Scalia's other footnote: why is footnote four always such a threat to the Constitution?

May 21, 2013 | By JONATHAN WOOD

The internet is all a tizzy over a footnote in yesterday’s City of Arlington v. FCC decision. In the footnote, Justice Scalia pointlessly criticized a party’s name. Although footnotes are sometimes used for such playground antics, others have fundamentally reshaped our law. The most famous of the latter – Footnote 4 from United States v. Carolene Products Co. – gave us the rational basis standard of review under which economic regulation evades any serious constitutional scrutiny.

There was another interesting footnote in yesterday’s decision. As we explained, the decision evoked a sharp dissent from the Chief Justice that was joined by Justices Kennedy and Alito. The dissent argued that Courts should independently determine whether an agency’s interpretation of a statutory provision is entitled to deference because the huge and powerful administrative bureaucracy raises serious constitutional issues. Justice Scalia dismisses these concerns in his own Footnote 4, arguing that administrative agencies can’t (and one must presume don’t) violate the Constitution’s separation of powers principle because that would be unconstitutional.

But the Chief Justice’s argument cannot so easily be waived aside. As he points out, overly broad deference makes the constitutional concerns more acute:

When it applies, Chevron is a powerful weapon in an agency’s regulatory arsenal. Congressional delegations to agencies are often ambiguous — expressing “a mood rather than a message.” By design or default, Congress often fails to speak to “the precise question before an agency.”

This undeniable fact invites a question: should Congress be encouraged to legislate ambiguously, leaving to agencies the responsibility of making tough political and policy decisions? Overly broad deference rules invite this malfeasance and place the administrative agencies at the head of the government.

How will the government be held accountable if the political and policy decisions are made by anonymous bureaucrats? Deference is usually justified by appealing to the accountability of the President, who (in theory) oversees the administrative agencies. But the Chief Justice refutes this point:

As scholars have noted [N.B. these scholars are Justices Breyer and Kagan who joined the majority], “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” President Truman colorfully described his power over the administrative state by complaining, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.” President Kennedy once told a constituent, “I agree with you, but I don’t know if the government will.”

The dissent would not have brought an end to administrative agencies, or even Chevron deference. But it would have limited the application of deference to only those statutory provisions for which Congress intended the agency to receive deference. The Chief Justice explained that deference must be constrained to safeguard our liberties and our constitutional structure.

“The Framers did divide governmental power in the manner the Court describes [creating separate departments to exercise the legislative, executive, and judicial functions], for the purpose of safeguarding liberty. And yet … the citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, “in the public interest”—can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight—a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching.”