source: Caselaw Access Project

author: Justice Thomas Justice Scalia,

license: Public Domain

text:
    [564 U.S. 50]
    TALK AMERICA, INC., Petitioner v MICHIGAN BELL TELEPHONE COMPANY, dba AT&T MICHIGAN ORJIAKOR ISIOGU, et al., Petitioners v MICHIGAN BELL TELEPHONE COMPANY, dba AT&T MICHIGAN
    (No. 10-313)
    (No. 10-329)
    564 U.S. 50, 131 S. Ct. 2254,
    180 L. Ed. 2d 96,
    2011 U.S. LEXIS 4375
    Argued March 30, 2011.
    Decided June 9, 2011.

      APPEARANCES OF COUNSEL ARGUING CASE
    John J. Bursch argued the cause for petitioners.
    Eric D. Miller argued the cause for the United States, as amicus curiae, by special leave of court.

      Scott H. Angstreich argued the cause for respondents.

      Thomas, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, J., who took no part in the consideration or decision of the cases. Scalia, J., filed a concurring opinion.
   OPINION OF THE COURT

[564 U.S. 53]

Justice Thomas

delivered the opinion of the Court.

In these cases, we consider whether an incumbent provider of local telephone service must make certain transmission facilities available to competitors at cost-based rates. The Federal Communications Commission (FCC or Commission) as amicus curiae contends that its regulations require the incumbent provider to do so if the facilities are to be used for interconnection: to link the incumbent provider’s telephone network with the competitor’s network for the mutual exchange of traffic. We defer to the Commission’s views and reverse the judgment below.

I

The Telecommunications Act of 1996 (1996 Act), 110 Stat. 56, imposed a number of duties on incumbent providers of local telephone service in order to facilitate market entry by competitors. AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 371, 119 S. Ct. 721, 142 L. Ed. 2d 834 (1999). The incumbent local exchange carriers (LECs) owned the local exchange networks: the physical equipment necessary to receive, properly route, and deliver phone calls among customers. Verizon Communications Inc. v. FCC, 535 U.S. 467, 490, 122 S. Ct. 1646, 152 L. Ed. 2d 701 (2002). Before the 1996 Act, a new, competitive LEC could not compete with an incumbent

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carrier without basically replicating the incumbent’s entire existing network. Ibid.

The 1996 Act addressed that barrier to market entry by requiring incumbent LECs to share their networks with competitive LECs in several ways, two of which are relevant here. First, 47 U.S.C. § 251(c)(3) requires incumbent LECs to lease “on an unbundled basis”—i.e., a la carte— network elements specified by the Commission. This makes it easier for a competitor to create its own network without having to build every element from scratch. In identifying which network elements must be available for unbundled lease under § 251(c)(3), the Commission is required to consider whether access is “necessary” and whether failing to provide access would “impair” a com petitor’s provision of service. § 251(d)(2). Second, § 251(c)(2) mandates that incumbent LECs “provide . . . interconnection” between their networks and competitive LECs’ facilities. This ensures that customers on a competitor’s network can call customers on the incumbent’s network, and vice versa. The interconnection duty is independent of the unbundling rules and not subject to impairment analysis. It is undisputed that both unbundled network elements and interconnection must be provided at cost-based rates. See § 252(d)(1); Brief for Petitioner in No. 10-313, p. 28; Brief for Petitioners in No. 10-329, p. 7; Brief for Respondent 4.

These cases concern incumbent LECs’ obligation to share existing “entrance facilities” with competitive LECs. Entrance facilities are the transmission facilities (typically wires or cables) that connect competitive LECs’ networks with incumbent LECs’ networks. The FCC recently adopted a regulation specifying that entrance facilities are not among the network elements that § 251(c)(3) requires incumbents to lease to competitors on an unbundled basis at cost-based rates. See 47 CFR § 51.319(e)(2)(i) (2005). The Commission noted, however, that it “d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant

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to section 251(c)(2).” In re Unbundled Access to Network Elements, 20 FCC Rcd. 2533, 2611, ¶ 140 (2005) (Triennial Review Remand. Order).

The specific issue here is whether respondent, Michigan Bell Telephone Company, d/b/a AT&T Michigan (AT&T), must lease existing entrance facilities to competitive LECs at cost-based rates. The FCC interprets its regulations to require AT&T to do so for the purpose of interconnection. We begin by reviewing the Commission’s recent actions regarding entrance facilities and then explain the particular dispute that is before us today.

A

In 2003, the FCC decided, contrary to its previous orders, that incumbent LECs were not obligated to provide cost-based unbundled access to entrance facilities under § 251(c)(3). In re Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 18 FCC Rcd. 16978, 17202-17205, ¶¶ 365-367 (2003) (Triennial Review Order). Explaining that its previous approach had been “misguided” and “overly broad,” id., ¶¶ 366, 365, the Commission concluded that entrance facilities were not subject to the unbundling requirement because they are not network elements at all. See id., ¶ 366 (entrance facilities “exist outside the incumbent LEC’s local network”). The Commission therefore did not conduct an impairment analysis.

The FCC emphasized, however, the limits of this ruling. Entrance facilities are used for two purposes: interconnection and backhauling. It expressly “d[id] not alter” an incumbent

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LEC’s obligation under § 251(c)(2) to provide “facilities in order to ‘interconnect with the incumbent LEC’s network.’ ” Id., ¶ 366 (brackets omitted). Thus, although the Commission specified that § 251(c)(3) did not require any unbundled leasing of entrance facilities, it determined in practical effect only that “incumbent LECs [were not obligated] to un-bundle [entrance facilities] for the purpose of backhauling traffic.” Id., ¶ 365.

On direct review, the D. C. Circuit questioned the Commission’s determination that entrance facilities are not network elements under § 251(c)(3), but found the agency rule-making record insufficient and remanded to the Commission for further consideration. See United States Telecom Assn. v. FCC, 359 F.3d 554, 586, cert. denied, 543 U.S. 925, 125 S. Ct. 313, 160 L. Ed. 2d 223 (2004). The court noted that if entrance facilities were in fact “ ‘network elements,’ ” then “an analysis of impairment would presumably follow.” 359 F.3d, at 586.

In 2005, the Commission responded. See Triennial Review Remand. Order ¶¶ 136-141. The Commission retreated from its view that entrance facilities are not network elements but adhered to its previous position that cost-based unbundled access to them need not be provided under § 251(c)(3). Id., ¶¶ 137-138. Treating entrance facilities as network elements, the Commission concluded that competitive LECs are not impaired without access to them. Ibid. The Commission again emphasized that it “d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant to section 251(c)(2).” Id., ¶ 140.

B

In the wake of the Triennial Review Remand Order, AT&T notified competitive LECs that it would no longer provide entrance facilities at cost-based rates for either backhauling or interconnection, but would instead charge higher

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rates. Competitive LECs complained to the Michigan Public Service Commission (PSC) that AT&T was unlawfully abrogating their right to cost-based interconnection under § 251(c)(2). The Michigan PSC agreed with the competitive LECs and ordered AT&T to continue providing entrance facilities for interconnection at cost-based rates.

AT&T challenged the Michigan PSC’s ruling in the District Court, which, relying on the Triennial Review Remand Order, ruled in AT&T’s favor. The Michigan PSC and several competitive LECs, including petitioner Talk America, Inc., appealed.

