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, Washington, 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). See5 U. S. C.
§553(b)(A). The United States Court of Appeals for the District of
Columbia Circuit has nevertheless 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.

															I

															A

															The APA establishes the procedures federal administrative
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 rulemaking.”
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] required,” 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 comments
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. 281–303
(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 “interpretative 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
“interpretive rule,”[ 1 ] is not further defined by
the APA, and its precise meaning is the source of much scholarly
and judicial debate. See generally Pierce, Distinguishing
Legislative 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 administers.” 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 convenience 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 Department of
Labor to determine whether mortgage-loan officers are covered by
the Fair Labor Standards Act of 1938 (FLSA),52Stat.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, however, 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 exemption for such employees is
known as the “administrative” 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-commentrulemaking. As relevant here, the 2004
regulations differed from the previous regulations in that they
contained a new section providing several examples of exempt
administrative employees. See 29 CFR §541.203. One of the examples
is “[e]mployees in the financial services industry,” 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
Department 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
representing real estate finance companies, requested a new opinion
interpreting the revised regulations. In 2006, the Department
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 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 Department’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
assumption[s] and selective and narrow analysis” of the exemption
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 challenging the
Administrator’s Interpretation. MBA contended 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
interpretation, the agency has in effect amended its rule,
something 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 thecase 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 parties’ 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 reliance on the contrary interpretation
expressed in the Department’s 2006 opinion letter. The
Administrator’s Interpretation, 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 Paralyzed 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 regulations 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
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 opportunity 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 interpretation of a substantive regulation without notice
and comment” would undermine the APA’s procedural framework. 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 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 exemption for interpretive
rules contained in §4: Because an agency is not required to use
notice-and-comment procedures to issue an initial interpretive
rule, it is also not required to use those procedures when it
amends or repeals that interpretive rule.

															B

															The straightforward reading of the APA we now adopt harmonizes
with longstanding principles of our administrative law
jurisprudence. Time and again, we have reiterated 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 maximum procedural
requirements which Congress was willing to have the courts impose
upon agencies in conducting rulemaking procedures.” Id., at
524. “Agencies are free to grant additional procedural rights in
the exercise of their discretion, but reviewing courts are
generally not free to impose them if the agencies have not chosen
to grant them.” 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. Regardless, 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 issuance 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 promulgate freely such rules—whether or not they are consistent
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 doctrine
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 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 parlance 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 longstanding 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 Administrative Procedure Act 30,
n. 3 (1947)); Skidmore v. Swift & Co. ,323
U. S. 134,140 (1944).

															MBA’s “interpretation-as-amendment” theory is particularly odd
in light of the limitations of the Paralyzed Veterans 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 interpretation 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 interpretations
should not also extend to the agency’s first
interpretation.[ 4 ]

															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.

															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 stating 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
regulations 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 interpretation 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 unilaterally 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 recourse in such situations.
Quite the opposite. The APA contains a variety of constraints on
agency decisionmaking—the arbitrary and capricious standard being
among 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 omitted); 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 interests. For that
reason, Congress sometimes includes in the statutes it drafts
safe-harbor provisions that shelter regulated 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 ]

															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
nonetheless 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 beginning, 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 interpretive rule, then its decision to
invoke the Paralyzed Veterans 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 Administrator’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. 379–396
(2009).

															*  *  *

															For the foregoing reasons, the judgment of the United States
Court of Appeals for the District of Columbia Circuit is
reversed.

															It is so ordered. Notes 1 The latter is the more common
phrasing today, and the one we use throughout this
opinion. 2 Buck, Henry, and Nickols are
petitioners in No. 13–1052 and respondents in No.
13–1041. 3 MBA did not challenge this aspect of
the District Court’s decision on appeal. 4 MBA alternatively suggests that
interpretive rules have the force of law because an agency’s
interpretation of its own regulations may be 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 deference 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 consistently held agency view” (internal quotation marks
omitted)). 5 The United States acknowledged at
argument that even in situations where a statute does not contain a
safe-harbor provision similar to the one included in the FLSA, an
agency’s ability to pursue enforcement 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. 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 incompatible with
the Administrative Procedure Act. The creation of that doctrine may
have been prompted by an understandable concern about the
aggrandizement of the power of administrative agencies as a result
of the combined 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
between 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 regulations. See Bowles v. Seminole Rock & Sand Co. ,325 U. S.
410 (1945). I do not dismiss these concerns, but the Paralyzed
Veterans doctrine is not a viable cure for these problems. At
least one of the three factors noted above, however, 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, Constitutional Structure and Judicial
Deference to Agency Interpretations 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. 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 Procedure
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
vindication 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 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 rulemaking 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 purpose.5
U. S. C. §553(b)–(c); ante, at 2.

