On Monday, the Supreme Court announced its decision in the case of Arlington v. FCC. The issue, according to Justice Scalia’s opinion for a majority that included Justices Thomas, Ginsburg, Sotomayor and Kagan, was “whether an agency’s interpretation of a statutory ambiguity about the scope of its regulatory authority (that is, its jurisdiction) is entitled to deference under Chevron.”
This may sound like inside-baseball talk — of interest only to federal judges and administrative law geeks. But don’t be fooled. Sometimes the liberties of Americans are at stake in the most obscure of cases.
To put the matter simply — no doubt too simply for the aforementioned administrative law geeks — the issue was whether federal courts or federal bureaucrats should decide how much power federal bureaucrats have when Congress has been ambiguous on the question.
Everyone agrees, except perhaps the current administration, that federal agencies have only those powers delegated to them by Congress. In the 1984 Chevron case, the Supreme Court held that where Congress’ intent with respect to delegated powers is clear, the courts must enforce that intent, but where Congress was “silent or ambiguous” with respect to the scope of those powers, the courts must defer to the bureaucrats’ “permissible construction[s]” of the statute. And so in Arlington the majority sided with the Federal Communications Commission.
The deference called for in Chevron is inspired by the court’s respect for the separation of powers and its desire to avoid being labeled as activist. But as critics of Chevron have argued, and Chief Justice Roberts’ dissent in Arlington makes clear, too much deference compromises the separation of powers and fails to fulfill the most fundamental responsibility of the judiciary — “to say what the law is” (in the words of Chief Justice John Marshall).
Justice Scalia insists that, for Chevron deference purposes, there is no difference between an agency’s interpretation of its authority (jurisdiction) to decide a question and its actual deciding of that question. If he is correct, and the minority’s view prevailed, plain vanilla challenges to administrative actions could be reformulated as jurisdictional challenges and thus avoid Chevron deference. “[M]ake no mistake,” he says, “the ultimate target here is Chevron itself.”
Maybe Scalia is right about the ulterior motives of the petitioners in Arlington — ulterior motives that, in light of Chief Justice Roberts’ descriptions of the modern administrative state, may not be so bad. After quoting from several court opinions, presidential statements, and scholarly commentaries (including some by Justices Kagan and Breyer) on the massive powers of the modern federal bureaucracy and the inability of presidents to control the exercise of those powers, Roberts suggests that “the citizen confronting thousands of pages of regulations — promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’ — can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether presidential oversight — a critical part of the Constitutional plan — is always an effective safeguard against agency overreaching.”
James Madison wrote in The Federalist that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” Chief Justice Roberts quotes that language, and then points out that “the accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.” Yet Justice Scalia describes Roberts’ argument as “hollow.”
Roberts acknowledges that Chevron deference “guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive.” But, says Roberts, the judiciary has an obligation “not only to confine itself to its proper role, but to ensure that the other branches do so as well.”
The “bipartisan” majority in Arlington missed an opportunity to do just that. Regrettably, there is little doubt that even more power will be arrogated to the administrative state before the Supreme Court has another opportunity to begin restoring the separation of powers.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.