The Court of Appeals for the Sixth Circuit affirmed over a dissent. Michigan Bell Telephone Co. v. Covad Communications Co., 597 F.3d 370 (2010). At the court’s invitation, the FCC filed a brief as amicus curiae, arguing that the Tiennial Review Remand Order did not change incumbent LECs’ interconnection obligations, including the obligation to lease entrance facilities for interconnection. The Sixth Circuit declined to defer to the FCC’s views, 597 F.3d, at 375, n. 6, and also expressly disagreed with the Seventh and Eighth Circuits, id., at 384-386 (discussing Illinois Bell Tel. Co. v. Box, 526 F.3d 1069 (2008), and Southwestern Bell Tel., L. P. v. Missouri Pub. Serv. Comm’n, 530 F.3d 676 (2008)).

We granted certiorari, 562 U.S. 1104, 131 S. Ct. 818, 178 L. Ed. 2d 551 (2010), and now reverse.

II

Petitioners contend that AT&T must lease its existing entrance facilities for interconnection at cost-based rates. We agree.

A

No statute or regulation squarely addresses whether an incumbent LEC must provide access to entrance facilities at cost-based rates as part of its interconnection duty

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under § 251(c)(2). According to the statute, each incumbent LEC has:

“The duty to provide, for the facilities and equipment of any requesting telecommunications carrier, interconnection with the local exchange carrier’s network—
“(A) for the transmission and routing of telephone exchange service and exchange access;
“(B) at any technically feasible point within the carrier’s network;
“(C) that is at least equal in quality to that provided by the local exchange carrier to itself or to any subsidiary, affiliate, or any other party to which the carrier provides interconnection; and
“(D) on rates, terms, and conditions that are just, reasonable, and nondiscriminatory, in accordance with the terms and conditions of the agreement and the requirements of this section and section 252 of this title.”

Nothing in that language expressly addresses entrance facilities. Nor does any regulation do so. See Brief for United States as Amicus Curiae 22, n. 6.

AT&T contends that the statute makes clear that an incumbent LEC need not provide access to any facilities—much less entrance facilities—to provide interconnection. The company points out that § 251(c)(2) does not mention incumbent LECs’ facilities, but rather mandates only that incumbent LECs provide interconnection “for the facilities and equipment of any [competing] carrier.” In contrast, AT&T notes, § 251(c)(3) requires that incumbent LECs provide unbundled “access to [their] network elements.”

We do not find the statute so clear. Although § 251(c)(2) does not expressly require that incumbent LECs lease facilities to provide interconnection, it also does not expressly excuse them from doing so. The statute says nothing about what an incumbent LEC must do to “provide . . . interconnection.” § 251(c)(2). “[T]he facilities and equipment of

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any [competing] carrier” identifies the equipment that an incumbent LEC must allow to interconnect, but it does not specify what the incumbent LEC must do to make the interconnection possible. Ibid.

B

In the absence of any unambiguous statute or regulation, we turn to the FCC’s interpretation of its regulations in its amicus brief. See, e.g., Chase Bank USA, N. A. v. McCoy, 562 U.S. 195, 207, 131 S. Ct. 871, 178 L. Ed. 2d 716 (2011). As we reaffirmed earlier this Term, we defer to an agency’s interpretation of its regulations, even in a legal brief, unless the interpretation is “ ‘plainly erroneous or inconsistent with the regulation[s]’ ” or there is any other “ ‘reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.’ ” Id., at 208, 209, 131 S. Ct. 871, 178 L. Ed. 2d 716 (quoting Auer v. Robbins, 519 U.S. 452, 461, 462, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)).

The Commission contends that its regulations require AT&T to provide access at cost-based rates to its existing entrance facilities for the purpose of interconnection. The Commission’s interpretation proceeds in three steps. First, an incumbent LEC must lease “technically feasible” facilities for interconnection. Second, entrance facilities are among the facilities that an incumbent must make available for interconnection, if technically feasible. Third, it is technically feasible to provide access to the particular entrance facilities at issue in these cases.

1

The Commission first contends that an incumbent LEC must lease, at cost-based rates, any requested facilities for obtaining interconnection with the incumbent LEC’s network, unless it is technically infeasible to do so. Section 251(c)(2) mandates that an incumbent LEC provide interconnection, at cost-based rates, “at any technically feasible point within the carrier’s network.” The FCC has long construed § 251(c)(2) to require incumbent LECs to provide, at cost-based

[564 U.S. 60]

rates, “any technically feasible method of obtaining interconnection ... at a particular point.” 47 CFR § 51.321(a) (2010).

The requirement in § 51.321(a) to provide a “method of obtaining interconnection,” the Commission argues, encompasses a duty to lease an existing facility to a competing LEC. When the Commission originally promulgated § 51.321(a), it explained that incumbent LECs would be required to “adapt their facilities to interconnection” and to “accept the novel use of, and modification to, [their] network facilities.” In re Implementation of Local Competition Provisions in the Telecommunications Act of 1996, 11 FCC Rcd. 15499, 15605, ¶ 202 (1996) (Local Competition Order). Since then, as AT&T and its amici concede, incumbent LECs have commonly leased certain facilities at cost-based prices to accommodate interconnection. See Brief for Respondent 28-29; Brief for United States Telecom Association et al. as Amici Curiae 33-35.

As additional support for its assertion that incumbent LECs are obligated to lease facilities, the FCC highlights the examples in § 51.321(b) of “[technically feasible methods of obtaining interconnection,” which include “[m]eet point interconnection arrangements.” In a meet-point arrangement, an incumbent LEC “accommodates]” interconnection by building a transmission facility from its network to a designated point, where it connects with the competitor’s corresponding transmission facility. Local Competition Order ¶ 553. Compared to that requirement, the Commission argues, the obligation to lease existing facilities for interconnection is quite modest.

2

Next, the Commission contends that existing entrance facilities are among the facilities that an incumbent LEC must lease for interconnection. According to the FCC, the Triennial Review Remand Order adopted a regulatory definition that reestablished that entrance facilities are part of

[564 U.S. 61]

an incumbent LEC’s network. See ¶ 137; see also 47 CFR § 51.319(e). The end of every entrance facility is therefore a “point within [an incumbent] carrier’s network” at which a competing LEC could request interconnection, 47 U.S.C. § 251(c)(2), and each entrance facility potentially provides a “technically feasible method of obtaining interconnection,” 47 CFR § 51.321(a).

3

Finally, the FCC contends that providing access to the entrance facilities here for interconnection purposes is technically feasible. Under the Commission’s regulations, an incumbent LEC bears the burden of showing that a requested method or point of interconnection is technically infeasible. See 47 CFR §§ 51.305(e), 51.321(d); see also §§ 51.305(d), 51.321(c) (previously successful interconnection is “substantial evidence” of technical feasibility). AT&T does not dispute technical feasibility here.

c

The FCC’s interpretation is not “plainly erroneous or inconsistent with the regulation[s]." Auer, supra, at 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (internal quotation marks omitted). First, we disagree with AT&T’s argument that entrance facilities are not a part of

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incumbent LECs’ networks. Indeed, the Commission’s view on this question is more than reasonable; it is certainly not plainly erroneous. The Triennial Review Remand Order responded to the D. C. Circuit’s decision questioning the Commission’s earlier finding that entrance facilities are not network elements. It revised the definition of dedicated transport—a type of network element—to include entrance facilities. Triennial Review Remand Order ¶¶ 136-137; see 47 CFR § 51.319(e)(1) (defining dedicated transport to include “incumbent LEC transmission facilities . . . between wire centers or switches owned by incumbent LECs and switches owned by [competing] carriers”). Given that revised definition, it is perfectly sensible to conclude that entrance facilities are a part of incumbent LECs’ networks.

