UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AMER BUS ASSN

v.

SLATER, RODNEY E.


99-5390a

D.C. Cir. 2000


*	*	*


Sentelle, Circuit Judge: American Bus Association  ("ABA") appeals from
a District Court judgment upholding a  Department of Transportation
("DOT") rule that implements  portions of the Americans with
Disabilities Act ("ADA" or  "Act"), 42 U.S.C. s 12101 et seq. (1994).
Appellant challenges  those portions of the rule that authorize the
imposition of  money damages against bus companies that fail to comply
 with the ADA. Appellant claims that the remedies enumerat- ed in the
ADA are exclusive, and may not be supplemented  with a money-damages
scheme. It also alleges that DOT  violated the Administrative
Procedure Act ("APA"), 5 U.S.C.  s 551 et seq. (1994), because it
provided neither notice that it  was considering authorizing monetary
relief nor opportunity  for the public to comment.


We conclude that DOT lacked the statutory authority to  impose money
damages on bus companies. Congress has  given the agency no authority
to establish remedies in addi- tion to those that are specified in the
ADA. Because we hold  that DOT exceeded the scope of its authority, we
need not  reach Appellant's notice-and-comment claim.


I. BACKGROUND


A. Factual background


Title III of the ADA generally requires operators of public 
accommodations, including common carriers, to make their  services
accessible to disabled persons. See 42 U.S.C.  ss 12181-88 (1994).
Toward that end, the ADA instructs the  Secretary of
Transportation--which post is presently held by  Appellee Rodney E.
Slater--to promulgate rules concerning  the accessibility of
over-the-road buses ("OTRBs"), which are  large motorcoaches designed


id. s 12186(a). On September 6, 1991, DOT issued a set of  interim
rules governing OTRB accessibility. These rules  required bus
companies to provide boarding assistance to  disabled passengers, and
permitted operators to require pas- sengers who needed such assistance
to provide them with 48  hours of advance notice. DOT did not, at the
time, oblige  operators to equip their OTRBs with wheelchair lifts,
nor did  it require operators to pay money damages to disabled per-
sons whose travel plans were frustrated. See Transportation  for
Individuals with Disabilities, 56 Fed. Reg. 45,584, 45,640  (1991).


In 1993, DOT issued an advance notice of proposed rule- making in which
the agency identified the OTRB-accessibility  issues it hoped to
resolve. Among DOT's concerns were  whether all OTRB routes should
have accessibility require- ments, and whether disabled passengers'
needs could be  accommodated by an "on-call" system under which they
could  request an accessible OTRB in advance. See Transportation  for
Individuals with Disabilities; Accessibility of Over-the- Road Buses,
58 Fed. Reg. 52,735, 52,738-39 (1993). The  public more than complied
with the agency's request for  comments: hundreds were submitted,
mostly from disabled  persons' advocacy groups and organizations
representing the  bus industry.


On March 25, 1998, DOT published a notice of proposed  rulemaking
("NPRM") that proposed requiring all fixed-route  OTRBs (regularly
scheduled buses, such as Greyhound) to  install wheelchair lifts, and
obliging charter/tour OTRBs to  provide lift-equipped buses to
passengers who request them  48 hours in advance. The NPRM made no
mention of the  possibility of money damages, or any other scheme to
com- pensate disabled passengers whose travel plans were frustrat- ed
by an inaccessible OTRB. See Transportation for Individ- uals with
Disabilities, 63 Fed. Reg. 14,560-71 (1998).


