Tomorrow (January 16) the Supreme Court will hear oral argument in City of Arlington v. FCC. As we have observed previously, City of Arlington is likely to be one of the most important administrative law decisions of the last quarter century, impacting not only the FCC but most other federal agencies as well.
The question before the Court is whether courts, upon judicial review, should give Chevron deference to an agency’s determination of its own jurisdictional boundaries. When Chevron deference applies, courts give what the Court called "controlling weight" to an agency's statutory interpretations. While, at times, an agency's statutory interpretation may not prevail even if Chevron deference is held to apply, this is rare.
In my December 27 Washington Times opinion piece and in FSF Academic Board Member Jonathan Adler's November 26 Perspectives from FSF Scholars, we explained why the Supreme Court should hold that deference should not apply to agency determinations concerning the bounds of an agency's own jurisdiction. As Professor Adler concluded: "There are good reasons for [the Supreme Court] to make clear that agencies should only receive Chevron deference when they are exercising that authority Congress has delegated, and they should not receive deference when facing the question of whether the agency has authority at all."
And, as I explained in my Washington Times commentary:
"The very separation of powers principles upon which the Chevron deference doctrine primarily rests should mean that such deference doesn’t apply to agencies’ interpretations regarding the bounds of their own authority….If agencies themselves are allowed, by virtue of receiving extraordinary judicial deference, to presumptively resolve statutory ambiguities over the outer bounds of their own power, then it is far easier for legislators to avoid political accountability for decisions Congress makes regarding the expansive reach of the regulatory state. Finally, if agencies’ decisions about the scope of their own jurisdictions are given 'controlling weight' under the Chevron doctrine, the bureaucratic imperative naturally will be for officials to continue enlarging the limits of their regulatory authority."
Before Wednesday's argument, I want to call your attention to another point, one not addressed directly either in my piece or Professor Adler's. For a long time, I have suggested that independent agencies should not receive Chevron deference in the same way that Executive Branch agencies do. In other words, I have argued there ought to be a difference in application of the deference standard depending on whether the agency is an Executive Branch agency – like EPA, the agency whose ruling was at issue in Chevron itself – or an independent agency like the FCC, whose ruling is before the Court in City of Arlington.
The principal reason I have advocated this difference in judicial review deference standards has to do with constitutional separation of powers principles. In Chevron, the Court grounded the deference doctrine primarily (but not exclusively) in notions of political accountability inherent in separation of powers principles. In this regard, the Court explained that when congressional intent regarding delegated authority is not clear:
"[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices -- resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities."
Simply put, because independent agencies such as the FCC are, as a matter of our current understanding of the law and of historical practice, mostly free from executive branch political control, Chevron’s political accountability rationale should imply that independent agencies' statutory interpretations receive less judicial deference because such agencies, including the FCC, are less politically accountable.
I have published two articles in the Administrative Law Review articulating my position at some length and won't elaborate further here. The first, published in 2006, is titled, Defining Deference Down: Independent Agencies and Chevron Deference, and the second, published in 2010, Defining Deference Down, Again: Independent Agencies, Chevron Deference, and Fox. You may find these law review articles interesting if you are following the City of Arlington case.
A final intriguing note: Then Harvard Law School Dean Elena Kagan – now Justice Kagan – took essentially the same position that I have advocated regarding the judicial deference owed independent agencies in her widely-praised 2001 Presidential Administration law review article. And she based her view on the same rationale that I have suggested – that independent agencies are not as politically accountable as Executive Branch agencies because the President cannot control the independent agencies to the same degree. We'll see whether in City of Arlington Justice Kagan, or any other Justice, finds the differences between executive and independent agencies relevant for Chevron purposes.