Second, we are not persuaded by AT&T’s argument that the Commission’s views conflict with the definition of interconnection in § 51.5. That regulation provides: “Interconnection is the linking of two networks for the mutual exchange of traffic. This term does not include the transport and termination of traffic.” AT&T focuses on the definition’s exclusion of “transport and termination of traffic.” An entrance facility is a transport facility, AT&T argues, and it makes no sense to require an incumbent LEC to furnish a transport facility for interconnection when the definition of interconnection expressly excludes transport.

We think AT&T reads too much into the exclusion of “transport.” The regulation cannot possibly mean that no transport can occur across an interconnection facility, as that would directly conflict with the statutory language. See § 251(c)(2) (requiring “interconnection . . . for the transmission and routing of [local] telephone exchange service”). The very reason for interconnection is the “mutual exchange of traffic.” 47 CFR § 51.5; see also Competitive Telecommunications Assn. v. FCC, 117 F.3d 1068, 1071-1072 (CA8 1997) (“[T]he transmission and routing of telephone exchange service” is “what the interconnection, the physical link, would be used for” (internal quotation marks omitted)).

[564 U.S. 63]

The better reading of the regulation is that it merely reflects that the “transport and termination of traffic” is subject to different regulatory treatment than interconnection. Compensation for transport and termination—that is, for delivering local telephone calls placed by another carrier’s customer—is governed by separate statutory provisions and regulations. See 47 U.S.C. §§ 251(b)(5), 252(d)(2); 47 CFR § 51.701. The Commission explains that a competitive LEC typically pays one fee for interconnection—“just for having the link”—and then an additional fee for the transport and termination of telephone calls. Tr. of Oral Arg. 28; see also Brief for United States as Amicus Curiae 3, n. 1. Entrance facilities, at least when used for the mutual exchange of traffic, seem to us to fall comfortably within the definition of interconnection. See 597 F.3d, at 388 (Sutton, J., dissenting) (noting that entrance facilities are “designed for the very purpose of linking two carriers’ networks” (internal quotation marks omitted)).

In sum, the Commission’s interpretation of its regulations is neither plainly erroneous nor inconsistent with the regulatory text. Contrary to AT&T’s assertion, there is no danger that deferring to the Commission would effectively “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Christensen v. Harris County, 529 U.S. 576, 588, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000).

D

Nor is there any other “reason to suspect that the interpretation does not reflect the agency’s fair and considered

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judgment on the matter in question.” Auer, 519 U.S., at 462, 117 S. Ct. 905, 137 L. Ed. 2d 79. We are not faced with a post-hoc rationalization by Commission counsel of agency action that is under judicial review. See ibid.; see also Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-169, 83 S. Ct. 239, 9 L. Ed. 2d 207 (1962) ( “The courts may not accept appellate counsel’s post hoc rationalizations for agency action; [SEC v.] Chenery [Corp., 332 U.S. 194, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947),] requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself’). And although the FCC concedes that it is advancing a novel interpretation of its longstanding interconnection regulations, novelty alone is not a reason to refuse deference. The Commission explains that the issue in these cases did not arise until recently—when it initially eliminated unbundled access to entrance facilities in the Triennial Review Order. Until then, the Commission says, a competitive LEC typically would elect to lease a cost-priced entrance facility under § 251(c)(3) since entrance facilities leased under § 251(c)(3) could be used for any purpose—i.e., both interconnection and backhauling—but entrance facilities leased under § 251(c)(2) can be used only for interconnection. We see no reason to doubt this explanation.

AT&T suggests that the Commission is attempting to require under § 251(c)(2) what courts have prevented it from requiring under § 251(c)(3) and what the Commission itself said was not required in the Triennial Review Remand. Order. Tr. of Oral Arg. 50 (“[T]his is a rear guard effort to preserve [cost-based] pricing for things that the [C]ommission has said should no longer be available . . . at [such] pricing”). We do not think that AT&T is correct.

1

To begin with, AT&T’s accusation does not square with the regulatory history. The Commission was not compelled to eliminate the obligation to lease unbundled entrance facilities at cost-based rates.

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It is true that, prior to the Triennial Review orders, the Commission twice unsuccessfully attempted to impose sweeping unbundling requirements on incumbent LECs. See Local Competition Order ¶ 278; In re Implementation of Local Competition Provisions of the Telecommunications Act of 1996, 15 FCC Rcd. 3696, 3771-3904, ¶¶ 162-464 (1999); see also 47 CFR § 51.319 (1997); § 51.319 (2000). Each time, the Commission’s efforts were rejected for taking an unreasonably broad view of “impair [ment]” under § 251(d)(2). See Iowa Utilities Bd., 525 U.S., at 392, 119 S. Ct. 721, 142 L. Ed. 2d 834; United States Telecom Assn. v. FCC, 290 F.3d 415, 421-428 (CADC 2002), cert. denied, 538 U.S. 940, 123 S. Ct. 1571, 155 L. Ed. 2d 344 (2003). In the Triennial Review Order, the Commission once again reinterpreted the “impair” standard and revised the list of network elements that incumbents must provide unbundled to competitors.

The Commission’s initial decision to eliminate the obligation to unbundle entrance facilities, however, was not a result of the narrower view of impairment mandated by this Court and the D. C. Circuit. Instead, the Commission determined that entrance facilities need not be provided on an unbundled basis under § 251(c)(3) on the novel ground that they are not network elements at all—something no court had ever suggested.

Moreover, since its initial decision to eliminate the unbundling obligation for entrance facilities, the Commission has been committed to that position. When the D. C. Circuit questioned the Commission’s finding that entrance facilities are not network elements, the Commission responded by observing that the court “did not reject our conclusion that incumbent LECs need not unbundle entrance facilities, only the analysis through which we reached that conclusion.” Triennial Review Remand. Order ¶ 137. The Commission then found another way to support that same conclusion.

2

More importantly, AT&T’s characterization of what the Commission has done, and is doing, is inaccurate. The Triennial

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Review orders eliminated incumbent LECs’ obligation under § 251(c)(3) to provide unbundled access to entrance facilities. But the FCC emphasized in both orders that it “d[id] not alter” the obligation on incumbent LECs under § 251(c)(2) to provide facilities for interconnection purposes. Triennial Review Order ¶ 366; Triennial Review Remand. Order ¶ 140. Because entrance facilities are used for back-hauling and interconnection purposes, the FCC effectively eliminated only unbundled access to entrance facilities for backhauling purposes—a nuance it expressly noted in the first Triennial Review order. Triennial Review Order ¶ 365. That distinction is neither unusual nor ambiguous. In these cases, the Commission is simply explaining the interconnection obligation that it left undisturbed in the T'iennial Review orders. We see no conflict between the Triennial Review orders and the Commission’s views expressed here.

We are not concerned that the Triennial Review Remand Order did not expressly distinguish between back-hauling and interconnection, though AT&T makes much of that fact. AT&T argues that the Commission’s holding in the Triennial Review Remand. Order is broader than that in the Trien-nial Review Order. In AT&T’s view, the Commission

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concluded in the Triennial Review Remand Order that competitors are not impaired if they lack cost-based access to entrance facilities for backhauling or interconnection.

There are two flaws with AT&T’s reasoning. First, as we have discussed, the Triennial Review Remand-Order reinstated the ultimate conclusion of the Ti'iennial Review Order and changed only “the analysis through which [it] reached that conclusion.” Triennial Review Remand-Order ¶ 137. Second, unlike § 251(c)(3)’s unbundling obligation, § 251(c)(2)’s interconnection obligation does not require the Commission to consider impairment. As the dissent below observed, it would be surprising indeed if the FCC had taken the novel step of incorporating impairment into interconnection without comment. 597 F.3d, at 389 (opinion of Sutton, J.).