After considering the over 400 comments submitted in  response to its
NPRM, the agency issued its final rule on  September 28, 1998. Several
commentators had urged DOT  to promulgate an "on-call," or
reservation-based, rule, under 


which all OTRB operators (and not just charter/tour opera- tors) would
be required to provide wheelchair-accessible bus- es to passengers who
gave 48-hours advance notice of their  need. See, e.g., Comments of
Coach USA, Inc. at 19-21. The  agency rejected that alternative. Its
final rule essentially  imposed the obligations proposed in the
NPRM--requiring  fixed-route OTRB operators to equip their entire
fleets with  wheelchair lifts--with the additional requirement that
bus  companies pay "compensation" to disabled passengers when  they
fail to provide them with accessible service. A bus  operator will be
assessed a $300 fine for its first violation,  $400 for its second,
and so on in $100 increments up to $700  for its fifth and all
subsequent infractions. See Transporta- tion for Individuals with
Disabilities, 63 Fed. Reg. 51,670,  51,692 (1998) (codified at 49


B. The District Court decision


Two days after the final rule was promulgated, September  30, 1998,
Appellant American Bus Association filed a com- plaint in the United
States District Court for the District of  Columbia. ABA, an
organization representing the bus indus- try, alleged, among other
things, that DOT had no statutory  authority to implement the
money-damages scheme, that the  agency had not provided adequate
notice that it intended to  adopt a remedies provision, and that the
rule violated the  National Environmental Policy Act, 42 U.S.C. s 4321


On the parties' cross-motions for summary judgment, the  District Court
rejected each of ABA's contentions. The court  found that the agency
had provided adequate notice that it  was considering a money-damages
provision. While the  NPRM may not expressly have mentioned the
possibility of  money damages, the remedies scheme was the "logical
out- growth" of the agency's often-expressed concern that bus 
companies would fail to provide accessible service to disabled 
passengers. See American Bus Ass'n v. Slater, No. 98-2351,  Mem. Op.
at 22-23 (D.D.C. Sept. 10, 1999) ("Mem. Op.")  (citing, inter alia,
United Steelworkers v. Marshall, 647 F.2d  1189, 1221 (D.C. Cir. 1980)
("Where the change between the 


proposed and final rule is important, the question for the  court is
whether the final rule is a 'logical outgrowth' of the  rulemaking
proceeding.")). Indeed, the court reasoned, ABA  had actual notice
that DOT was considering a damages  provision, as its own submitted
comment expressly endorsed  a proposal that disappointed passengers
should be permitted  to seek monetary relief. See id. at 25-26.


ABA's argument that the agency exceeded its statutory  authority by
imposing money damages fared no better. The  District Court cited the
Supreme Court's pronouncement  that, if an authorizing "statute is
silent or ambiguous," courts  must uphold "a reasonable interpretation
made by the admin- istrator of an agency." Chevron U.S.A. Inc. v.
Natural  Resources Defense Council, Inc., 467 U.S. 837, 843, 844 
(1984). Such an ambiguity, the court reasoned, exists here:  "The
plain language [of the ADA] indicates that Congress did  not
explicitly forbid the Secretary from including a compensa- tion
mechanism in the OTRB accessibility regulations."  Mem. Op. at 28.
Because of the ADA's silence on the  availability of money
damages--because "[a] gap exists in this  enabling statute," id.--the
court concluded that Chevron  obliged it to defer to DOT's reasonable


Nor was the District Court persuaded by ABA's argument  that the
agency's money-damages scheme is foreclosed by  APA s 558(b), which
establishes that "[a] sanction may not be  imposed ... except within
jurisdiction delegated to the agen- cy and as authorized by law." 5
U.S.C. s 558(b) (1994). The  court conceded that DOT had authorized
sanctions, but it  reasoned that they were not penal sanctions.
Because the  sanctions were designed to remedy the injuries suffered
by  disabled persons whose travel needs were not accommodated,  and
because the fines would be paid directly to the disap- pointed
passengers, "this court concludes that the provision is  a regulatory
sanction with a remedial purpose and not a  penalty." Mem. Op. at 27.
The court therefore entered  summary judgment in favor of the agency's


This appeal followed. ABA no longer contests DOT's  decision to require
that OTRB companies equip their buses 


with wheelchair lifts, and only its money-damages and notice-
and-comment claims are before this Court.


