
Congress of huge swaths of lawmaking authority, (2) the
exploitation by agencies of the uncertain boundary be-
tween legislative and interpretive rules, and (3) this
Court’s cases holding that courts must ordinarily defer to
an agency’s interpretation of its own ambiguous regula-
tions. See Bowles v. Seminole Rock & Sand Co., 325 U. S.
410 (1945). I do not dismiss these concerns, but the Para-
lyzed Veterans doctrine is not a viable cure for these prob-
2 PEREZ v. MORTGAGE BANKERS ASSN.

Opinion of ALITO, J.

lems. At least one of the three factors noted above, how-
ever, concerns a matter that can be addressed by this
Court. The opinions of JUSTICE SCALIA and JUSTICE
THOMAS offer substantial reasons why the Seminole Rock
doctrine may be incorrect. See also Christopher v.
SmithKline Beecham Corp., 567 U. S. ___, ___–___ (2012)
(slip op., at 13–14) (citing, inter alia, Manning, Constitu-
tional Structure and Judicial Deference to Agency Inter-
pretations of Agency Rules, 96 Colum. L. Rev. 612 (1996)).
I await a case in which the validity of Seminole Rock may
be explored through full briefing and argument.
 Cite as: 575 U. S. ____ (2015) 1

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–1041 and 13–1052
_________________

THOMAS E. PEREZ, SECRETARY OF LABOR, ET AL.,
PETITIONERS
13–1041 v.
MORTGAGE BANKERS ASSOCIATION ET AL.

JEROME NICKOLS, ET AL., PETITIONERS
13–1052 v.
MORTGAGE BANKERS ASSOCIATION
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 9, 2015]

JUSTICE SCALIA, concurring in the judgment.
I agree with the Court’s decision, and all of its reasoning
demonstrating the incompatibility of the D. C. Circuit’s
Paralyzed Veterans holding with the Administrative Pro-
cedure Act. Paralyzed Veterans of Am. v. D. C. Arena L.P.,
117 F. 3d 579 (CADC 1997). I do not agree, however, with
the Court’s portrayal of the result it produces as a vindica-
tion of the balance Congress struck when it “weighed the
costs and benefits of placing more rigorous . . . restrictions
on the issuance of interpretive rules.” Ante, at 9. That
depiction is accurate enough if one looks at this case in
isolation. Considered alongside our law of deference to
administrative determinations, however, today’s decision
produces a balance between power and procedure quite
different from the one Congress chose when it enacted the
APA.
“The [APA] was framed against a background of rapid
expansion of the administrative process as a check upon
2 PEREZ v. MORTGAGE BANKERS ASSN.

SCALIA, J., concurring in judgment

administrators whose zeal might otherwise have carried
them to excesses not contemplated in legislation creating
their offices.” United States v. Morton Salt Co., 338 U. S.
632, 644 (1950). The Act guards against excesses in rule-
making by requiring notice and comment. Before an
agency makes a rule, it normally must notify the public of
the proposal, invite them to comment on its shortcomings,
consider and respond to their arguments, and explain its
final decision in a statement of the rule’s basis and pur-
pose. 5 U. S. C. §553(b)–(c); ante, at 2.
The APA exempts interpretive rules from these re-
quirements. §553(b)(A). But this concession to agencies
was meant to be more modest in its effects than it is today.
For despite exempting interpretive rules from notice and
comment, the Act provides that “the reviewing court
shall . . . interpret constitutional and statutory provisions,
and determine the meaning or applicability of the terms of
an agency action.” §706 (emphasis added). The Act thus
contemplates that courts, not agencies, will authoritatively
resolve ambiguities in statutes and regulations. In such
a regime, the exemption for interpretive rules does not add
much to agency power. An agency may use interpretive
rules to advise the public by explaining its interpretation
of the law. But an agency may not use interpretive rules
to bind the public by making law, because it remains the
responsibility of the court to decide whether the law
means what the agency says it means.
Heedless of the original design of the APA, we have
developed an elaborate law of deference to agencies’ inter-
pretations of statutes and regulations. Never mentioning
§706’s directive that the “reviewing court . . . interpret . . .
statutory provisions,” we have held that agencies may
authoritatively resolve ambiguities in statutes. Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U. S. 837, 842–843 (1984). And never mentioning
§706’s directive that the “reviewing court . . . determine
 Cite as: 575 U. S. ____ (2015) 3

SCALIA, J., concurring in judgment

the meaning or applicability of the terms of an agency
action,” we have—relying on a case decided before the
APA, Bowles v. Seminole Rock & Sand Co., 325 U. S. 410
(1945)—held that agencies may authoritatively resolve
ambiguities in regulations. Auer v. Robbins, 519 U. S.
452, 461 (1997).
By supplementing the APA with judge-made doctrines
of deference, we have revolutionized the import of inter-
pretive rules’ exemption from notice-and-comment rule-
making. Agencies may now use these rules not just to
advise the public, but also to bind them. After all, if an
interpretive rule gets deference, the people are bound to
obey it on pain of sanction, no less surely than they are
bound to obey substantive rules, which are accorded simi-
lar deference. Interpretive rules that command deference
do have the force of law.
The Court’s reasons for resisting this obvious point
would not withstand a gentle breeze. Even when an agen-
cy’s interpretation gets deference, the Court argues, “it is
the court that ultimately decides whether [the text] means
what the agency says.” Ante, at 10–11, n. 4. That is not
quite so. So long as the agency does not stray beyond the
ambiguity in the text being interpreted, deference compels
the reviewing court to “decide” that the text means what
the agency says. The Court continues that “deference is
not an inexorable command in all cases,” because (for
example) it does not apply to plainly erroneous interpreta-
tions. Ibid. True, but beside the point. Saying all inter-
pretive rules lack force of law because plainly erroneous
interpretations do not bind courts is like saying all sub-
stantive rules lack force of law because arbitrary and
capricious rules do not bind courts. Of course an interpre-
tive rule must meet certain conditions before it gets defer-
ence—the interpretation must, for instance, be reason-
able—but once it does so it is every bit as binding as a
substantive rule. So the point stands: By deferring to
4 PEREZ v. MORTGAGE BANKERS ASSN.