The FCC as amicus curiae has advanced a reasonable interpretation of its regulations, and we defer to its views. The judgment of the United States Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

Justice Kagan took no part in the consideration or decision of these cases.

SEPARATE OPINION

Justice Scalia,

concurring.

I join the opinion of the Court. I would reach the same result even without benefit of the rule that we will defer to an agency’s interpretation of its own regulations, a rule in recent years attributed to our opinion in Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997), though it first appeared in our jurisprudence more than half a century earlier, see Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S. Ct. 1215, 89 L. Ed. 1700 (1945). In this suit I have no need to rely on Auer deference, because I believe the FCC’s interpretation is the fairest reading of the orders in question. Most cogently, ¶ 140 of the Triennial Review

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Remand. Order serves no purpose unless one accepts (as AT&T does not) the distinction between backhauling and interconnection that is referred to in footnotes to ¶¶ 138 and 141 of the order. 20 FCC Red. 2533, 2610-2612 (2005). The order would have been clearer, to be sure, if the distinction had been made in a footnote to ¶ 140 itself, but the distinction is there, and without it ¶ 140 has no point.

It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary—indeed, an a fortiori application—of the rule that we will defer to an agency’s interpretation of the statute it is charged with implementing, see Chevron U. S. A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). But it is not. When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implementation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s meaning. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well. “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151-152 (O. Piest ed., T. Nugent transí. 1949).

Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power,

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to enact vague statutes; the vagueness effectively cedes power to the Executive. By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government. The seeming inappropriateness of Auer deference is especially evident in cases such as these, involving an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends.

There are undoubted advantages to Auer deference. It makes the job of a reviewing court much easier, and since it usually produces affirmance of the agency’s view without conflict in the Circuits, it imparts (once the agency has spoken to clarify the regulation) certainty and predictability to the administrative process. The defects of Auer deference, and the alternatives to it, are fully explored in Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). We have not been asked to reconsider Auer in the present cases. When we are, I will be receptive to doing so.

      . The Solicitor General, joined by counsel for the FCC, represents that the amicus brief for the United States filed in this Court reflects the Commission’s considered interpretation of its own rules and orders. Brief for United States 31. We thus refer to the Government’s arguments in these cases as those of the agency. See, e.g., Chase Bank USA, N. A. v. McCoy, 562 U.S. 195, 203, 131 S. Ct. 871, 178 L. Ed. 2d 716 (2011).

      . Although the parties and their amici disagree over the precise definition of backhauling, they all appear to agree that  backhauling is important to competitive LECs and occurs when a competitive LEC uses an entrance facility to transport traffic from a leased portion of an incumbent network to the competitor’s own facilities. Backhauling does not involve the exchange of traffic between incumbent and competitive networks. See, e.g., Brief for Petitioners in No. 10-329, p. 25; Brief for United States Telecom Association et al. as Amici Curiae 32. It thus differs from interconnection—“the linking of two networks for the mutual exchange of traffic.’’ 47 CFR § 51.5 (2010).

      . The Ninth Circuit has since joined the Seventh and Eighth Circuits. Pacific Bell Tel. Co. v. California Pub. Util. Comm’n, 621 F.3d 836 (2010).

      . These cases concern only existing entrance facilities, and the Commission expressly declines to address whether it reads its regulations to require incumbent LECs to build new entrance facilities for interconnection. Brief for United States as Amicus Curiae 25, n. 7. The Commission suggests here, as it has before, that additional considerations of cost or reasonableness might be appropriate if a competitive LEC were to request that an incumbent LEC build new entrance facilities for interconnection. Ibid. (noting that the Commission’s Wireline Competition Bureau has declined to require an incumbent LEC to bear the entire cost of building new entrance facilities); see also Local Competition Order ¶ 553 (explaining with respect to meet-point arrangements that “the parties and state commissions are in a better position than the Commission to determine the appropriate distance that would constitute the required reasonable accommodation of interconnection"). We express no view on the matter.

      . There is no merit to AT&T’s assertion that the FCC is improperly amending  the list of “[t]echnically feasible methods of obtaining interconnection” set forth in 47 CFR § 51.321(b). By its own terms, that list is nonexhaustive. See § 51.321(b) (“[t]echnically feasible methods of obtaining interconnection . . . include, but are not limited to,” the listed examples); see also § 51.321(a) (“[A]n incumbent LEC shall provide . . . any technically feasible method of obtaining interconnection” (emphasis added)).

      . The Commission has long recognized that  a single facility can be used for different functions and that its regulatory treatment can vary depending on its use. Unbundled network elements, for example, may not be used for the exclusive provision of mobile wireless or long-distance services. 47 CPR § 51.309(b) (2010). Similarly, interconnection arrangements may be used for local telephone service but not for long-distance services. § 51.305(b).

      . The parties and their amici dispute whether an incumbent LEC has any way of knowing how a competitive LEC is using an entrance facility. This technical factual dispute simply underscores the appropriateness of deferring to the FCC.  So long as the Commission is acting within the scope of its delegated authority and in accordance with prescribed procedures, it has greater expertise and stands in a better position than this Court to make the technical and policy judgments necessary to administer the complex regulatory program at issue here.


author: Justice Sotomayor Justice Scalia,

text:
    [564 U.S. 70]
    FRANTZ DePIERRE, Petitioner v UNITED STATES
    564 U.S. 70, 131 S. Ct. 2225,
    180 L. Ed. 2d 114,
    2011 U.S. LEXIS 4374
    [No. 09-1533]
    Argued February 28, 2011.
    Decided June 9, 2011.

      APPEARANCES OF COUNSEL ARGUING CASE
    Andrew J. Pincus argued the cause for petitioner.
    Nicole A. Saharsky argued the cause for respondent.

      Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined, and in which Scalia, J., joined except for Part III-A. Scalia, J., filed an opinion concurring in part and concurring in the judgment.
   OPINION OF THE COURT

[564 U.S. 72]

Justice Sotomayor

delivered the opinion of the Court.

At the time of petitioner’s conviction and sentence, federal law mandated a minimum 10-year sentence for persons convicted of certain drug offenses, 21 U.S.C. § 841(a), including those involving 50 grams or more of “a mixture or substance . . . which contains cocaine base,” § 841(b)(l)(A)(iii), and a minimum 5-year sentence for offenses involving 5 grams or more of the same, § 841(b)( 1 KBKiii). This case requires us to decide whether the term “cocaine base” as used in this statute refers generally to cocaine in its chemically basic form or exclusively to what is colloquially known as “crack cocaine.” We conclude that “cocaine base” means the former.

I

A

As a matter of chemistry, cocaine is an alkaloid with the molecular formula C17H21NO4. Webster’s Third New International Dictionary 434 (2002). An alkaloid is a base—that is, a compound capable of reacting with an acid to form

[564 U.S. 73]

a salt. Id., at 54, 180; see also Brief for Individual Physicians and Scientists as Amici Curiae 2-3 (herein-after Physicians Brief). Cocaine is derived from the coca plant native to South America. The leaves of the coca plant can be processed with water, kerosene, sodium carbonate, and sulfuric acid to produce a pastelike substance. R. Weiss, S. Mi-rin, & R. Bartel, Cocaine 10 (2d ed. 1994). When dried, the resulting “coca paste” can be vaporized (through the application of heat) and inhaled, i.e., “smoked.” See United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 11-12 (1995) (hereinafter Commission Report). Coca paste contains C17H21NO4—that is, cocaine in its base form.

