Barrett, J., concurring
“unique political history”: the FDA’s longstanding disavowal of authority to regulate it, Congress’s creation of “a distinct regulatory scheme for tobacco products,” and the tobacco industry’s “significant” role in “the American economy.” Id., at 159–160. In light of those considerations, we concluded that “Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Id., at 160.
We have also been “[s]keptical of mismatches” between broad “invocations of power by agencies” and relatively narrow “statutes that purport to delegate that power.” In re MCP No. 165, OSHA, Interim Final Rule: Covid–19 Vaccination and Testing, 20 F. 4th 264, 272 (CA6 2021) (Sutton, C. J., dissenting from denial of initial hearing en banc). Just as an instruction to “pick up dessert” is not permission to buy a four-tier wedding cake, Congress’s use of a “subtle device” is not authorization for agency action of “enormous importance.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994); cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). This principle explains why the Centers for Disease Control and Prevention’s (CDC’s) general authority to “ ‘prevent the … spread of communicable diseases’ ” did not authorize a nationwide eviction moratorium. Alabama Assn. of Realtors, 594 U. S., at ___–___, ___ (slip op., at 2–3, 6). The statute, we observed, was a “wafer-thin reed” that could not support the assertion of “such sweeping power.” Id., at ___ (slip op., at 7). Likewise, in West Virginia, we held that a “little-used backwater” provision in the Clean Air Act could not justify an Environmental Protection Agency (EPA) rule that would “restructur[e] the Nation’s overall mix of electricity generation.” 597 U. S., at ___, ___ (slip op., at 16, 26).
Another telltale sign that an agency may have transgressed its statutory authority is when it regulates outside
