Is Agency Ancillary Power an Unsound Doctrine?

The possibility of seeing increased judicial scrutiny of agency ancillary power claims was the subject of my Perspectives essay, "A Recent Appeals Court Ruling on Ancillary Power Limits Could Curb Regulatory Overreach." That essay focused on the ruling of the U.S. Court of Appeals for the D.C. Circuit in Echostar v. FCC (2013). But also pointed ahead to Verizon v. FCC, the pending legal challenge to the FCC's network neutrality regulations.

My Perspectives essay addressed certain limits to agency ancillary power. But a case can be made that the entire ancillary power doctrine rests on false foundations. In August, the Free State Foundation filed a joint amicus curiae brief in Verizon v. FCC, offering a brief but important critique of the ancillary power doctrine.

The relevant section quotes Senior Judge Raymond Randolph's remark during oral arguments in Comcast v. FCC (2010) that the ancillary power doctrine is "out of step with contemporary Supreme Court jurisprudence" that limits an agency's regulatory authority to explicit Congressional delegations. 

The amicus brief continues:

Allowing an agency that derives its regulatory authority solely from congressional delegation to claim ancillary authority beyond that grant of power violates basic administrative-law principles.  Properly understood, "[t]he Commission 'has no constitutional or common law existence or authority, but only those authorities conferred upon it by Congress.'" Am. Library Ass'n v. FCC, 406 F.3d 689, 698 (D.C. Cir. 2005) (quoting Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001)).  But, by invoking its ancillary authority, the FCC grasps beyond the regulatory powers that Congress actually gave it.  Cf. ACLU v. FCC, 823 F.2d 1554, 1567 n.32 (D.C. Cir. 1987) ("[I]t seems highly unlikely that a responsible Congress would implicitly delegate to an agency the power to define the scope of its own power."). 

The Supreme Court precedents supporting the FCC’s ancillary-authority claims predate the seminal decision in Chevron, see Comcast, 600 F.3d at 646 (collecting authorities).  The FCC's claims more closely resemble the discarded notion of "implied rights of action" than Chevron and its progeny.  Tr. of Oral Argument 20, Comcast v. FCC, No. 08-1291, Jan. 8, 2010 (Randolph, J.).  Underscoring how anomalous ancillary agency authority really is, the FCC is one of the few agencies that still invokes the concept as grounds for greater regulatory reach.  Cf. CFTC v. Schor, 478 U.S. 833, 852 (1986) (noting that the "wholesale importation of ancillary jurisdiction into the agency context" has the potential to "create great[] constitutional difficulties").

The constitutional and administrative law principles underlying the frontal challenge to the doctrine deserves serious attention. That said, it might take a U.S. Supreme Court case to ultimately address the viability of the ancillary power doctrine in light of recent high court jurisprudence.