Dissolving coca paste in water and hydrochloric acid produces (after several intermediate steps) cocaine hydrochloride, which is a salt with the molecular formula Ci7H22N04+Cl_. Id., at 12; Physicians Brief 3. Cocaine hydrochloride, therefore, is not a base. It generally comes in powder form, which we will refer to as “powder cocaine.” It is usually insufflated (breathed in through the nose), though it can also be ingested or diluted in water and injected. Because cocaine hydrochloride vaporizes at a much higher temperature than chemically basic cocaine (at which point the cocaine molecule tends to decompose), it is generally not smoked. See Commission Report 11, n. 15, 12-13.

Cocaine hydrochloride can be converted into cocaine in its base form by combining powder cocaine with water and a base, like sodium bicarbonate (also known as baking soda). Id., at 14. The chemical reaction changes the cocaine hydrochloride molecule into a chemically basic cocaine molecule,

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Physicians Brief 4, and the resulting solid substance can be cooled and broken into small pieces and then smoked, Commission Report 14. This substance is commonly known as “crack” or “crack cocaine.” Alternatively, powder cocaine can be dissolved in water and ammonia (also a base); with the addition of ether, a solid substance—known as “freebase”—separates from the solution, and can be smoked. Id., at 13. As with crack cocaine, freebase contains cocaine in its chemically basic form. Ibid.

Chemically, therefore, there is no difference between the cocaine in coca paste, crack cocaine, and freebase— all are cocaine in its base form. On the other hand, cocaine in its base form and in its salt form (i.e., cocaine hydrochloride) are chemically different, though they have the same active ingredient and produce the same physiological and psychotropic effects. See id., at 14-22. The key difference between them is the method by which they generally enter the body; smoking cocaine in its base form—whether as coca paste, freebase, or crack cocaine—allows the body to absorb the active ingredient quickly, thereby producing a shorter, more intense high than obtained from insufflating cocaine hydrochloride. Ibid.; see generally Kimbrough v. United States, 552 U.S. 85, 94, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007).

B

In 1986, increasing public concern over the dangers associated with illicit drugs—and the new phenomenon of crack cocaine in particular— prompted Congress to revise the penalties for criminal offenses involving cocaine-related substances. See id., at 95-96. At the time, federal law generally tied the penalties for drug offenses to both the type of drug and the quantity involved, with no provision for mandatory minimum sentences. See, e.g., § 841(b)(1) (1982 ed., Supp. III). After holding several hearings specifically addressing

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the emergence of crack cocaine, Congress enacted the Anti-Drug Abuse Act of 1986 (ADAA), 100 Stat. 3207, which provided mandatory minimum sentences for controlled-substance offenses involving specific quantities of drugs.

As relevant here, the ADAA provided a mandatory 10-year sentence for certain drug offenses involving 5 kilograms or more of “a mixture or substance containing a detectable amount of’ various cocaine-related elements, including coca leaves, cocaine, and cocaine salts; it also called for the same sentence for offenses involving only 50 grams or more of “a mixture or substance . . . which contains cocaine base.” § 1002, id., at 3207-2 (amending §§ 841(b)(1)(A)(ii)-(iii)) (emphasis added). The ADAA also stipulated a mandatory 5-year sentence for offenses involving 500 grams of a mixture or substance containing coca leaves, cocaine, and cocaine salts, or 5 grams of a mixture or substance containing “cocaine base.” Id., at 3207-3 (amending §§ 841(b)(1)(B)(ii)-(iii)).

Thus, the ADAA established a 100-to-1 ratio for the threshold quantities of cocaine-related substances that triggered the statute’s mandatory minimum penalties. That is, 5 grams or more of “a mixture or substance . . . which contains cocaine base” was penalized as severely as 100 times that amount of the other cocaine-related elements enumerated in the statute. These provisions were still in effect at the time of petitioner’s conviction and sentence. See §§ 841(b)(1)(A)-(B) (2000 ed. and Supp. V).

The United States Sentencing Commission subsequently promulgated Sentencing Guidelines for drug-trafficking offenses.

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Under the Guidelines, the offense levels for drug crimes are tied to the drug type and quantity involved. See United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (Nov. 2010) (USSG). The Commission originally adopted the ADAA’s 100-to-1 ratio for offenses involving “cocaine” and “cocaine base,” though instead of setting only two quantity thresholds, as the ADAA did, the Guidelines “set sentences for the full range of possible drug quantities.” Commission Report 1; see generally Kimbrough, 552 U.S., at 96-97, 128 S. Ct. 558, 169 L. Ed. 2d 481.

The original version of § 2D 1.1(c) did not define “cocaine base” as used in that provision, but in 1993 the Commission issued an amendment to explain that “ ‘[c]ocaine base,’ for the purposes of this guideline, means ‘crack,’ ” that is, “the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.” USSG App. C, Amdt. 487 (effective Nov. 1, 1993); see also 2D1.1(c), n. (D). The Commission noted that “forms of cocaine base other than crack (e.g., coca paste . . . ) will be treated as cocaine.” App. C, Amdt. 487.

C

In April 2005, petitioner Frantz De-Pierre sold two bags of drugs to a Government informant. DePierre was subsequently indicted on a charge of distributing 50 grams or more

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of cocaine base under §§ 841(a)(1) and (b)(1)(A)(iii). At trial, a Government chemist testified that the substance in the bags, which weighed 55.1 grams, was “cocaine base.” Tr. 488, 490. She was not able to identify any sodium bicarbonate. Id., at 499. A police officer testified that the substance in question was “off-white [and] chunky.” Id., at 455.

DePierre asked the District Court to instruct the jury that, in order to find him guilty of distribution of cocaine base, it must find that his offense involved “the form of cocaine base known as crack cocaine.” App. in No. 08-2101 (CA1), p. 43. His proposed jury instruction defined “crack” identically to the Guidelines definition. See id., at 43-44; see also USSG §2D1.1(c), n. (D). In addition, DePi-erre asked the court to instruct the jury that “[c]hemical analysis cannot establish a substance as crack because crack is chemically identical to other forms of cocaine base, although it can reveal the presence of sodium bicarbonate, which is usually used in the processing of crack.” App. in No. 08-2101, at 44.

The court, however, instructed the jury that “the statute that’s relevant asks about cocaine base. Crack cocaine is a form of cocaine base, so you’ll tell us whether or not what was involved is cocaine base . . . .” Tr. 585 (paragraph break omitted). The jury form asked whether the offense involved “over 50 grams of cocaine base.” App. to Pet. for Cert. 17a. The jury found DePierre guilty of distributing 50 grams or more of cocaine base, and the court sentenced DePi-erre to 120 months in prison as required by the statute.

The United States Court of Appeals for the First Circuit affirmed, rejecting DePierre’s argument that § 841(b)(1)(A)(iii) should be read only to apply to offenses involving crack cocaine. 599 F.3d 25, 30-31 (2010). While noting the division on this question among the Courts of Appeals,

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ibid., and nn. 3, 4, the First Circuit adhered to its own precedent and “read the statute according to its terms,” holding that “ ‘cocaine base’ refers to ‘all forms of cocaine base, including but not limited to crack cocaine.’” Id., at 30-31 (quoting United States v. Anderson, 452 F.3d 66, 86-87 (CA1 2006)). We granted certiorari to resolve the longstanding division in authority among the Courts of Appeals on this question. 562 U.S. 960, 131 S. Ct. 458, 178 L. Ed. 2d 286 (2010).

II

A

We begin with the statutory text. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989). Section 841(b)(1)(A) provides a mandatory 10-year minimum sentence for certain drug offenses involving

“(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of—
“(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
“(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;
“(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
“(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (D through (III); [or]
“(iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base.”

