May 20, 2013

Deference and the Hound of the Baskervilles

By Damien M. Schiff Senior Attorney

Today the Supreme Court ruled in City of Arlington v. FCC that courts should defer to agency interpretations of statutes they administer, regardless of whether the provision at issue could be characterized as “jurisdictional.”  The opinion, authored by deference-maven Justice Scalia, rejected the argument that agency interpretations of the scope of authority, as opposed to the exercise of authority, are ineligible for judicial deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council.

The case dealt with the FCC’s interpretation of a provision of the Federal Communications Act concerning permitting of cell phone towers, but the decision will apply much more broadly.  For example, in providing examples as to how difficult it would be for a court to distinguish between jurisdictional and nonjurisdictional provisions, Justice Scalia cited the Clean Water Act’s definition of “waters of the United States.”  The implication is, I believe, that EPA and Corps interpretations of what constitutes a water of the United States are eligible for deference, even if one might label the provisional “jurisdictional.”

An interesting facet of today’s decision is its breadth.  Arguably, the only issue the Court needed to decide to dispose of the case was:  should courts defer to an agency’s view that it has been delegated authority from Congress to interpret a statute (or a provision thereunder)?  The petitioners in City of Arlington argued that the FCC did not have authority to interpret the cell phone tower provision, whereas FCC argued that it did have such authority.  But resolving that question doesn’t require the Court to address whether certain provisions of a statute that it concededly has authority to administer are not eligible for deference because they are “jurisdictional.”  And yet, Justice Scalia’s opinion addresses both issues:  yes, FCC has authority to interpret the provision at issue; and, FCC’s interpretation is eligible for deference, because the jurisdictional/nonjurisdictional distinction is gossamer.

Now, one might argue that Justice Scalia’s decision doesn’t really address the narrower issue of whether deference applies to an agency’s determination that it has authority to interpret a statute or one of its provisions.  His opinion seems simply to conclude that this issue here is not even close—of course the FCC has such authority.  In other words, where a statute provides a “general conferral of rulemaking authority,” a court must dispense with any Chevron eligibility analysis (so-called Chevron step zero) and proceed directly to an application of the Chevron test.  Hence, I would argue that it remains an open question whether an interpretation is eligible for deference, if the agency lacks general rulemaking authority.

A final point on my blog post title.  Justice Scalia’s opinion cites The Hound of the Baskervilles to make the charge that the anti-deference forces (including the dissenters) are really after bigger prey than the “jurisdictional” interpretation; that, in fact, they want to dispense with Chevron itself.  Of course, the dissenters disavow any desire, while noting that the growth and reach of the modern administrative state if anything would argue for less rather than more deference.  But Justice Scalia seems content to protect individual liberty from an administrative leviathan simply by allowing the agencies no more authority than what Congress has already granted.

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