															The APA exempts interpretive rules from these requirements.
§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
sucha 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’ interpretations 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. 837–843 (1984). And never
mentioning §706’s directive that the “reviewing court
. . . determine 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 interpretive rules’ exemption
from notice-and-comment rulemaking. 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 similar 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 agency’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 interpretations. Ibid. True, but beside the point.
Saying all interpretive rules lack force of law because
plainly erroneous interpretations do not bind courts is like saying all substantive rules lack force of law because arbitrary
and capricious rules do not bind courts. Of course an interpretive
rule must meet certain conditions before it gets deference—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 interpretive rules, we have allowed
agencies to make binding rules unhampered by
notice-and-commentprocedures.

															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 morebroadly
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 exemption 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.” 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
dissenting 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. 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 executive 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 decision in Seminole Rock, supra , which involved the interpretation 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 specialized regulations governing
the maximum price for different commodities. Id., at 413.
When the Administrator brought an enforcement action against a
manufacturer of crushed stone, the manufacturer challenged the
Administrator’s interpretation of his regulations.

															The lower courts agreed with the manufacturer’s interpretation, 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 regulation was entitled to “controlling weight”:

															“Since this involves an interpretation of an administrative
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 interpretation, which
becomes of controlling weight unless it is plainly erroneous or
inconsistent with the regulation.” Id., at 413–414.

															The Court then concluded that the rule “clearly” favored the
Administrator’s interpretation, rendering this discussion 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. 332–359 (1989)
(forests); Ehlert v. United States ,402 U. S.
99–105 (1971) (Selective Service); INS v. Stanisic ,395 U. S. 62,72 (1969) (deportation); Udall v. Tallman ,380 U. S. 1–17 (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. 680–699 (1991). And, it has been
applied to an agency interpretation that was inconsistent with a
previous interpretation of the same regulation. See Long Island
Care at Home, Ltd. v. Coke ,551 U. S. 158–171
(2007). It has been applied to formal and informal interpretations
alike, including those taken during litigation. See Auer v. Robbins ,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. 36–45 (1993)
(concluding 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 aspirational
terms as to have no substantive content. See Thomas Jefferson
Univ. v. Shalala ,512 U. S. 504–513 (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 regulation.” 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.

															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 constitutionalstructure.

															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, Constitutionalism 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,
and Authority to make new Lawes, are kept in severall
hands , the known Law is preserved , but united, it
is vanished , 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 Defence, 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 advocated 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 Constitution confirmed
the wisdom of combining these theories. 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 of debts. Id. , at 403–409.[ 3 ]

															When the Framers met for the Constitutional Convention, they
understood the need for greater checks and balances to reinforce
the separation of powers. As Madison 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 judicial—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 (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 Constitution] 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 document”). The Judiciary—no less than the other
two branches—has an obligation to guard against deviations from
those principles. The Seminole Rock line of precedent is one
such deviation.

															B Seminole Rock raises two related constitutional concerns.
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 n. 66 (2000); Nelson, Originalism
and Interpretive Conventions, 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. Alexander
Hamilton lauded this power, arguing that “[t]he interpretation 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
interpretation that had been set out by jurists for centuries. See, e.g. , 2 S. von Pufendorf, De Officio Hominis Et Civis Juxta
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 interpretations of the
law was that Article III judges would exercise independent
judgment. Although “judicial independence” 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
personal biases, while external sources might include pressure from
the political branches, the public, or otherinterested parties. See
Hamburger, supra, at 508–521.

															The Framers made several key decisions at the Convention 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
example, 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]” 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 Compensation, which shall not
be diminished during their Continuance 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
definiteto 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 external pressures, the
Constitution tied them to those pressures. 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 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.” Federalist No. 78, at 467 (A. Hamilton). The
Legislature and Executive may be swayed by popular sentiment to
abandon the strictures of the Constitution or other rules of law.
But the Judiciary, insulated from both internal and external
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. 218–232 (2001).[ 4 ]
Agencies and private 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 meaning
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
deference amounts to a transfer of the judge’s exercise of
interpretive judgment to the agency. See 1 S. Johnson, Dictionary
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 protections 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.