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We agree with the Government that the most natural reading of the term “cocaine base” is “cocaine in its base form”—i.e., C17H21NO4, the molecule found in crack cocaine, freebase, and coca paste. On its plain terms, then, “cocaine base” reaches more broadly than just crack cocaine. In arguing to the contrary, DePierre asks us to stray far from the statute’s text, as the term “crack cocaine” appears nowhere in the ADAA (or the United States Code, for that matter). While the Government’s reading is not without its problems, that reading follows from the words Congress chose to include in the text. See United States v. Rodriquez, 553 U.S. 377, 384, 128 S. Ct. 1783, 170 L. Ed. 2d 719 (2008) (eschewing an interpretation that was “not faithful to the statutory text”). In short, the term “cocaine base” is more plausibly read to mean the “chemically basic form of cocaine,” Brief for United States 15, than it is “crack cocaine,” Brief for Petitioner 24, 28.

We agree with DePierre that using the term “cocaine base” to refer to C17H21NO4 is technically redundant; as noted earlier, chemically speaking cocaine is a base. If Congress meant in clause (iii) to penalize more severely offenses

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involving “a mixture or substance . . . which contains” cocaine in its base form it could have simply (and more correctly) used the word “cocaine” instead. But Congress had good reason to use “cocaine base” in the ADAA—to distinguish the substances covered by clause (iii) from other cocaine-related substances. For example, at the time Congress enacted the statute, the word “cocaine” was commonly used to refer to cocaine hydrochloride, i.e., powder cocaine. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 536, 544, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985) (repeatedly referring to cocaine hydrochloride as “cocaine”); “Crack” Cocaine, Hearing before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 99th Cong., 2d Sess., 94 (1986) (hereinafter Crack Cocaine Hearing) (prepared statement of David L. Westrate, Assistant Administrator, Drug Enforcement Admin., Dept, of Justice) (discussing production of “a white, crystalline powder, cocaine hydrochloride, otherwise known simply as cocaine”).

To make things more confusing, in the scientific and medical literature the word “cocaine” is often used to refer to all cocaine-related substances, including powder cocaine. See, e.g., J. Fay, The Alcohol/Drug Abuse Dictionary and Encyclopedia 26-27 (1988); Weiss et al., Cocaine, at 15-25; R. Lewis, Hawley’s Condensed Chemical Dictionary 317 (15th ed. 2007). Accordingly, Congress’ choice to use the admittedly redundant term “cocaine base” to refer to chemically basic cocaine is best understood as an effort to make clear that clause (iii) does not apply to offenses involving powder cocaine or other nonbasic cocaine-related substances.

B

Notwithstanding DePierre’s arguments to the contrary, reading “cocaine base” to mean chemically basic cocaine is also consistent with §841(b)(1)’s somewhat confounding structure. DePierre is correct that the interpretation we adopt today raises the question why Congress included the

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word “cocaine” in subclause (II) of clause (ii). That subclause lists “cocaine, its salts, optical and geometric isomers, and salts of isomers” as elements subject to clause (ii)’s higher quantity threshold. §§ 841(b)(1)(A)(ii)(II), (B)(ii)(II) (emphasis added). If, as we conclude, the terms “cocaine” and “cocaine base” both mean chemically basic cocaine, offenses involving a mixture or substance which contains such cocaine will always be penalized according to the lower quantity thresholds of clause (iii), and never the higher quantity thresholds clause (ii) establishes for mixtures and substances containing “cocaine.”

While this much is true, we do not agree with DePierre that the word “cocaine” in subclause (II) is therefore superfluous. For without the word “cocaine” subclause (II) makes no sense: It would provide a minimum sentence for offenses involving a specified quantity of simply “its salts, optical and geometric isomers, and salts of isomers.” In light of the structure of the subclause, the word “cocaine” is needed as the reference point for “salts” and “isomers.”

The word “cocaine” in subclause (II) also performs another critical function. Clause (iii) penalizes offenses involving “a mixture or substance described in clause (ii) which contains cocaine base.” §§ 841(b)(1)(A)(iii), (B)(iii) (emphasis added). In other words, clause (ii) imposes a penalty for offenses involving cocaine-related substances generally, and clause (iii) imposes a higher penalty for a subset of those substances—the ones that “contai[n] cocaine base.” For this structure to work, however, § 841(b)(1) must “describ[e] in clause (ii)” substances containing chemically basic cocaine, which then comprise the subset described in clause (iii). If

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such substances were not present in clause (ii), clause (iii) would only apply to substances that contain both chemically basic cocaine and one of the other elements enumerated in clause (ii). Presumably, the result would be that clause (iii) would not apply to crack cocaine, freebase, or coca paste offenses, as there is no indication that, in addition to “cocaine base” (i.e., C17H21NO4), those substances contain cocaine “salts” (e.g., cocaine hydrochloride), ecgonine, or any of the other elements enumerated in clause (ii). In short, the exclusion of “cocaine” from clause (ii) would result in clause (iii) effectively describing a null set, which obviously was not Congress’ intent.

Of course, this redundancy could have been avoided by simply drafting clause (iii) to penalize offenses involving “a mixture or substance which contains cocaine base,” without reference to clause (ii)—that is, Congress could have drafted clause (iii) to specify a separate set of cocaine-related substances, not a subset of those in clause (ii). That we may rue inartful legislative drafting, however, does not excuse us from the responsibility of construing a statute as faithfully as possible to its actual text. And as noted earlier, there

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is no textual support for DePierre’s interpretation of “cocaine base” to mean “crack cocaine.”

We also recognize that our reading of “cocaine” in subclause (II) and “cocaine base” in clause (iii) to both refer to chemically basic cocaine is in tension with the usual rule that “when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” Sosa v. Alvarez-Machain, 542 U.S. 692, 711, n. 9, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (2004) (internal quotation marks omitted). However, because “Congress sometimes uses slightly different language to convey the same message,” Deal v. United States, 508 U.S. 129, 134, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993) (internal quotation marks omitted), we must be careful not to place too much emphasis on the marginal semantic divergence between the terms “cocaine” and “cocaine base.” As we have already explained, Congress had good reason to employ the latter term in clause (iii), and the slight inconsistency in nomenclature is insufficient reason to adopt DePierre’s interpretation. Cf. Public Lands Council v. Babbitt, 529 U.S. 728, 746-747, 120 S. Ct. 1815, 146 L. Ed. 2d 753 (2000) (suggesting that a “statute’s basic purpose” might support the conclusion that “two sets of different words mean the same thing”).

III

DePierre offers four additional arguments in support of his view that the term “cocaine base” in clause (iii) is best read to mean “crack cocaine.” We do not find them convincing.

A

DePierre first argues that we should read “cocaine base” to mean “crack cocaine” because, in passing the ADAA, Congress in 1986 intended to penalize crack cocaine offenses more severely than those involving other substances containing C17H21NO4. As is evident from the preceding discussion, this position is not supported by the statutory text. To be sure, the records of the contemporaneous congressional hearings

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suggest that Congress was most concerned with the particular dangers posed by the advent of crack cocaine. See, e.g., Crack Cocaine Hearing 1 (statement of Chairman Roth) (“[We] mee[t] today to examine a frightening and dangerous new twist in the drug abuse problem—the growing availability and use of a cheap, highly addictive, and deadly form of cocaine known on the streets as ‘crack’ ”); see generally Commission Report 116-118; Kimbrough, 552 U.S., at 95-96, 128 S. Ct. 558, 169 L. Ed. 2d 481, 128 S. Ct. 558, 169 L. Ed. 2d 481.

