From Chevron to Arlington: The Court and the Administrative State at Sea

As previously threatened, I have a few remarks about this week’s Supreme Court argument in City of Arlington v. FCC, asking whether administrative agencies are owed judicial deference—Chevron deference—when they construe the scope of their own jurisdiction. Alas, the argument (transcript here) illuminates little beyond the Supreme Court’s ambivalence and, frankly, confusion about the administrative state.

The basic framework is the drive-by “doctrine” of Chevron U.S.A v. NRDC (1984), which goes like this: When Congress has spoken “clearly” on some legal question, the agency must obey the legislature’s will, and the courts will examine that question de novo. When Congress has mumbled or remained silent, the agency may pick any permissible interpretation, and the courts will cut the agency a great deal of slack. That’s called “Chevron deference.”

Prior to this two-step there’s the question of whether the doctrine applies in the first place. For example, agencies won’t or at least shouldn’t get Chevron deference on constitutional questions. (“Can we regulate an isolated wetland under the Commerce Clause?”) They don’t get Chevron deference when they interpret federal court decisions, or when they interpret general-purpose statutes (such as the Administrative Procedure Act) or statutes principally committed to other agencies. Deference applies only to the statute(s) that the agency administers—that is, its “organic” statute(s) . But how far does the agency’s authority under that statute reach? In other words, what’s its jurisdiction? Does the agency get deference on that?

At some level (Justice Kagan acknowledged in oral argument), everyone agrees that the answer is “no.” The prerogative to make rules with the force of law (unless exercised by Congress) is a delegated power, and you can’t let the purported delegee decide whether it has that power. Trouble is, that doesn’t help very much. The organic statute may say, “Go forth and make rules [etc] on anything having to do with telecommunications.”  No deference applies; but then, it doesn’t matter. Apart from the general grant of authority, though, the statute may contain numerous provisions that determine, more or less clearly, the agency’s scope of authority. (For example, a rule may authorize the agency to preempt state “health standards” but not “safety standards.” Does the agency get deference when it interprets those rules? Are they in- or outside Chevron’s domain? That, grossly oversimplified, is the question in City of Arlington, and the Court got hung up on it.

Say (as Justice Scalia seems inclined) that this is Chevron stuff: unless Congress has been unmistakably clear on the lower-level rules, the agency will get deference on each incremental power grab (or for that matter any opportunistic abdication of responsibility). Say that agencies can never get deference on jurisdictional matters (because that presumes the very authority that’s in question), and courts might have to review an endless stream of agency decisions de novo: it’s impossible to tell “jurisdictional” from “substantive” rules.

To the uninitiated, this may seem perplexing. Jurisdiction, one might think, concerns a regulatory agency’s question, “Can we screw ‘em?” The consistent agency answer will be “yes.” But Congress probably didn’t mean to leave the target selection entirely to the agency. In any event it’s a legal question, and therefore one for the courts. Substance goes to, “Screw ‘em how?” That question, Congress did probably mean to leave to the agency: it requires fact-bound knowledge that courts don’t have.  Two very fine briefs (here and here) in City of Arlington slice the problem that way (albeit not in haec verba). Petitioner’s counsel (Tom Goldstein) defended a much more limited position but ran into skepticism. It’s easy to see why. Suppose an agency is granted jurisdiction to do this or that about vessels, wetlands, yard waste, xylophones,  or zinfandel: is every determination as to what does or doesn’t fall within these categories “jurisdictional”? Does it matter by what process the agency answers the question? (Under current law it does, but let that slide.)

Here’s the real difficulty, cast in sharp relief by City of Arlington: once you’ve allowed administrative agencies to do the work of Congress and to make rules with binding force, you are playing in a second-best world. What we call administrative law is the perennial search for sensible rules for that world. There are no perfect rules, only better and worse sets of rules. But even that inquiry presupposes some antecedent theory and, ideally, agreement on what we do and don’t want the administrative state to do.

Read the argument transcript: the justices know that that’s the question, but they’re fumbling. As are the rest of us.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book isy The Upside-Down Constitution (Harvard University Press, 2012).

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