SCALIA, J., concurring in judgment

interpretive rules, we have allowed agencies to make
binding rules unhampered by notice-and-comment
procedures.
The problem is bad enough, and perhaps insoluble if
Chevron is not to be uprooted, with respect to interpretive
rules setting forth agency interpretation of statutes. But
an agency’s interpretation of its own regulations is an-
other matter. By giving that category of interpretive rules
Auer deference, we do more than allow the agency to make
binding regulations without notice and comment. Because
the agency (not Congress) drafts the substantive rules
that are the object of those interpretations, giving them
deference allows the agency to control the extent of its
notice-and-comment-free domain. To expand this domain,
the agency need only write substantive rules more
broadly and vaguely, leaving plenty of gaps to be filled in
later, using interpretive rules unchecked by notice and
comment. The APA does not remotely contemplate this
regime.
Still and all, what are we to do about the problem? The
Paralyzed Veterans doctrine is a courageous (indeed,
brazen) attempt to limit the mischief by requiring an
interpretive rule to go through notice and comment if it
revises an earlier definitive interpretation of a regulation.
That solution is unlawful for the reasons set forth in the
Court’s opinion: It contradicts the APA’s unqualified ex-
emption of interpretive rules from notice-and-comment
rulemaking.
But I think there is another solution—one unavailable
to the D. C. Circuit since it involves the overruling of one
this Court’s decisions (that being even a greater fault than
merely ignoring the APA). As I have described elsewhere,
the rule of Chevron, if it did not comport with the APA, at
least was in conformity with the long history of judicial
review of executive action, where “[s]tatutory ambiguities
. . . were left to reasonable resolution by the Executive.”
 Cite as: 575 U. S. ____ (2015) 5

SCALIA, J., concurring in judgment

United States v. Mead Corp., 533 U. S. 218, 243 (2001)
(SCALIA, J., dissenting). I am unaware of any such history
justifying deference to agency interpretations of its own
regulations. And there are weighty reasons to deny a
lawgiver the power to write ambiguous laws and then be
the judge of what the ambiguity means. See Decker v.
Northwest Environmental Defense Center, 568 U. S. ___,
___–___ (2013) (SCALIA, J., concurring in part and dissent-
ing in part) (slip op., at 1–7). I would therefore restore the
balance originally struck by the APA with respect to an
agency’s interpretation of its own regulations, not by
rewriting the Act in order to make up for Auer, but by
abandoning Auer and applying the Act as written. The
agency is free to interpret its own regulations with or
without notice and comment; but courts will decide—with
no deference to the agency—whether that interpretation is
correct.
 Cite as: 575 U. S. ____ (2015) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–1041 and 13–1052
_________________

THOMAS E. PEREZ, SECRETARY OF LABOR, ET AL.,
PETITIONERS
13–1041 v.
MORTGAGE BANKERS ASSOCIATION ET AL.

JEROME NICKOLS, ET AL., PETITIONERS
13–1052 v.
MORTGAGE BANKERS ASSOCIATION
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 9, 2015]

JUSTICE THOMAS, concurring in the judgment.
I concur in the Court’s holding that the doctrine first
announced in Paralyzed Veterans of America v. D. C.
Arena L. P., 117 F. 3d 579 (CADC 1997), is inconsistent
with the Administrative Procedure Act (APA), 5 U. S. C.
§551 et seq., and must be rejected. An agency’s substantial
revision of its interpretation of a regulation does not
amount to an “amendment” of the regulation as that word
is used in the statute.
I write separately because these cases call into question
the legitimacy of our precedents requiring deference to
administrative interpretations of regulations. That line of
precedents, beginning with Bowles v. Seminole Rock &
Sand Co., 325 U. S. 410 (1945), requires judges to defer to
agency interpretations of regulations, thus, as happened
in these cases, giving legal effect to the interpretations
rather than the regulations themselves. Because this
doctrine effects a transfer of the judicial power to an exec-
2 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

utive agency, it raises constitutional concerns. This line of
precedents undermines our obligation to provide a judicial
check on the other branches, and it subjects regulated
parties to precisely the abuses that the Framers sought to
prevent.
I
The doctrine of deference to an agency’s interpretation
of regulations is usually traced back to this Court’s deci-
sion in Seminole Rock, supra, which involved the interpre-
tation of a war-time price control regulation, id., at 411.
Along with a general price freeze, the Administrator of the
Office of Price Administration had promulgated special-
ized regulations governing the maximum price for differ-
ent commodities. Id., at 413. When the Administrator
brought an enforcement action against a manufacturer of
crushed stone, the manufacturer challenged the Adminis-
trator’s interpretation of his regulations.
The lower courts agreed with the manufacturer’s inter-
pretation, id., at 412–413, but this Court reversed. In
setting out the approach it would apply to the case, the
Court announced—without citation or explanation—that
an administrative interpretation of an ambiguous regula-
tion was entitled to “controlling weight”:
“Since this involves an interpretation of an adminis-
trative regulation a court must necessarily look to the
administrative construction of the regulation if the
meaning of the words used is in doubt. The intention
of Congress or the principles of the Constitution in
some situations may be relevant in the first instance
in choosing between various constructions. But the
ultimate criterion is the administrative interpreta-
tion, which becomes of controlling weight unless it is
plainly erroneous or inconsistent with the regulation.”
Id., at 413–414.
 Cite as: 575 U. S. ____ (2015) 3