II. DISCUSSION


A. Chevron and ADA s 12188


The principal issue in this case is whether DOT had the  statutory
authority to adopt a rule imposing money damages  on bus companies
that fail to provide accessible service to  disabled passengers.
Because, DOT proposes, this case in- volves a dispute as to whether
that rule is in fact authorized  by the statute it purports to
implement, it is governed by the  familiar two-step analysis announced
in Chevron U.S.A. Inc.  v. Natural Resources Defense Council, Inc.,
467 U.S. 837  (1984). "First, always," the reviewing court must
consider  "whether Congress has directly spoken to the precise ques-
tion at issue." An affirmative answer "is the end of the  matter; for
the court, as well as the agency, must give effect  to the
unambiguously expressed intent of Congress." Id. at  842-43. If, on
the other hand, "the statute is silent or  ambiguous with respect to
the specific issue," the court must  uphold "a reasonable
interpretation made by the administra- tor of an agency." Id. at 843,


Applying Chevron to this case, we conclude that Congress  unambiguously
intended to preclude DOT from authorizing  money damages. The ADA's
carefully crafted remedies  scheme reveals the legislature's intent
that the statute's  enumerated remedies were to be exclusive, and
consequent  intent to deny agencies the power to authorize
supplementary  monetary relief. The relevant portion of the ADA


The remedies and procedures set forth in section  2000a-3(a) of this
title are the remedies and procedures  this subchapter provides to any
person who is being  subjected to discrimination on the basis of
disability in  violation of this subchapter or who has reasonable 


grounds for believing that such person is about to be  subjected to
discrimination in violation of section 12183 of  this title.


42 U.S.C. s 12188(a)(1) (emphasis added).


By preceding the words "remedies and procedures" with  the definite
article "the," as opposed to the more general "a"  or "an," Congress
made clear that it understood  s 2000a-3(a)'s remedies to be
exclusive. Indeed, "[i]t is a  rule of law well established that the
definite article 'the'  particularizes the subject which it precedes.
It is a word of  limitation as opposed to the indefinite or
generalizing force of  'a' or 'an.' " Brooks v. Zabka, 450 P.2d 653,
655 (Colo. 1969)  (en banc); see also Black's Law Dictionary 1477 (6th
ed.  1990) ("In construing statute, definite article 'the' particular-
izes the subject which it precedes and is word of limitation as 
opposed to indefinite or generalizing force 'a' or 'an'."). If 
Congress had intended those remedies not to be exclusive, it  would
have provided that the relief available to an ADA  plaintiff


The remedies set forth in 42 U.S.C. Sec. 2000a-3(a)--which is  part of
the 1964 Civil Rights Act--do not include money  damages. See Newman
v. Piggie Park Enters., Inc., 390 U.S.  400, 402 (1968) ("When a
plaintiff brings an action under that  Title, he cannot recover
damages."). Instead, as that subsec- tion's caption ("Civil actions
for injunctive relief") indicates, a  party may invoke s 2000a-3(a)
only in an effort to obtain  "preventive relief, including an
application for a permanent or  temporary injunction, restraining
order, or other order." 42  U.S.C. s 2000a-3(a). As the Supreme Court
has explained, a  s 2000a-3(a) plaintiff primarily seeks not redress
of his own  injury, but to vindicate the policy of the United States 
government. See Newman, 390 U.S. at 402 ("If he obtains an 
injunction, he does so not for himself alone but also as a  'private
attorney general,' vindicating a policy that Congress  considered of


DOT additionally attempts to locate its authority to impose  fines in
the ADA's specification that the Attorney General  may bring a civil
action for money damages against OTRB  operators that fail to provide
accessible service. See 42 