															2 Seminole Rock is constitutionally questionable for an
additional reason: It undermines the judicial “check” on the
political branches. Unlike the Legislative and Executive 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 revenue 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 precedent,” the judiciary should “leave it to the King to order
in it according to his wisdom.” Ibid . Coke famously
responded, “[T]he King cannot change any part of the common 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. 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
“contemplated [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 involved 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 Constitution. 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 constitutions,
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 interpretation of statutes, see, e.g., Whitfield v. United States , 574 U. S. ___, ___–___ (2015) (slip op.,
at 2–3), or the compatibility 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 regulations, we have just as repeatedly declined to
exercise independent judgment as to those claims. Instead, we have
deferred to the executive agency that both promulgated 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 powers that the
Framers warned against. See The Federalist No. 47, at 302 (J.
Madison).

															C

															This accumulation of governmental powers allows agencies to
change the meaning of regulations at their discretion 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
interpretations 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 regulation—instead of to the best interpretation of it—they effectively give the
interpretation—and not the regulation—the force and effect of law.
To regulated parties, the new interpretation might as well be a new
regulation.

															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 regulations providing that “an employee
whose primary duty is selling financial products does not qualify
for the administrative 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 primary duty is selling financial products. But in
2010, the Department reversed course, concluding exactly the
opposite. If courts accord “controlling weight” to both the 2006
and 2010 interpretations, the regulated entities are subject 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 Alexander Hamilton once
referred.[ 5 ]

															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 administering
technical statutory schemes. Under this justification, deference to
administrative agencies is necessary when a “regulation concerns ‘a
complex and highly technical regulatory program’ in which the
identification and classification 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 regulations have the ‘force and effect of
law,’ ” Chrysler Corp. v. Brown ,441 U. S.
281,295 (1979), such regulations should be interpreted like any
other law. Thus, we should “assum[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
administrative 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”). Indeed, 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. 637–643
(1954) (interpreting deportation statute according to technical
meaning).

															Fundamentally, the argument about agency expertise is less about
the expertise of agencies in interpreting language than it is about
the wisdom of according agencies broad flexibility to administer
statutory schemes.[ 6 ] “But policy arguments
supporting even useful ‘political inventions’ 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. 144–188
(1992).

															B

															Another oft-recited justification for Seminole Rock deference 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.
144–153 (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 regulations because
Congress had delegated authority to both to administer the
program). It has likewise granted Seminole 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 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. 555–587 (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’ intentions 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. 617–632 (1990) (Scalia, J., concurring in part), we
should not accord controlling weight to expressions of intent by
administrators ofagencies.

															C

															A third asserted justification for Seminole Rock deference is that Congress has delegated to agencies the authority
to interpret their own regulations. See, e.g., Martin , 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 authoritatively to interpret its own
regulations is a component of the agency’s delegated lawmaking
powers.” Ibid. This justification fails because Congress lacks authority to
delegate the power. As we have explained in an analogous context,
“[t]he structure of the Constitution does not permit Congress to
execute the laws; it follows that Congress 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 cannot 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 separate the
legislative from the judicial power . . . [that]
triumphed among the Framers of the new Federal Constitution.” 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
Judiciary. See Marbury , 1 Cranch, at 177, 179–180.

															D

															A final proposed justification for Seminole Rock deference 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 “expose them to the fire of public criticism,” id., at 187.

															But this argument, which boils down to a policy judgment of
questionable validity, cannot vitiate the constitutional allocation
of powers. The Judicial Branch is separate 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 inpart 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. Notes 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. 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. 243–257 (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”). 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. 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 purports 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 legislative power, which our
Constitution does not permit the Executive to exercise in this
manner. Because these troubling questions are not 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). 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 comment, 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 evidence and bear the burden of
proof in support of those proposed rules. See5 U. S. C.
§556. 6 Many decisions of this Court invoke
agency expertise as a justification for deference. This argument
has its root in the support for administrative 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 significant expansions
of the administrative state, ultimately culminating in the New
Deal. See generally M. Keller, Regulating a New Economy: Public
Policy and Economic Change in America, 1900–1933
(1990).

Summary: The Supreme Court ruled that federal agencies do not need to follow notice-and-comment rulemaking procedures when issuing a new interpretation of a regulation, departing from the D.C. Circuit's previous ruling in Paralyzed Veterans of Am. v. D.C. Arena L.P.