THOMAS, J., concurring in judgment

The Court then concluded that the rule “clearly” favored
the Administrator’s interpretation, rendering this discus-
sion dictum. Id., at 415–417.
From this unsupported rule developed a doctrine of
deference that has taken on a life of its own.1 It has been
broadly applied to regulations issued by agencies across a
broad spectrum of subjects. See, e.g., Robertson v. Methow
Valley Citizens Council, 490 U. S. 332, 358–359 (1989)
(forests); Ehlert v. United States, 402 U. S. 99, 104–105
(1971) (Selective Service); INS v. Stanisic, 395 U. S. 62, 72
(1969) (deportation); Udall v. Tallman, 380 U. S. 1, 16–17
(1965) (oil and gas leases). It has even been applied to an
agency’s interpretation of another agency’s regulations.
See Pauley v. BethEnergy Mines, Inc., 501 U. S. 680, 696–
699 (1991). And, it has been applied to an agency inter-
pretation that was inconsistent with a previous interpre-
tation of the same regulation. See Long Island Care at
Home, Ltd. v. Coke, 551 U. S. 158, 170–171 (2007). It has
been applied to formal and informal interpretations alike,
including those taken during litigation. See Auer v. Rob-
bins, 519 U. S. 452, 462 (1997). Its reasoning has also
been extended outside the context of traditional agency
regulations into the realm of criminal sentencing. See
Stinson v. United States, 508 U. S. 36, 44–45 (1993) (con-
cluding that the Sentencing Commission’s commentary on
its Guidelines is analogous to an agency interpretation of
its own regulations, entitled to Seminole Rock deference).
The Court has even applied the doctrine to an agency
interpretation of a regulation cast in such vague aspira-
tional terms as to have no substantive content. See
——————
1 Although the Court has appeared to treat our agency deference

regimes as precedents entitled to stare decisis effect, some scholars
have noted that they might instead be classified as interpretive tools.
See, e.g., C. Nelson, Statutory Interpretation 701 (2011). Such tools
might not be entitled to such effect. Because resolution of that issue is
not necessary to my conclusion here, I leave it for another day.
4 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512–513
(1994); see also id., at 518 (THOMAS, J., dissenting).
On this steady march toward deference, the Court only
once expressly declined to apply Seminole Rock deference
on the ground that the agency’s interpretation was plainly
erroneous.2 In that case, we were faced with the predict-
able consequence of this line of precedents: An agency
sought deference to an opinion letter that interpreted a
permissive regulation as mandatory. See Christensen v.
Harris County, 529 U. S. 576, 588 (2000). We rejected that
request for deference as an effort, “under the guise of
interpreting a regulation, to create de facto a new regula-
tion.” Ibid. This narrow limit on the broad deference
given the agency interpretations, though sound, could not
save a doctrine that was constitutionally infirm from the
start. Seminole Rock was constitutionally suspect from
the start, and this Court’s repeated extensions of it have
only magnified the effects and the attendant concerns.

——————
2 The Court has also twice expressly found Seminole Rock deference

inapplicable for other reasons. Christopher v. SmithKline Beecham
Corp., 567 U. S. ___, ___–___ (2012) (slip op., at 13–14) (“[W]here, as
here, an agency’s announcement of its interpretation is preceded by a
very lengthy period of conspicuous inaction, the potential for unfair
surprise is acute. . . . [W]hatever the general merits of Auer deference,
it is unwarranted here”); Gonzales v. Oregon, 546 U. S. 243, 256–257
(2006) (“In our view Auer and the standard of deference it accords to an
agency are inapplicable here. . . . The language the Interpretive Rule
addresses comes from Congress, not the Attorney General, and the near
equivalence of the statute and regulation belies the Government’s
argument for Auer deference”).
Occasionally, Members of this Court have argued in separate writ-
ings that the Court failed appropriately to apply Seminole Rock defer-
ence, but in none of those cases did the majority opinions of the Court
expressly refuse to do so. See Ballard v. Commissioner, 544 U. S. 40
(2005); Allentown Mack Sales & Service, Inc. v. NLRB, 522 U. S. 359
(1998); Director, Office of Workers’ Compensation Programs v. Green-
wich Collieries, 512 U. S. 267 (1994); United States v. Swank, 451 U. S.
571 (1981); Peters v. Hobby, 349 U. S. 331 (1955).
 Cite as: 575 U. S. ____ (2015)
5

THOMAS, J., concurring in judgment

II

We have not always been vigilant about protecting the
structure of our Constitution. Although this Court has
repeatedly invoked the “separation of powers” and “the
constitutional system of checks and balances” as core
principles of our constitutional design, essential to the
protection of individual liberty, see, e.g., Stern v. Marshall,
564 U. S. ___, ___–___ (2011) (slip op., at 16–17) (internal
quotation marks omitted), it has also endorsed a “more
pragmatic, flexible approach” to that design when it has
seemed more convenient to permit the powers to be mixed,
see, e.g., Nixon v. Administrator of General Services, 433
U. S. 425, 442 (1977). As the history shows, that approach
runs the risk of compromising our constitutional
structure.
A
The Constitution’s particular blend of separated powers
and checks and balances was informed by centuries of
political thought and experiences. See M. Vile, Constitu-
tionalism and the Separation of Powers 38, 168–169 (2d
ed. 1998) (Vile). Though the theories of the separation of
powers and checks and balances have roots in the ancient
world, events of the 17th and 18th centuries played a
crucial role in their development and informed the men
who crafted and ratified the Constitution.
Over a century before our War of Independence, the
English Civil War catapulted the theory of the separation
of powers to prominence. As political theorists of the day
witnessed the conflict between the King and Parliament,
and the dangers of tyrannical government posed by each,
they began to call for a clear division of authority between
the two. Id., at 44–45, 48–49. A 1648 work titled The
Royalist’s Defence offered perhaps the first extended
account of the theory of the separation of powers:
“[W]hilst the Supreamacy, the Power to Judge the Law,
6 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

and Authority to make new Lawes, are kept in severall
hands, the known Law is preserved, but united, it is van-
ished, instantly thereupon, and Arbytrary and Tyrannicall
power is introduced.” The Royalist’s Defence 80 (1648)
(italics in original).
John Locke and Baron de Montesquieu endorsed and
expanded on this concept. See Vile 63–64. They agreed
with the general theory set forth in The Royalist’s De-
fence, emphasizing the need for a separation of powers to
protect individual liberty. J. Locke, Second Treatise of
Civil Government §§143–144, p. 72 (J. Gough ed. 1947);
Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152
(O. Piest ed., T. Nugent transl. 1949). But they also advo-
cated a system of checks and balances to reinforce that
separation. Vile 72–73, 102. For instance, they agreed
that the executive should have the power to assemble and
dismiss the legislature and to consent to laws passed by it.
See Locke, supra, §§151, 156, at 75, 77–78; Montesquieu,
Spirit of the Laws, at 157, 159. Montesquieu warned that
“power should be a check to power” lest the legislature
“arrogate to itself what authority it pleased . . . [and] soon
destroy all the other powers.” Id., at 150, 157.
The experience of the States during the period between
the War of Independence and the ratification of the Con-
stitution confirmed the wisdom of combining these theo-
ries. Although many State Constitutions of the time
included language unequivocally endorsing the separation
of powers, they did not secure that separation with checks
and balances, Vile 147, and actively placed traditional
executive and judicial functions in the legislature,
G. Wood, The Creation of the American Republic 1776–
1787, pp. 155–156 (1969). Under these arrangements,
state legislatures arrogated power to themselves and
began to confiscate property, approve the printing of paper
money, and suspend the ordinary means for the recovery
 Cite as: 575 U. S. ____ (2015) 7