U.S.C. s 12188(b) (1994). "Congress contemplated," the  agency submits,
"that some type of compensation might be  paid from an operator to a
disappointed rider." Appellee's  brief at 54. Not only does the
civil-action provision not assist  DOT's claim that the ADA empowers
it to authorize monetary  relief, it actually undermines it. Congress
did indeed contem- plate that money damages would be available--but it
also  specified the precise conditions under which they could be 
paid. The monetary relief must be (1) awarded by a court (2)  in a
civil action (3) that was brought by the Attorney General.  By
specifying the circumstances under which monetary relief  will be
available, Congress evinced its intent that damages  would be
available in no others. See Transamerica Mortgage  Advisors, Inc. v.
Lewis, 444 U.S. 11, 19 (1979) (recognizing  that "it is an elemental
canon of statutory construction that  where a statute expressly
provides a particular remedy or  remedies, a court must be chary of


DOT's rule satisfies none of those three conditions. First,  the agency
itself, not an Article III court, presumably would  levy fines against
OTRB companies. Second, and as a conse- quence, the fines would not be
assessed in a civil action.  Finally, DOT makes monetary relief
available even absent the  participation of the Attorney General. In
fact, the agency is  somewhat, and perhaps deliberately, vague as to
how it will  enforce its sanctions: The parties dispute whether a
disap- pointed passenger would hold a judicially cognizable right to 
compensation. Compare Appellant's brief at 25 n.16, 26 n.17,  with
Appellee's brief at 54-55 n.10. And at one point in its 
briefs--though not, crucially, in the rule itself--the agency  claims
that the Attorney General would be responsible for  enforcement. See
Appellee's brief at 54-55 n.10. But it is  difficult to see how that
could be the case, since DOT's rule  describes the compensation
procedure as involving "a sum  sent directly to the passenger whose
travel plans were dis- rupted," and indeed states that "[n]o
administrative proce- dure"--or, presumably, judicial procedure--"is
needed."  Transportation for Individuals with Disabilities, 63 Fed.


51,670, 51,687 (1998) (emphasis added).1


We conclude, therefore, that Congress has not granted  DOT the power to
impose money damages on bus companies  that fail to provide accessible
service to disabled passengers.  We need not evaluate the
reasonableness of the agency's rule  under Chevron's second step,
since we are bound in the first  instance to "give effect" to
Congress's "unambiguously ex- pressed intent." Chevron, 467 U.S. at


B. APA s 558(b)


Our conclusion that DOT lacks the authority to authorize  money damages
is confirmed by the Administrative Proce- dure Act, s 558(b) of which
establishes that "[a] sanction may  not be imposed or a substantive
rule or order issued except  within jurisdiction delegated to the
agency and as authorized  by law." 5 U.S.C. s 558(b) (1994). There is
no dispute in  this case that DOT's fines are sanctions; the District
Court  held as much, and the agency does not appear to challenge  that
finding. Instead, the District Court apparently conclud- ed that s
558(b) requires express grants of statutory authori- ty, not for all
sanctions, but only for the ones that can be  characterized as
"penal." And, the court submitted, the  OTRB rules do not impose a
"penalty" inasmuch as they  impose "a regulatory sanction with a
remedial purpose."  Memorandum Opinion at 27.


That conclusion is likely erroneous for two reasons. First,  s 558(b)
requires statutory authority for all sanctions, not  merely those that
can be characterized as penal. Second,  DOT's compensation rule does,
in fact, impose penalties that  go beyond simple compensation. DOT's
efforts to distinguish  simple sanctions (which, it submits, may be
imposed without  an express authorization) from punitive sanctions
(which may  not) rest on the following syllogism:




__________

n 1 If the Secretary intends to assert that by means of his rule he 
can channel the choices of the Attorney General and the courts  within
the ADA remedy structure, he points to nothing suggesting  such
authority.


(1) Section 558(b) permits agencies to impose non- punitive sanctions,
even in the absence of express  statutory authority.


(2) DOT's sanctions are non-punitive.


(3) Therefore, DOT could impose the sanctions absent  express statutory
authority.


The problem with the syllogism is that its major premise is  flawed.
Section 558(b) does not distinguish on its face be- tween punitive
sanctions and ordinary sanctions. It speaks of  "sanctions," period,
and provides no basis for supposing that  one type may be imposed
without statutory authorization, but  that other types may not. Nor
does DOT cite any cases that  distinguish between punitive and
ordinary sanctions. It sim- ply moves from its conclusion that its
rule imposes a sanction  to drawing a distinction between the two
types, and omits the  necessary middle step of explaining why that
distinction has  any legal significance.