It does not necessarily follow, however, that in passing the ADAA Congress meant for clause (iii)’s lower quantity thresholds to apply exclusively to crack cocaine offenses. Numerous witnesses at the hearings testified that the primary reason crack cocaine was so dangerous was because—contrary to powder cocaine— cocaine in its base form is smoked, which was understood to produce a faster, more intense, and more addictive high than powder cocaine. See, e.g., Crack Cocaine Hearing 20 (statement of Dr. Robert Byck, Yale University School of Medicine) (stating that the ability to inhale vapor “is the reason why crack, or cocaine freebase, is so dangerous”). This is not, however, a feature unique to crack cocaine, and freebase and coca paste were also acknowledged as dangerous, smokeable forms of cocaine. See, e.g., id., at 70 (prepared statement of Dr. Charles R. Schuster, Director, National Institute on Drug Abuse) (reporting on the shift from snorting powder cocaine to “newer more dangerous routes of administration, such as freebase smoking”); id., at 19-20 (statement of Dr. Byck) (describing the damaging effects of cocaine smoking on people in Peru).

Moreover, the testimony of witnesses before Congress did not clearly distinguish between these base forms of cocaine; witnesses repeatedly used terms like “cocaine base,” “freebase,” or “cocaine freebase” in a manner that grouped crack cocaine with other substances containing chemically basic forms of cocaine. See, e.g., Trafficking and Abuse of “Crack” in New York City, Hearing before the House Select Committee on Narcotics Abuse and Control, 99th Cong., 2d

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Sess., 258 (1986) (statement of Robert M. Stut-man, Special Agent in Charge, Drug Enforcement Admin., Dept, of Justice) (“[C]ocaine in its alkaloid form [is] commonly known on the street as crack, rock, base, or freebase”); Crack Cocaine Hearing 71 (statement of Dr. Schuster) (“In other words, ‘crack’ is a street name for cocaine freebase”). In fact, prior to passage of the ADAA, multiple bills were introduced in Congress that imposed enhanced penalties on those who trafficked in “cocaine base,” e.g., S. 2787, 99th Cong., 2d Sess., § 1 (1986), as well as “cocaine freebase,” e.g., H. R. 5394, 99th Cong., 2d Sess., § 101 (1986); H. R. 5484, 99th Cong., 2d Sess., § 608(a) (1986).

Given crack cocaine’s sudden emergence and the similarities it shared with other forms of cocaine, this lack of clarity is understandable, as is Congress’ desire to adopt a statutory term that would encompass all forms. Congress faced what it perceived to be a new threat of massive scope. See, e.g., Crack Cocaine Hearing 4 (statement of Sen. Nunn) (“[C]ocaine use, particularly in the more pure form known as crack, is at near epidemic proportions”); id., at 21 (statement of Dr. Byck) (“We are dealing with a worse drug . . . than we have ever dealt with, or that anybody has ever dealt with in history”). Accordingly, Congress chose statutory language broad enough to meet that threat. As we have noted, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). In the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penalties, we cannot adopt DePierre’s narrow construction. See Lewis v. Chicago, 560 U.S. 205, 215, 130 S. Ct. 2191, 176 L. Ed. 2d 967 (2010) “It is not for us to rewrite [a] statute so that it covers only what we think is necessary to achieve what we think Congress really intended”).

B

DePierre also argues that we should read the term “cocaine base” to mean “crack cocaine,” rather than chemically

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basic cocaine, because the latter definition leads to an absurd result. Cf. EEOC v. Commercial Office Products Co., 486 U.S. 107, 120, 108 S. Ct. 1666, 100 L. Ed. 2d 96 (1988) (plurality opinion). He contends that, because coca leaves themselves contain cocaine, under the Government’s approach an offense involving 5 grams of coca leaves will be subject to the 5-year minimum sentence in § 841(b)(1)(B)(iii), even though those leaves would produce only 0.05 grams of smokeable cocaine. See Brief for Petitioner 41-42. While we agree that it would be questionable to treat 5 grams of coca leaves as equivalent to 500 grams of powder cocaine for minimum-sentence purposes, we are not persuaded that such a result would actually obtain in light of our decision today.

To begin with, it is a matter of dispute between the parties whether coca leaves in their natural, unprocessed form actually contain chemically basic cocaine. Compare Brief for Petitioner 15, 17, n. 10, with Brief for United States 43. Even assuming that DePierre is correct as a matter of chemistry that coca leaves contain cocaine in its base form, see Physicians Brief 2, 11, the Government has averred that it “would not be able to make that showing in court,” Tr. of Oral Arg. 28, and that “coca leaves should not be treated as containing ‘cocaine base’ for purposes of Clause (iii),” Brief for United States 45.

It is unsurprising, therefore, that the Government in its brief disclaimed awareness of any prosecution in which it had sought, or the defendant had received, a statutory-minimum sentence enhanced under clause (iii) for an offense involving coca leaves. Id., at 44. And although this question is not before us today, we note that Congress’ deliberate choice to enumerate “coca leaves” in clause (ii) strongly indicates its intent that offenses involving such leaves be subject to the higher quantity thresholds of that clause. Accordingly,

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there is little danger that the statute will be read in the “absurd” manner DePierre fears.

C

In addition, DePierre suggests that because the Sentencing Commission has, since 1993, defined “cocaine base” to mean “crack” for the purposes of the Federal Sentencing Guidelines, we should do the same with respect to § 841(b)(1). We do not agree. We have never held that, when interpreting a term in a criminal statute, deference is warranted to the Sentencing Commission’s definition of the same term in the Guidelines. Cf. Neal v. United States, 516 U.S. 284, 290-296, 116 S. Ct. 763, 133 L. Ed. 2d 709 (1996). And we need not decide now whether such deference would be appropriate, because the Guidelines do not purport to interpret § 841(b)(1). See USSG §2D1.1(c), n. (D) (“‘Cocaine base,’ for the purposes of this guideline, means ‘crack’ ” (emphasis added)).

We recognize that, because the definition of “cocaine base” in clause (iii) differs from the Guidelines definition, certain sentencing anomalies may result. For example, an offense involving 5 grams of crack cocaine and one involving 5 grams of coca paste both trigger a minimum 5-year sentence under § 841(b)(1)(B)(iii). But defendants convicted of offenses involving only 4 grams of each substance— which do not trigger the statutory minimums—would likely receive different sentences, because of the Guidelines’ differential treatment of those substances with respect to offense level. Compare

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USSG § 2D1.1(c)(9) (providing an offense level of 22 for at least 4 grams of “cocaine base,” i.e., “crack”) with § 2D1.1(c)(14) (providing an offense level of 12 for less than 25 grams of “cocaine,” which, under the Guidelines, includes coca paste). As we have noted in previous opinions, however, such disparities are the inevitable result of the dissimilar operation of the fixed minimum sentences Congress has provided by statute and the graduated sentencing scheme established by the Guidelines. See Kimbrough, 552 U.S., at 107-108, 128 S. Ct. 558, 169 L. Ed. 2d 481; Neal, 516 U.S., at 291-292, 116 S. Ct. 763, 133 L. Ed. 2d 709. Accordingly, we reject DePierre’s suggestion that the term “cocaine base” as used in clause (iii) must be given the same definition as it has under the Guidelines.

D

Finally, DePierre argues that, because § 841(b)(1) is at the very least ambiguous, the rule of lenity requires us to interpret the statute in his favor. See United States v. Santos, 553 U.S. 507, 514, 128 S. Ct. 2020, 170 L. Ed. 2d 912 (2008) (plurality opinion) ( “The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them”). As evinced by the preceding discussion, we cannot say that the statute is crystalline. The rule, however, is reserved for cases where, “after seizing everything from which aid can be derived, the Court is left with an ambiguous statute.” Smith v. United States, 508 U.S. 223, 239, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993) (internal quotation marks and brackets omitted). Applying the normal rules of statutory construction in this case, it is clear that Congress used the term “cocaine base” in clause (iii) to penalize more severely not only offenses involving “crack cocaine,” but those involving substances containing chemically basic cocaine more generally. There is no persuasive justification for reading the statute otherwise. Because the statutory text

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allows us to make far more than “a guess as to what Congress intended,” Reno v. Koray, 515 U.S. 50, 65, 115 S. Ct. 2021, 132 L. Ed. 2d 46 (1995) (internal quotation marks omitted), the rule of lenity does not apply in DePierre’s favor.