THOMAS, J., concurring in judgment

of debts. Id., at 403–409.3
When the Framers met for the Constitutional Conven-
tion, they understood the need for greater checks and
balances to reinforce the separation of powers. As Madi-
son remarked, “experience has taught us a distrust” of the
separation of powers alone as “a sufficient security to each
[branch] [against] encroachments of the others.” 2 Re-
cords of the Federal Convention of 1787, p. 77 (M. Farrand
rev. 1966). “[I]t is necessary to introduce such a balance of
powers and interests, as will guarantee the provisions on
paper.” Ibid. The Framers thus separated the three main
powers of Government—legislative, executive, and judi-
cial—into the three branches created by Articles I, II, and
III. But they also created checks and balances to reinforce
that separation. For example, they gave Congress specific
enumerated powers to enact legislation, Art. I, §8, but
gave the President the power to veto that legislation,
subject to congressional override by a supermajority vote,
Art. I, §7, cls. 2, 3. They gave the President the power to
appoint principal officers of the United States, but gave
the Senate the power to give advice and consent to those
appointments. Art. II, §2, cl. 2. They gave the House and
Senate the power to agree to adjourn for more than three
days, Art. I, §5, cl. 4, but gave the President the power, “in
Case of Disagreement between them,” to adjourn the
Congress “to such Time as he shall think proper.” Art. II,
§3, cl. 3. During the ratification debates, Madison argued
that this structure represented “the great security” for
liberty in the Constitution. The Federalist No. 51, p. 321
——————
3 The practices of the time can perhaps best be summarized by the

following commentary from a contemporaneous magazine: “[S]o many
legal infractions of sacred right—so many public invasions of private
property—so many wanton abuses of legislative powers!” Giles Hickory
(Noah Webster), Government, The American Magazine, Mar. 1788, p.
206.
8 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

(C. Rossiter ed. 1961) (J. Madison).
To the Framers, the separation of powers and checks
and balances were more than just theories. They were
practical and real protections for individual liberty in the
new Constitution. See Mistretta v. United States, 488
U. S. 361, 426 (1989) (SCALIA, J., dissenting) (“[The Con-
stitution] is a prescribed structure, a framework, for the
conduct of government. In designing that structure, the
Framers themselves considered how much commingling [of
governmental powers] was, in the generality of things,
acceptable, and set forth their conclusions in the docu-
ment”). The Judiciary—no less than the other two
branches—has an obligation to guard against deviations
from those principles. The Seminole Rock line of prece-
dent is one such deviation.
B
Seminole Rock raises two related constitutional con-
cerns. It represents a transfer of judicial power to the
Executive Branch, and it amounts to an erosion of the
judicial obligation to serve as a “check” on the political
branches.
1
When a party properly brings a case or controversy to
an Article III court, that court is called upon to exercise
the “judicial Power of the United States.” Art. III, §1. For
the reasons I explain in this section, the judicial power, as
originally understood, requires a court to exercise its
independent judgment in interpreting and expounding
upon the laws.
Those who ratified the Constitution knew that legal
texts would often contain ambiguities. See generally
Molot, The Judicial Perspective in the Administrative
State: Reconciling Modern Doctrines of Deference with the
Judiciary’s Structural Role, 53 Stan. L. Rev. 1, 20–21, and
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THOMAS, J., concurring in judgment

n. 66 (2000); Nelson, Originalism and Interpretive Con-
ventions, 70 U. Chi. L. Rev. 519, 525–526 (2003). As
James Madison explained, “All new laws, though penned
with the greatest technical skill and passed on the fullest
and most mature deliberation, are considered as more or
less obscure and equivocal . . . .” The Federalist No. 37,
at 229.
The judicial power was understood to include the power
to resolve these ambiguities over time. See ibid. Alexan-
der Hamilton lauded this power, arguing that “[t]he inter-
pretation of the laws is the proper and peculiar province of
the courts.” Id., No. 78, at 467. It is undoubtedly true
that the other branches of Government have the authority
and obligation to interpret the law, but only the judicial
interpretation would be considered authoritative in a
judicial proceeding. Vile 360.
Although the Federalists and Anti-Federalists engaged
in a public debate about this interpretive power, that
debate centered on the dangers inherent in the power, not
on its allocation under the Constitution. See, e.g., Letters
from The Federal Farmer XV (Jan. 18, 1788), in 2 The
Complete Anti-Federalist 315–316 (H. Storing ed. 1981)
(arguing that the interpretive power made the Judiciary
the most dangerous branch). Writing as “Brutus,” one
leading anti-Federalist argued that judges “w[ould] not
confine themselves to any fixed or established rules, but
w[ould] determine, according to what appears to them, the
reason and spirit of the constitution.” Essays of Brutus
(Jan. 31, 1788), in 2 id., at 420. The Federalists rejected
these arguments, assuring the public that judges would be
guided “by strict rules and precedents which serve to
define and point out their duty in every particular case
that comes before them.” The Federalist No. 78, at 471 (A.
Hamilton). Those rules included principles of interpreta-
tion that had been set out by jurists for centuries. See,
e.g., 2 S. von Pufendorf, De Officio Hominis Et Civis Juxta
10 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