Nor is the syllogism's minor premise--that the agency's  sanctions are
non-punitive--persuasive. The amounts which  bus companies will be
made to pay are not a function of a  would-be passenger's injury, but
of the number of times the  company has violated the ADA in the past.
The fines begin  at $300, for an OTRB operator's first offense, and
escalate in  increments of $100 up to $700, for an operator's fifth
and all  subsequent offenses. See Transportation for Individuals with 
Disabilities, 63 Fed. Reg. 51,670, 51,692 (1998) (codified at 49 
C.F.R. s 37.199 (2000)). There is no connection between the  fine
imposed and the injury suffered. The fines are unrelated  to the
out-of-pocket expenses--which might include lodging,  meals, and
alternative transportation--a disappointed passen- ger could be
expected to pay. Instead, the agency is con- cerned principally with
punishing noncomplying OTRB opera- tors.


To be sure, the agency's sanctions may have several objec- tives, one
of which is to punish and another of which is to  remedy disabled
persons' injuries. But this Court regards as  a penalty any sanction
that "goes beyond remedying the 


damage caused to the harmed parties by the defendant's  action."
Johnson v. SEC, 87 F.3d 484, 488 (D.C. Cir. 1996)  (emphasis added).
In other words, a sanction is a penalty  even if only one of its
various objectives is to punish wrongful  conduct; that is, if it
"serv[es] in part to punish." Austin v.  United States, 509 U.S. 602,
610 (1993) (emphasis added).  Beyond cavil, DOT's sanctions are at
least in part designed to  punish, which is why the damages an OTRB
operator must  pay turn on the number of violations it has committed
and not  the extent of the disappointed passenger's injury.


Nor are we persuaded by DOT's attempt to circumvent  s 558(b)'s
directive by claiming that agencies possess a limit- ed, but inherent,
power to impose sanctions. DOT cites both  Touche Ross & Co. v. SEC,
609 F.2d 570 (2d Cir. 1979), and  Checkosky v. SEC, 23 F.3d 452 (D.C.
Cir. 1994), for the  proposition that an agency's general power to
protect the  integrity of its administrative processes entails an
inherent  sanctioning power. Both cases are easily dismissed or


Touche Ross concerned a Securities and Exchange Com- mission rule that
enabled the SEC to discipline attorneys by  refusing to allow them to
practice before it. The Second  Circuit concluded that an agency has a
limited power to  impose sanctions that are not expressly authorized
by statute,  but only ones designed to "protect the integrity of its
own  processes." Touche Ross, 609 F.2d at 582. The Commis- sion's
disciplinary rule did not apply to the primary conduct  of regulated
entities, but was simply designed to "ensure that  those
professionals, on whom the Commission relies heavily in  the
performance of its statutory duties, perform their tasks  diligently
and with a reasonable degree of competence." Id.  The SEC's
housekeeping-type rule is quite unlike the rule  promulgated by DOT
here, which penalizes regulated parties  for violations of their
statutory duties. The agency's authori- zation of monetary relief is
not designed to "protect the  integrity of its own processes," but to
encourage OTRB  companies to modify their primary conduct.


DOT's reliance on our own decision in Checkosky is even  more easily
dismissed. The portion of Checkosky on which  the agency relies did
not command a majority of this Court  but is, instead, the separate
opinion of a single Judge. See  Appellee's brief at 55 (citing
Checkosky, 23 F.3d at 455  (separate opinion of Silberman, J.)). And
even if the Checko- sky opinion did bind us, it would be
distinguishable on the  same grounds as Touche Ross: Like Touche Ross,
that case  concerned the SEC's authority to promulgate an internal 
disciplinary rule. DOT's inherent sanctioning power extends  only to
"protect[ing] the integrity of the agency's administra- tive
processes," Checkosky, 23 F.3d at 455 (separate opinion  of Silberman,
J.), and not to modifying regulated parties'  primary conduct.


