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MICHIGAN v. EPA THOMAS, J., concurring

cases involving statutes that delegated this legislative authority). It is the power to decide—without any particular fidelity to the text—which policy goals EPA wishes to pursue. Should EPA wield its vast powers over electric utilities to protect public health? A pristine environment? Economic security? We are told that the breadth of the word “appropriate” authorizes EPA to decide for itself how to answer that question. Compare 77 Fed. Reg. 9327 (2012) (“[N]othing about the definition [of “appropriate”] compels a consideration of costs” (emphasis added)) with Tr. of Oral Arg. 42 (“[T]he phrase appropriate and necessary doesn’t, by its terms, preclude the EPA from considering cost” (emphasis added)).1 Perhaps there is some unique historical justification for deferring to federal agencies, see Mead, supra, at 243 (SCALIA, J., dissenting), but these cases reveal how paltry an effort we have made to understand it or to confine ourselves to its boundaries. Although we hold today that EPA exceeded even the extremely permissive limits on agency power set by our precedents, we should be alarmed that it felt sufficiently emboldened by those precedents to make the bid for deference that it did here.2 As in other areas of our jurisprudence concerning administrative agencies, see, e.g., B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. ___, ___–___ (2015) (THOMAS, J., dissenting) (slip op., at 10–14), we seem to be straying —————— 1I

can think of no name for such power other than “legislative power.” Had we deferred to EPA’s interpretation in these cases, then, we might have violated another constitutional command by abdicating our check on the political branches—namely, our duty to enforce the rule of law through an exercise of the judicial power. Perez v. Mortgage Bankers Assn., 575 U. S. ___, ___–___ (2015) (THOMAS, J., concurring in judgment) (slip op., at 14–16). 2 This is not the first time an agency has exploited our practice of deferring to agency interpretations of statutes. See, e.g., Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., ante, at 6–7 (THOMAS, J., dissenting).