Legem Naturalem Libri Duo 83–86 (1682) (F. Moore
transl. 1927); see also 1 W. Blackstone, Commentaries on
the Laws of England 59–61 (1765).
One of the key elements of the Federalists’ arguments in
support of the allocation of power to make binding inter-
pretations of the law was that Article III judges would
exercise independent judgment. Although “judicial inde-
pendence” is often discussed in terms of independence
from external threats, the Framers understood the concept
to also require independence from the “internal threat” of
“human will.” P. Hamburger, Law and Judicial Duty 507,
508 (2008); see also The Federalist No. 78, at 465 (A.
Hamilton) (“The judiciary . . . may truly be said to have
neither FORCE nor WILL but merely judgment . . . ”).
Independent judgment required judges to decide cases in
accordance with the law of the land, not in accordance
with pressures placed upon them through either internal
or external sources. Internal sources might include per-
sonal biases, while external sources might include pres-
sure from the political branches, the public, or other
interested parties. See Hamburger, supra, at 508–521.
The Framers made several key decisions at the Conven-
tion with these pressures in mind. For example, they
rejected proposals to include a federal council of revision
after several participants at the Convention expressed
concern that judicial involvement in such a council would
foster internal biases. Rufus King of Maryland, for exam-
ple, asserted that “the Judges ought to be able to expound
the law as it should come before them, free from the bias
of having participated in its formation.” 1 Records of the
Federal Convention of 1787, at 98. Alexander Hamilton
repeated these concerns in The Federalist, arguing that
“the judges, who are to be interpreters of the law, might
receive an improper bias from having given a previous
opinion in their revisionary capacities” or “be induced to
embark too far in the political views of [the Executive]”
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THOMAS, J., concurring in judgment

from too much association with him. The Federalist No.
73, at 446; see also Hamburger, supra, at 508–512.
The Framers also created structural protections in the
Constitution to free judges from external influences. They
provided, for example, that judges should “hold their
Offices during good Behaviour” and receive “a Compensa-
tion, which shall not be diminished during their Continu-
ance in Office.” Art. III, §1. Hamilton noted that such
unequivocal language had been shown necessary by the
experience of the States, where similar state constitutional
protections for judges had not been “sufficiently definite
to preclude legislative evasions” of the separation of the
judicial power. The Federalist No. 79, at 472. Because
“power over a man’s subsistence amounts to a power over
his will,” he argued that Article III’s structural protections
would help ensure that judges fulfilled their constitutional
role. Ibid. (emphasis deleted).
The Framers made the opposite choice for legislators
and the Executive. Instead of insulating them from exter-
nal pressures, the Constitution tied them to those pres-
sures. It provided for election of Members of the House of
Representatives every two years, Art. I, §2, cl. 1; and
selection of Members of the Senate every six years, Art. I,
§3, cl. 1. It also provided for the President to be subject to
election every four years. Art. II, §1, cl. 1. “The President
is [thus] directly dependent on the people, and since there
is only one President, he is responsible. The people know
whom to blame . . . .” See Morrison v. Olson, 487 U. S.
654, 729 (1988) (SCALIA, J., dissenting). To preserve that
accountability, we have held that executive officers must
be subject to removal by the President to ensure account-
ability within the Executive Branch. See Free Enterprise
Fund v. Public Company Accounting Oversight Bd., 561
U. S. 477, 495 (2010); see also Morrison, supra, at 709
(opinion of SCALIA, J.) (“It is not for us to determine, and
we have never presumed to determine, how much of the
12 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

purely executive powers of government must be within the
full control of the President. The Constitution prescribes
that they all are”).
Given these structural distinctions between the branches,
it is no surprise that judicial interpretations are defini-
tive in cases and controversies before the courts. Courts
act as “an intermediate body between the people and the
legislature, in order, among other things, to keep the
latter within the limits assigned to their authority.” Fed-
eralist No. 78, at 467 (A. Hamilton). The Legislature and
Executive may be swayed by popular sentiment to aban-
don the strictures of the Constitution or other rules of law.
But the Judiciary, insulated from both internal and exter-
nal sources of bias, is duty bound to exercise independent
judgment in applying the law.
Interpreting agency regulations calls for that exercise of
independent judgment. Substantive regulations have the
force and effect of law. See, e.g., United States v. Mead
Corp., 533 U. S. 218, 231–232 (2001).4 Agencies and pri-
——————
4 These cases also raise constitutional questions about the distinction

in administrative law between “substantive” (or “legislative”) and
interpretative rules. The United States Court of Appeals for the D. C.
Circuit has defined a legislative rule as “[a]n agency action that pur-
ports to impose legally binding obligations or prohibitions on regulated
parties” and an interpretative rule as “[a]n agency action that merely
interprets a prior statute or regulation, and does not itself purport to
impose new obligations or prohibitions or requirements on regulated
parties.” National Mining Assn. v. McCarthy, 758 F. 3d 243, 251–252
(2014). And our precedents make clear that administrative agencies
must exercise only executive power in promulgating these rules.
Arlington v. FCC, 569 U. S. ___, ___, n. 4 (2013) (slip op., at 13, n. 4).
But while it is easy to see the promulgation of interpretative rules as
an “executive” function—executive officials necessarily interpret the
laws they enforce—it is difficult to see what authority the President
has “to impose legally binding obligations or prohibitions on regulated
parties.” That definition suggests something much closer to the legisla-
tive power, which our Constitution does not permit the Executive to
exercise in this manner. Because these troubling questions are not
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THOMAS, J., concurring in judgment

vate parties alike can use these regulations in proceedings
against regulated parties. See, e.g., Christopher v.
SmithKline Beecham Corp., 567 U. S. ___, ___–___ (2012)
(slip op., at 6–7) (private party relying on Department of
Labor regulations); FCC v. Fox Television Stations, Inc.,
567 U. S. ___, ___ (2012) (slip op., at 6) (agency issuing
notices of liability under regulations). Just as it is critical
for judges to exercise independent judgment in applying
statutes, it is critical for judges to exercise independent
judgment in determining that a regulation properly covers
the conduct of regulated parties. Defining the legal mean-
ing of the regulation is one aspect of that determination.
Seminole Rock deference, however, precludes judges
from independently determining that meaning. Rather
than judges’ applying recognized tools of interpretation to
determine the best meaning of a regulation, this doctrine
demands that courts accord “controlling weight” to the
agency interpretation of a regulation, subject only to the
narrow exception for interpretations that are plainly
erroneous or inconsistent with the regulation. That defer-
ence amounts to a transfer of the judge’s exercise of inter-
pretive judgment to the agency. See 1 S. Johnson, Dic-
tionary of the English Language 499 (4th ed. 1773)
(defining “[d]efer” as “to leave to another’s judgment”).
But the agency, as part of the Executive Branch, lacks the
structural protections for independent judgment adopted
by the Framers, including the life tenure and salary pro-
tections of Article III. Because the agency is thus not
properly constituted to exercise the judicial power under
the Constitution, the transfer of interpretive judgment
raises serious separation-of-powers concerns.