We conclude, therefore, that DOT lacked the statutory  authority to
require OTRB companies to pay money damages  to the disabled
passengers whom they fail to accommodate.  Congress could not speak
more clearly than it has in the text  of the APA: "a sanction may not
be imposed or a substantive  rule or order issued except within
jurisdiction delegated to  the agency and as authorized by law." 5


C. Notice-and-comment


ABA additionally claims that DOT violated the APA by  failing to
provide it with adequate notice that it was consider- ing, and with
the opportunity to comment on, its money- damages rule. See 5 U.S.C. s
553(b), (c) (1994). Because we  hold that DOT had no authority to
promulgate that rule in  the first instance, the Court finds it
unnecessary to take up  ABA's notice-and-comment claim. The agency has
exceeded  the scope of the authority delegated to it by Congress, and
it  matters not that they adhered to the APA's procedural 


III. CONCLUSION


Congress has not conferred on DOT the power to authorize  money damages
against OTRB companies that fail to comply 


with the ADA. We therefore reverse the District Court's  grant of
summary judgment in favor of the agency's Secre- tary.


It is so ordered.


Sentelle, Circuit Judge, concurring: I write separately to  express my
view that the Court need not reach the second  step of Chevron for a
more fundamental reason; namely, that  the ADA contains no ambiguity
that could trigger that analy- sis. DOT proposes as the statute's
deference-triggering am- biguity the fact that the statute does not
expressly state that  the remedies detailed in s 12188 are to be
"exclusive." In  essence, the agency's position--and the District
Court's hold- ing--is that the absence of a statutory grant of power
is itself  an ambiguity that calls for Chevron deference. See, e.g., 
Mem. Op. at 28 ("The plain language [of the ADA] indicates  that
Congress did not explicitly forbid the Secretary from  including a
compensation mechanism in the OTRB accessibili- ty regulations.");
Appellee's brief at 43 (proposing that the  "first step of the Chevron
analysis ... can be resolved quickly  here" because Congress "neither
required nor prohibited the  Secretary from promulgating a
compensation provision" and  because "Congress did not place any
specific limitations on  the contents of the OTRB rules"). An agency,
DOT submits,  is free to impose any otherwise-reasonable rule that


I would conclude that the second step of Chevron is not  even
implicated in this case. Chevron step two applies only  when a statute
contains an ambiguity. But Congress's failure  to grant an agency a
given power is not an ambiguity as to  whether that power has, in
fact, been granted. On the  contrary, and as this Court persistently
has recognized, a  statutory silence on the granting of a power is a
denial of  that power to the agency. See, e.g., Backcountry Against 
Dumps v. EPA, 100 F.3d 147, 150 (D.C. Cir. 1996) (rejecting  EPA's
argument "that, since section 6945(c) is silent as to its  application
to Indian tribes, the statute is 'ambiguous' ");  Ethyl Corp. v. EPA,
51 F.3d 1053, 1060 (D.C. Cir. 1995) ("We  refuse, once again, to
presume a delegation of power merely  because Congress has not
expressly withheld such power.");  see also Adams Fruit Co. v.
Barrett, 494 U.S. 638, 649 (1990)  ("A 'gap' is not created in a
statutory scheme merely because  a statute does not restate the truism
that States may not pre- empt federal law.").


This Court, while sitting en banc, has already disposed of  DOT's
argument that the judiciary must afford Chevron  deference to an
agency's interpretation of a statutory silence.  "To suggest," we


that Chevron step two is implicated any time a statute  does not
expressly negate the existence of a claimed  administrative power
(i.e. when the statute is not written  in "thou shalt not" terms), is
both flatly unfaithful to the  principles of administrative law
outlined above, and refut- ed by precedent.... Were courts to presume
a delega- tion of power absent an express withholding of such  power,
agencies would enjoy virtually limitless hegemo- ny, a result plainly
out of keeping with Chevron and quite  likely with the Constitution as


Railway Labor Executives' Ass'n v. National Mediation Bd.,  29 F.3d
655, 671 (D.C. Cir. 1994) (en banc) (emphasis in  original) (citations
omitted). The ADA is not ambiguous on  whether it grants DOT the power
to authorize money dam- ages against non-complying bus companies. The
statute sim- ply does not grant it that power.