We hold that the term “cocaine base” as used in § 841(b)(1) means not just “crack cocaine,” but cocaine in its chemically basic form. We therefore affirm the judgment of the Court of Appeals.

It is so ordered.

SEPARATE OPINION

Justice Scalia,

concurring in part and concurring in the judgment.

I concur in the Court’s judgment and in all of its opinion except for Part III-A, which needlessly contradicts DePierre’s version of legislative history. Our holding today is that the statutory term “cocaine base” refers to cocaine base, rather than, as DePierre contends, one particular type of cocaine base. This holding is in my view obvious, and the Court does not disagree. It begins its discussion of the legislative history by saying that De-Pierre’s position “is not supported by the statutory text,” ante, at 83, 180 L. Ed. 2d, at 126; and ends the discussion by saying that “ [i]n the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penalties, we cannot adopt DePierre’s narrow construction,” ante, at 85, 180 L. Ed. 2d, at 127.

Everything in between could and should have been omitted. Even if Dr. Byck had not lectured an undetermined number of likely somnolent Senators on “the damaging effects of cocaine smoking on people in Peru,” ante, at 84, 180 L. Ed. 2d, at 127, we would still hold that the words “cocaine base” mean cocaine base. And here, as always, the needless detour into legislative history is not harmless. It conveys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this. In fact, however, even a

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hypothetical House Report expressing the Committee’s misunderstanding (or perhaps just the Committee staffs misunderstanding, who knows?) that “cocaine base means crack cocaine” could not have changed the outcome of today’s opinion.

      . There are more detailed theories of how acids and bases interact. For our purposes, it is sufficient to note the fundamental proposition that a base and an acid can combine to form a salt, and all three are different types of compounds. See generally Brief for Individual Physicians and Scientists as Amici Curiae 8: A Dictionary of Chemistry 6-7, 62-63, 496 (J. Daintith ed., 5th ed. 2004).

      . Though the terms “crack” and “crack cocaine” are interchangeable, in this opinion we adopt DePierre’s practice and generally employ the latter.

      . Due to a recent amendment, the quantity ratio in § 841(b)(1) is now roughly 18 to 1, but otherwise the relevant statutory provisions are unchanged from those in effect at the time DePierre was sentenced. See Pair Sentencing Act of 2010, § 2, 124 Stat. 2372 (changing the quantity in § 841(b)(1)(A)(iii) from 50 to 280 grams and in subparagraph (B)(iii) from 5 to 28 grams).

      . In 2007, the Commission increased the quantity of cocaine base required to trigger each offense level, reducing the cocaine-base-to-cocaine- sentencing ratio under the Guidelines. See USSG Supp. App. C, Amdt. 706 (effective Nov. 1, 2007). Unless otherwise noted, we cite to the current versions of the relevant Guidelines provisions.

      . The Guidelines’ Drug Quantity Table only lists “cocaine” and “cocaine base” among its enumerated controlled substances, but the application notes make clear that the term “cocaine” includes “ecgonine and coca leaves,” as well as “salts, isomers, [and] salts of isomers” of cocaine. § 2D1.1(c), and comment., n. 5.

      . DePierre was also indicted for distribution of powder cocaine under § 841(a)(1) and possession of a firearm with an obliterated serial number under 18 U.S.C. § 922(k). He was convicted by jury of the former offense and pleaded guilty to the latter prior to trial.

      . As noted earlier, § 841(b)(1)(B) calls for a mandatory minimum 5-year sentence for offenses involving exactly the same substances; the only difference in subparagraph (B) is that the threshold quantity in clause (ii) is 500 grams, and in clause (iii) it is 5 grams. Because the 100-to-1 ratio is a feature of both §§841(b)(1)( A) and (B), and those subparagraphs are identical in all other respects, throughout this opinion we use the terms “clause (ii)" and “clause (iii)" to refer to those clauses as present in either subparagraph.

      . The Government urges us to give “cocaine base" its “settled, unambiguous scientific meaning," i.e., “the form of cocaine classified chemically as a base, with the chemical formula C17H21NO4 and a particular molecular structure." Brief for United States 20; cf. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342, 111 S. Ct. 807, 112 L. Ed. 2d 866 (1991) (“In the absence of contrary indication, we assume that when a statute uses ... a term [of art], Congress intended it to have its established meaning"). But the scientifically proper appellation for C17H21NO4 is “cocaine" tout court, and the Government cites no source that uses “cocaine base’’ to refer to C17H21NO4 (save lower-court opinions construing the statute at issue in this case). Therefore, there is no “settled meaning"—scientific or otherwise—of “cocaine base" for us to apply to § 841(b)(1).

      . The statute itself gives us good reason to reject DePierre’s reading. Substituting “crack cocaine” for “cocaine base” would mean that clause (iii) only applies to a “mixture or substance . . . which contains [crack cocaine].” But crack cocaine is itself a “substance” involved in drug offenses; it is the end product that is bought, sold, and consumed. We are aware of no substance that “contains” crack cocaine.

      . DePierre makes a similar argument with respect to coca leaves: Because they contain chemically basic cocaine, he contends, under the Government’s interpretation offenses involving coca leaves will never be subject to the lower quantity threshold associated with subclause (I), rendering that provision superfluous. For reasons discussed later, see infra, at 85-87, 180 L. Ed. 2d, at 127-128, we are not convinced.

      . At the time the ADAA was enacted, the definition of “narcotic drug” in the same subchapter of the United States Code included, as relevant, the following:
      “(C) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed.
      “(D) Cocaine, its salts, optical and geometric isomers, and salts of isomers.
      “(E) Ecgonine, its derivatives, their salts, isomers, and salts of isomers.
      “(F) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in [the preceding] subparagraphs . . . .” 21 U.S.C. § 802(17) (1982 ed., Supp. III).
      Accordingly, the likely explanation for the ADAA’s curious structure is that Congress simply adopted this pre-existing enumeration of cocaine-related controlled substances, and then en-grafted clause (iii) to provide enhanced penalties for the subset of offenses involving chemically basic cocaine.

      . It appears that Congress itself is of the view that coca leaves contain “cocaine,” as subclause (I) exempts offenses involving “coca leaves from which cocaine . . . ha[s] been removed.” §§ 84 1(b)(1)(A)(ii)(I), (B)(ii)(I).

      . We also disagree with DePierre’s contention that Congress’ failure to reject the Guidelines definition of “cocaine base” means that it has effectively adopted that interpretation with respect to the statute. See Kimbrough v. United States, 552 U.S. 85, 106, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) (  “Ordinarily, we resist reading congressional intent into congressional inaction”).

      . In defining “cocaine base’’ as “crack,” the Commission explained that “forms of cocaine base other than crack” are treated as “cocaine” for purposes of the Guidelines. USSG App. C, Amdt. 487 (effective Nov. 1, 1993). This includes coca paste, which the Commission described as “an intermediate step in the processing of coca leaves into cocaine hydrochloride.” Ibid. As we have explained, however, coca paste is a smokeable form of cocaine in its own right, and we see no reason why, as a statutory matter, it should be subject to lesser penalties than crack or freebase.