——————

directly implicated here, I leave them for another case. See Department

of Transportation v. Association of American Railroads, ante, at 19–22

(THOMAS, J., concurring in judgment).

14 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

2
Seminole Rock is constitutionally questionable for an
additional reason: It undermines the judicial “check” on
the political branches. Unlike the Legislative and Execu-
tive Branches, each of which possesses several political
checks on the other, the Judiciary has one primary check
on the excesses of political branches. That check is the
enforcement of the rule of law through the exercise of
judicial power.
Judges have long recognized their responsibility to
apply the law, even if they did not conceive of it as a
“check” on political power. During the 17th century, for
example, King James I sought to pressure Chief Justice
Coke to affirm the lawfulness of his efforts to raise reve-
nue without the participation of Parliament. Hamburger,
Law and Judicial Duty, at 200–201. Coke sought time to
confer with his fellow jurists to “make an advised answer
according to law and reason.” Case of Proclamations, 12
Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611). But
the King’s representative, Lord Chancellor Ellesmere,
responded that “he would advise the Judges to maintain
the power and prerogative of the King” and suggested
that, “in cases in which there is no authority and prece-
dent,” the judiciary should “leave it to the King to order in
it according to his wisdom.” Ibid. Coke famously re-
sponded, “[T]he King cannot change any part of the com-
mon law, nor create any offence by his proclamation,
which was not an offence before, without Parliament.”
Ibid. When James I later attempted to do just that, Coke
declared the proclamations “ ‘utterly against Law and
reason, and for that void.’ ” Hamburger, supra, at 202.
The Framers expected Article III judges to engage in
similar efforts, by applying the law as a “check” on the
excesses of both the Legislative and Executive Branches.
See, e.g., 3 J. Elliot, Debates in the Several Conventions
on the Adoption of the Federal Constitution 553 (1863) (J.
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THOMAS, J., concurring in judgment

Marshall) (“If [the Government of the United States] make
a law not warranted by any of the powers enumerated, it
would be considered by the judges as an infringement of
the Constitution which they are to guard. . . . They would
declare it void”); see also Vile 174. The Framers “contem-
plated [the Constitution], as a rule for the government of
courts, as well as of the legislature.” Marbury v. Madison,
1 Cranch 137, 179–180 (1803). Thus, if a case involved a
conflict between a law and the Constitution, judges would
have a duty “to adhere to the latter and disregard the
former.” The Federalist No. 78, at 468 (A. Hamilton); see
also Marbury, 1 Cranch, at 178. Similarly, if a case in-
volved an executive effort to extend a law beyond its
meaning, judges would have a duty to adhere to the law
that had been properly promulgated under the Constitu-
tion. Cf. id., at 157–158 (considering the scope of the
President’s constitutional power of appointment). As this
Court said long ago, “[T]he particular phraseology of the
constitution of the United States confirms and strengthens
the principle, supposed to be essential to all written con-
stitutions, that a law repugnant to the constitution is void;
and that courts, as well as other departments, are bound
by that instrument.” Id., at 180.
Article III judges cannot opt out of exercising their
check. As we have long recognized, “[t]he Judiciary has a
responsibility to decide cases properly before it, even those
it ‘would gladly avoid.’ ” Zivotofsky v. Clinton, 566 U. S.
___, ___ (2012) (slip op., at 5) (quoting Cohens v. Virginia,
6 Wheat. 264, 404 (1821)). This responsibility applies not
only to constitutional challenges to particular statutes,
see, e.g., Shelby County v. Holder, 570 U. S. ___, ___ (2013)
(slip op., at 2), including those based on the separation of
powers, Free Enterprise Fund, 561 U. S., at 501–502, but
also to more routine questions about the best interpreta-
tion of statutes, see, e.g., Whitfield v. United States, 574
U. S. ___, ___–___ (2015) (slip op., at 2–3), or the compati-
16 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

bility of agency actions with enabling statutes, Utility Air
Regulatory Group v. EPA, 573 U. S. ___, ___ (2014) (slip
op., at 10). In each case, the Judiciary is called upon to
exercise its independent judgment and apply the law.
But we have not consistently exercised the judicial
check with respect to administrative agencies. Even
though regulated parties have repeatedly challenged
agency interpretations as inconsistent with existing regu-
lations, we have just as repeatedly declined to exercise
independent judgment as to those claims. Instead, we
have deferred to the executive agency that both promul-
gated the regulations and enforced them. Although an
agency’s interpretation of a regulation might be the best
interpretation, it also might not. When courts refuse even
to decide what the best interpretation is under the law,
they abandon the judicial check. That abandonment
permits precisely the accumulation of governmental pow-
ers that the Framers warned against. See The Federalist
No. 47, at 302 (J. Madison).
C
This accumulation of governmental powers allows agen-
cies to change the meaning of regulations at their discre-
tion and without any advance notice to the parties. It is
precisely this problem that the United States Court of
Appeals for the D. C. Circuit attempted to address by
requiring agencies to undertake notice and comment
procedures before substantially revising definitive inter-
pretations of regulations. Paralyzed Veterans, supra.
Though legally erroneous, the Court of Appeals’ reasoning
was practically sound. When courts give “controlling
weight” to an administrative interpretation of a regula-
tion—instead of to the best interpretation of it—they
effectively give the interpretation—and not the regula-
tion—the force and effect of law. To regulated parties, the
new interpretation might as well be a new regulation.
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THOMAS, J., concurring in judgment

