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.
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.
On September 11, Professor Joseph Postell, a member of the Free State Foundation's Board of Academic Advisors, published a Perspectives from FSF Scholars paper titled "Progressivism and the True Beginnings of the Administrative State." Professor Postell is the author of an excellent work of history and political theory titled Bureaucracy in America: The Administrative State's Challenge to Constitutional Government, published in 2017 by University of Missouri Press. 
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