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Isn’t this backwards? Are you allowed to use CFR to interpret United States Code? Regulators can’t claim jurisdiction unless a statute grants them jurisdiction right?
No, administrative agencies always promulgate regulations which interpret statutes; they have to, because statutes are always going to use broad terms. " "Congress simply cannot do its job absent an ability to delegate power under broad general directives. . . . Accordingly, this Court has deemed it "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.'" The key issue is how much deference courts should give to those interpretations.
More specifically, the statute give the EPA power regarding "the waters of the United States," but does not define that term further. Someone has to specify what that means, and initially that is going to be the administrative agency. Ultimately, it will be the courts, of course, or Congress itself, since if it does not like a regulation it can amend the statute accordingly.
That's the whole issue though right? Congress told EPA to regulate "the waters of the United States", there was some amendment passed that implied that this includes "wetlands adjacent thereto" (because you know, what else are you gonna do about this?), then the EPA decided that this means they can regulate any relatively flat area with reasonably high annual precipitation (i.e. the most densely populated parts of the country).
Plessy died because it was no longer possible to maintain the legal fiction that segregated facilities were "separate but equal". When Chevron dies (and it will) it will be because it is no longer possible to maintain the legal fiction that agencies are operating within reasonable interpretations of statutes.
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