These cases provide a classic example of the problem.
The Fair Labor Standards Act of 1938 establishes federal
minimum wage and overtime requirements, but exempts
from these requirements “any employee engaged in a bona
fide executive, administrative, or professional capac-
ity . . . , or in the capacity of outside salesman (as such
terms are defined and delimited from time to time by
regulations of the Secretary).” 29 U. S. C. §213(a)(1). The
Department of Labor has accordingly promulgated regula-
tions providing that “an employee whose primary duty is
selling financial products does not qualify for the adminis-
trative exemption.” 29 CFR §541.203(b) (2015).
Unsure whether certain mortgage-loan officers qualified
as employees whose primary duty is selling financial
products, the Mortgage Bankers Association asked the
Department of Labor for advice. In 2006, the Department
concluded that the officers are not employees whose pri-
mary duty is selling financial products. But in 2010, the
Department reversed course, concluding exactly the oppo-
site. If courts accord “controlling weight” to both the 2006
and 2010 interpretations, the regulated entities are sub-
ject to two opposite legal rules imposed under the same
regulation.
This practice turns on its head the principle that the
United States is “a government of laws, and not of men.”
Marbury, supra, at 163. Regulations provide notice to
regulated parties in only a limited sense because their
meaning will ultimately be determined by agencies rather
than by the “strict rules and precedents” to which Alexan-
der Hamilton once referred.5
——————
5 The notice problem is exacerbated by agency departures from the

procedures established for rulemaking in the APA. Although almost all
rulemaking is today accomplished through informal notice and com-
ment, the APA actually contemplated a much more formal process for
most rulemaking. To that end, it provided for elaborate trial-like
hearings in which proponents of particular rules would introduce
18 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

III
Although this Court offered no theoretical justifica-
tion for Seminole Rock deference when announcing it, sev-
eral justifications have been proposed since. None is
persuasive.
A
Probably the most oft-recited justification for Seminole
Rock deference is that of agency expertise in administer-
ing technical statutory schemes. Under this justification,
deference to administrative agencies is necessary when a
“regulation concerns ‘a complex and highly technical regu-
latory program’ in which the identification and classifica-
tion of relevant ‘criteria necessarily require significant
expertise and entail the exercise of judgment grounded in
policy concerns.’ ” Thomas Jefferson Univ., 512 U. S., at
512.
This defense of Seminole Rock deference misidentifies
the relevant inquiry. The proper question faced by courts
in interpreting a regulation is not what the best policy
choice might be, but what the regulation means. Because
this Court has concluded that “substantive agency regula-
tions have the ‘force and effect of law,’ ” Chrysler Corp. v.

——————
evidence and bear the burden of proof in support of those proposed
rules. See 5 U. S. C. §556.
Today, however, formal rulemaking is the Yeti of administrative law.
There are isolated sightings of it in the ratemaking context, but else-
where it proves elusive. It is somewhat ironic for the Court so ada-
mantly to insist that agencies be subject to no greater procedures than
those required by the APA when we have not been adamant in requir-
ing agencies to comply with even those baseline procedures. See United
States v. Florida East Coast R. Co., 410 U. S. 224, 237–238 (1973)
(concluding that the APA’s formal procedures, which were to apply
“[w]hen rules are required by statute to be made on the record after
opportunity for an agency hearing,” §553(c), were not triggered by a
statute that permitted an agency to engage in rulemaking only “ ‘after
[a] hearing’ ”).
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THOMAS, J., concurring in judgment

Brown, 441 U. S. 281, 295 (1979), such regulations should
be interpreted like any other law. Thus, we should “as-
sum[e] that the ordinary meaning of the regulation’s
language expresses” its purpose and enforce it “according
to its terms.” See Hardt v. Reliance Standard Life Ins.
Co., 560 U. S. 242, 251 (2010) (internal quotation marks
omitted). Judges are at least as well suited as administra-
tive agencies to engage in this task. Cf. Marbury, 1
Cranch, at 177 (“It is emphatically the province and duty
of the judicial department to say what the law is”). In-
deed, judges are frequently called upon to interpret the
meaning of legal texts and are able to do so even when
those texts involve technical language. See, e.g., Barber v.
Gonzales, 347 U. S. 637, 640–643 (1954) (interpreting
deportation statute according to technical meaning).
Fundamentally, the argument about agency expertise is
less about the expertise of agencies in interpreting lan-
guage than it is about the wisdom of according agencies
broad flexibility to administer statutory schemes.6 “But
——————
6 Many decisions of this Court invoke agency expertise as a justifica-

tion for deference. This argument has its root in the support for admin-
istrative agencies that developed during the Progressive Era in this
country. The Era was marked by a move from the individualism that
had long characterized American society to the concept of a society
organized for collective action. See A. Link, Woodrow Wilson and the
Progressive Era 1910–1917, p. 1 (1954). That move also reflected a
deep disdain for the theory of popular sovereignty. As Woodrow Wilson
wrote before he attained the presidency, “Our peculiar American
difficulty in organizing administration is not the danger of losing
liberty, but the danger of not being able or willing to separate its
essentials from its accidents. Our success is made doubtful by that
besetting error of ours, the error of trying to do too much by vote.”
Wilson, The Study of Administration, 2 Pol. Sci. Q. 197, 214 (1887). In
President Wilson’s view, public criticism would be beneficial in the
formation of overall policy, but “a clumsy nuisance” in the daily life of
Government—“a rustic handling delicate machinery.” Id., at 215.
Reflecting this belief that bureaucrats might more effectively govern
the country than the American people, the progressives ushered in
20 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

