City of Arlington v. FCC: the death of Chevron step zero?

Author:Feder, Samuel L.
 
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TABLE OF CONTENTS I. INTRODUCTION II. THE COURT'S DECISION IN CITY OF ARLINGTON V. FCC A. The Circuit Split Leading to Arlington B. The Background Surrounding the Arlington Case C. The Majority Opinion III. THE REAL QUESTION PRESENTED IN ARLINGTON: THE DISSENT AND THE CONCURRENCE IV. THE IMPLICATIONS OF ARLINGTON A. Chevron Step Zero? B. The Open Internet Case C. The Nondelegation Doctrine V. CONCLUSION I. INTRODUCTION

While much attention has been paid to the Supreme Court's marquee opinions this last Term on gay rights, (1) voting rights, (2) and affirmative action, (3) a potentially significant administrative law decision has largely escaped notice. In City of Arlington v. Federal Communications Commission, the Supreme Court held that an agency should receive Chevron deference for its interpretation of a statutory ambiguity concerning its "jurisdiction"--that is, the scope of its regulatory authority. (4) Some Courts of Appeals had previously held that an agency's decisions regarding the scope of its jurisdiction should not receive Chevron deference, distinguishing .jurisdictional questions from other questions of statutory interpretation. (5) In an opinion authored by Justice Scalia, the Supreme Court rejected that view, holding that "judges should not waste their time ... decid[ing] whether an agency's interpretation of a statutory provision is 'jurisdictional' or 'nonjurisdietional.' Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency's assertion of authority, or not." (6) And with respect to that question, Chevron applies and the agency receives deference]

Arlington is potentially significant, however, less for its holding than for its dialogue between the majority opinion and the concurrence and dissenting opinions. Interestingly, neither the concurrence by Justice Breyer nor the dissent by Chief Justice Roberts takes issue with the majority's resolution of the question presented. (8) None of the Justices believed that a distinction should be made between jurisdictional and nonjurisdictional questions. Nonetheless, the ease produced heated disagreement among the Justices, tracking a long-running battle over a different question: whether, prior to invoking Chevron deference, a court must first make a separate judicial determination that Congress intended to delegate to the agency the power to interpret the particular statutory provision at issue. (9)

According to Justice Scalia and the majority, when Congress has conferred general rulemaking authority to an agency to administer a statute, and the agency has promulgated its interpretation of the statute through notice-and-comment rulemaking or adjudication, then Chevron applies and the agency should receive deference for its resolution of any ambiguity in statutory language, (10) However, according to Justice Breyer and the dissenters led by the Chief Justice, before deferring under Chevron, a court must first ask whether--notwithstanding Congress' general conferral of rulemaking authority--Congress intended to delegate to the agency the authority to interpret the particular statutory provision. (11) If so, then Chevron applies and the agency's interpretation receives deference. (12) If not, then a court must use the tools of statutory interpretation to divine Congress's intent as best it can, informed by the agency's view only to the extent that the court finds it to be persuasive. (13)

The difference in these two approaches can be traced back to Chevron itself and the initial administrative law cases following it. Arlington is potentially significant because it could be read to resolve that long-running dispute in favor of Justice Scalia's expansive view of agency authority. Such a resolution could have significant consequences for administrative law. in many cases the difference in approach may not matter to the outcome (here, for example, Justice Breyer found that Congress had intended to delegate to the agency interpretive authority over the provision at issue, and thus, he too applied Chevron); (14) however, in some cases the difference in approach will matter. For example, when Arlington is read in conjunction with cases such as Brown & Williamson, (15) it is unclear whether a court should take a harder look when an agency's interpretation significantly expands the agency's authority to regulate matters of great economic and social importance than it should when an agency's interpretation concerns a minor, interstitial issue.

Moreover, the Court's decision could place pressure on other administrative law doctrines--such as the long-dormant nondelegation doctrine--to do the work of constraining administrative agencies. Significantly, the first third of the Chief Justice's dissent is devoted to describing the "danger posed by the growing power of the administrative state," (16) fostered by a toothless nondelegation doctrine that essentially allows an agency to legislate in Congress's place.

Part II of this Article describes in greater detail the issue presented to the Court in Arlington and the majority's decision in the case. Circuit courts had divided on the question of whether an agency should be afforded Chevron deference when deciding the scope of its own jurisdiction. The Court held in Arlington that the scope of an agency's jurisdiction was no different than any other statutory question that an agency must decide: an agency can only ever act within the limits set forth by Congress, and Chevron commands that the agency receive deference in resolving any ambiguities concerning those limits.

Part III considers the dissent and concurrence, and explains that the significant issue raised by the case is not the question presented to the Court, but the distinct question of whether a court must assess, with respect to the statutory provision at issue in a particular case, whether Congress intended to delegate to the agency the authority to resolve any ambiguity in that provision. The majority concluded that the agency should receive deference, so long as Congress generally delegated to the agency the power to administer the statute through rulemaking and the agency used those procedures in reaching its interpretation of the statute. The concurrence and dissent argued that a court must ask whether Congress intended to delegate interpretive authority to the agency with respect to the particular question at issue, and the answer might vary, for example, depending upon the nature or importance of the question to the statutory scheme.

Part IV considers the implications of the case in two respects. First, the decision calls into doubt other cases that have held that the nature and importance of an interpretive question should have a bearing on the degree of deference that an agency should receive in resolving it. The D.C. Circuit's review of the Open Internet (or "net neutrality") rules issued by the Federal Communications Commission ("FCC") presents a good example of the kind of case that could be significantly affected by the decision in Arlington. (17) Second, one of the most striking features of the Chief Justice's dissent was its long discussion of the dangers of allowing agencies untrammeled deference. One question is whether the broad interpretive authority enjoyed by agencies under Arlington will result in an effort to rejuvenate the nondelegation doctrine as a tool that judges can use to constrain agency action.

  1. THE COURT'S DECISION IN CITY OF ARLINGTON V. FCC

    As every student of administrative law knows, the Chevron case addressed a basic question in administrative law: whether courts should interpret a statute de novo or should, instead, defer to an agency's interpretation of the statute that the agency administers. (18) Of course, Congress sometimes speaks unequivocally, (19) and in those cases effect must be given to Congress's clear intent. But when a statute has more than one possible construction, Chevron directs a court to defer to the agency's choice among the various reasonable interpretations. That is, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." (20)

    The Chevron doctrine rests on a dual rationale. First, it reflects the assumption that the agency tasked with administering a statute has greater expertise than a court, and thus is better able to decide among competing policy choices. (21) That is most obviously so when the question of statutory interpretation involves a technical or complex regulatory scheme, as such questions of interpretation often do. (22) But even when not, an agency's familiarity with the regulatory backdrop allows the agency to make a more informed judgment than a court about how best to advance the purpose of the statute and Congress' intent. Second, Chevron reflects the assumption that an agency is more democratically accountable than the courts and is therefore better situated to make judgments about the wisdom of policy alternatives. As Chevron explained

    [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. (23) A. The Circuit Split Leading to Arlington

    In the years leading up to Arlington, Courts of Appeals had divided on whether courts should apply Chevron when confronted with a statute confining the scope of an agency's jurisdiction. The basic arguments on each side of the debate were first articulated by Justice Scalia and Justice Brennan in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, a case involving...

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