The proposition that statutory silences are not Chevron- triggering
ambiguities follows from the very nature of admin- istrative agencies.
Agencies have no inherent powers. They  instead are creatures of
statute, and may act only because,  and only to the extent that,
Congress affirmatively has dele- gated them the power to act. See
Louisiana Pub. Serv.  Comm'n v. FCC, 476 U.S. 355, 374 (1986) ("[A]n
agency  literally has no power to act ... unless and until Congress 
confers power upon it."); Railway Labor Executives' Ass'n,  29 F.3d at
670 ("Agencies owe their capacity to act to the  delegation of
authority, either express or implied, from the  legislature.").


Hence if Congress wishes to deny an agency a given power,  it need not
expressly restrict the agency; it is enough for  Congress simply to
decline to delegate power. In the same  way, a statute that is
completely silent on the question of  whether it confers a power does
not vest the agency with the  discretion to determine the scope of
that power. See Natural 


Resources Defense Council v. Reilly, 983 F.2d 259, 266 (D.C.  Cir.
1993) (" '[I]t is only legislative intent to delegate such  authority
that entitles an agency to advance its own statutory  construction for
review under the deferential second prong of  Chevron.' " (quoting
Kansas City v. Dep't of Housing &  Urban Dev., 923 F.2d 188, 191-92
(D.C. Cir. 1991))). In order  for there to be an ambiguous grant of
power, there must be a  grant of power in the first instance. There is
none here.


Moreover, accepting DOT's contention--that a statutory  silence
empowers it to promulgate any rules that Congress  has not expressly
forbidden--would vest agencies with near- plenary authority. Agencies
would become the nation's prin- cipal lawmakers. After all, it is the
norm for statutes to be  silent on whether they grant various powers
to agencies. The  ADA is silent on whether DOT has the power to oblige
bus  companies to give disabled persons free passage. It is also 
silent on whether DOT has the power to require that bus  companies
transport disabled passengers in their own individ- ual buses. If we
were to accept DOT's view, we would be  obliged to conclude that
Congress somehow, if only ambigu- ously, has authorized the agency to
adopt both of those rules,  and consequently would be bound to afford
them Chevron  deference. We would not, of course, be obliged to
rubber- stamp an agency's interpretation of those, or any other, 
statutory silences; any such interpretation would still have to 
satisfy the reasonableness test of Chevron step two. See  Chevron, 467
U.S. at 844 (requiring courts to uphold only "a  reasonable
interpretation made by the administrator of an  agency"). But it makes
a mockery of Chevron to suggest  that its second prong is even
implicated by Congress's failure  to deny a power to an agency.


The agency's position--that that which is not forbidden is 
permitted--turns the basic assumption of the American sys- tem of
government on its head. Our Constitution permits the  national
government to exercise only those powers affirma- tively granted to it
by the people of the several states. See,  e.g., U.S. Const. amend. X;
McCulloch v. Maryland, 17 U.S.  (4 Wheat.) 316, 405 (1819) ("This
government is acknowledged  by all to be one of enumerated powers");


son, 5 U.S. (1 Cranch) 137, 176 (1803) ("The powers of the  legislature
are defined and limited; and that those limits may  not be mistaken or
forgotten, the constitution is written.").  The Constitution's
presumption is that a power not expressly  conferred on the federal
government has been denied to it.  The same principle informs
Congress's delegations of power  to administrative agencies. Unless
Congress delegates au- thority to an agency, the agency is without
power to act.  And, it goes without saying, courts need not defer to
an  agency's interpretation, reasonable or otherwise, of a non-