policy arguments supporting even useful ‘political inven-
tions’ are subject to the demands of the Constitution which
defines powers and . . . sets out . . . how those powers are
to be exercised.” INS v. Chadha, 462 U. S. 919, 945
(1983). Even in the face of a perceived necessity, the
Constitution protects us from ourselves. New York v.
United States, 505 U. S. 144, 187–188 (1992).
B
Another oft-recited justification for Seminole Rock def-
erence is that agencies are better situated to define the
original intent behind their regulations. See Martin v.
Occupational Safety and Health Review Comm’n, 499 U. S.
144, 152–153 (1991). Under this justification, “[b]ecause
the Secretary [of Labor] promulgates th[e] standards, the
Secretary is in a better position . . . to reconstruct the
purpose of the regulations in question.” Id., at 152.
This justification rings hollow. This Court has afforded
Seminole Rock deference to agency interpretations even
when the agency was not the original drafter. See Pauley,
501 U. S., at 696–698 (applying Seminole Rock deference
to one agency’s interpretation of another agency’s regula-
tions because Congress had delegated authority to both to
administer the program). It has likewise granted Semi-
nole Rock deference to agency interpretations that are
inconsistent with interpretations adopted closer in time to
the promulgation of the regulations. See, e.g., Long Island
Care at Home, 551 U. S., at 170–171.
Even if the scope of Seminole Rock deference more
closely matched the original-drafter justification, it would
still fail. It is the text of the regulations that have the
force and effect of law, not the agency’s intent. “Citizens
——————
significant expansions of the administrative state, ultimately culminat-
ing in the New Deal. See generally M. Keller, Regulating a New
Economy: Public Policy and Economic Change in America, 1900–1933
(1990).
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THOMAS, J., concurring in judgment

arrange their affairs not on the basis of their legislators’
unexpressed intent, but on the basis of the law as it is
written and promulgated.” Zuni Public School Dist. No.
89 v. Department of Education, 550 U. S. 81, 119 (2007)
(SCALIA, J., dissenting). Cf. Wyeth v. Levine, 555 U. S.
555, 586–587 (2009) (THOMAS, J., concurring in judgment)
(noting that only “federal standards . . . that are set forth
in, or necessarily follow from, the statutory text that was
produced through the constitutionally required bicameral
and presentment procedures”—not Congress’ “purposes
and objectives”—can become the “law of the land”). “To be
governed by legislated text rather than legislators’ inten-
tions is what it means to be ‘a Government of laws, not of
men.’ ” Zuni Public School Dist. No. 89, supra, at 119
(SCALIA, J., dissenting). Only the text of a regulation goes
through the procedures established by Congress for agency
rulemaking. And it is that text on which the public is
entitled to rely. For the same reasons that we should not
accord controlling weight to postenactment expressions of
intent by individual Members of Congress, see Sullivan v.
Finkelstein, 496 U. S. 617, 631–632 (1990) (SCALIA, J.,
concurring in part), we should not accord controlling
weight to expressions of intent by administrators of
agencies.
C
A third asserted justification for Seminole Rock defer-
ence is that Congress has delegated to agencies the au-
thority to interpret their own regulations. See, e.g., Mar-
tin, 499 U. S., at 151. The theory is that, “[b]ecause
applying an agency’s regulation to complex or changing
circumstances calls upon the agency’s unique expertise
and policymaking prerogatives, . . . the power authorita-
tively to interpret its own regulations is a component of
the agency’s delegated lawmaking powers.” Ibid.
This justification fails because Congress lacks authority
22 PEREZ v. MORTGAGE BANKERS ASSN.

THOMAS, J., concurring in judgment

to delegate the power. As we have explained in an analo-
gous context, “[t]he structure of the Constitution does not
permit Congress to execute the laws; it follows that Con-
gress cannot grant to an officer under its control what it
does not possess.” Bowsher v. Synar, 478 U. S. 714, 726
(1986). Similarly, the Constitution does not empower
Congress to issue a judicially binding interpretation of the
Constitution or its laws. Lacking the power itself, it can-
not delegate that power to an agency.
To hold otherwise would be to vitiate the separation of
powers and ignore the “sense of a sharp necessity to sepa-
rate the legislative from the judicial power . . . [that]
triumphed among the Framers of the new Federal Consti-
tution.” Plaut v. Spendthrift Farm, Inc., 514 U. S. 211,
221 (1995). As this Court has explained, the “essential
balance” of the Constitution is that the Legislature is
“possessed of power to ‘prescrib[e] the rules by which the
duties and rights of every citizen are to be regulated,’ but
the power of ‘[t]he interpretation of the laws’ [is] ‘the
proper and peculiar province of the courts.’ ” Id., at 222
(citation omitted; third brackets added). Although the
Constitution imposes a duty on all three branches to
interpret the laws within their own spheres, the power to
create legally binding interpretations rests with the Judi-
ciary. See Marbury, 1 Cranch, at 177, 179–180.
D
A final proposed justification for Seminole Rock defer-
ence is that too much oversight of administrative matters
would imperil the “independence and esteem” of judges.
See, e.g., Charles Evans Hughes, Speech before the Elmira
Chamber of Commerce, May 3, 1907, in Addresses of
Charles Evans Hughes, 1906–1916, p. 185 (2d ed. 1916).
The argument goes that questions of administration are
those which “lie close to the public impatience,” id., at 186,
and thus the courts’ resolution of such questions could
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THOMAS, J., concurring in judgment

“expose them to the fire of public criticism,” id., at 187.
But this argument, which boils down to a policy judg-
ment of questionable validity, cannot vitiate the constitu-
tional allocation of powers. The Judicial Branch is sepa-
rate from the political branches for a reason: It has the
obligation to apply the law to cases and controversies that
come before it, and concerns about the popular esteem of
individual judges—or even the Judiciary as a whole—have
no place in that analysis. Our system of Government
could not long survive absent adherence to the written
Constitution that formed it.
* * *
Although on the surface these cases require only a
straightforward application of the APA, closer scrutiny
reveals serious constitutional questions lurking beneath. I
have “acknowledge[d] the importance of stare decisis to the
stability of our Nation’s legal system.” “But stare decisis is
only an ‘adjunct’ of our duty as judges to decide by our best
lights what the Constitution means.” McDonald v. Chicago,
561 U. S. 742, 812 (2010) (THOMAS, J., concurring in
part and concurring in judgment) (citation omitted). By
my best lights, the entire line of precedent beginning with
Seminole Rock raises serious constitutional questions and
should be reconsidered in an appropriate case.