The Magazine

Justice Scalia vs. Justice Roberts

A dispute among conservatives over the ­administrative state.

Jun 17, 2013, Vol. 18, No. 38 • By TERRY EASTLAND
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Last month, in City of Arlington, Texas v. Federal Communications Commission, the Supreme Court’s five judicial conservatives divided on a question concerning the relationship between federal courts and federal regulators. Justice Scalia wrote the decision for a majority that included Justice Thomas, and Chief Justice Roberts wrote the only dissent in the case, which was joined by Justices Alito and Kennedy.

Scalia, Roberts

City of Arlington may or may not prove an important case in the Supreme Court reports​—​future cases will decide that. But it deserves attention now on account of what it yielded: disagreement among the Court’s conservatives on the role of the judiciary in cases arising from within the administrative state.

The administrative state is the name given to the collection of agencies below the cabinet level that Congress has created and to which it has delegated power to accomplish certain purposes. It dates back to the early 20th century and includes the FCC, which was established by the Communications Act of 1934.

Under that statute, as amended, local zoning authorities must approve proposed sites for towers and antennas “within a reasonable period of time after the request is duly filed.” In 2008, with wireless service providers encountering long delays on their siting applications, the Wireless Association (which represents such providers) asked the FCC to clarify the meaning of the term “reasonable period of time.” Agreeing with the providers that zoning authorities were, in effect, dragging their feet on applications, the FCC, acting on its broad statutory authority to implement the act’s provisions, issued a “declarative” ruling under which “a reasonable period of time” means three months for existing structures and five months for new towers.

With the ruling drawing opposition from state and local governments, the Texas cities of Arlington and San Antonio sought review in the federal courts. There the relevant precedent was the 1984 case Chevron U.S.A. v. Natural Resources Defense Council, which produced a test for a court to use in reviewing an agency’s interpretation of a statute it administers.

Under the test, as Scalia explained it in his opinion, if Congress has directly spoken to the precise question at issue​—​if its intent is clear​—​then “the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” But if the statute is silent or ambiguous with respect to that question, the court must defer to the agency’s interpretation of the law, so long as it is a reasonable one.

Whether under Chevron a court must defer to an agency interpretation of the kind the FCC made in City of Arlington​—​of an ambiguity concerning the scope of the agency’s statutory authority or “jurisdiction”​—​had been raised from time to time in the lower courts. Scalia answered this question affirmatively by rejecting the notion that there are two kinds of agency interpretation.

“That premise is false,” he wrote, “because the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.” Scalia emphasized that “a court need not pause to puzzle over whether the interpretive question presented is ‘jurisdictional.’ If ‘the agency’s answer is based on a permissible construction of the statute,’ that is the end of the matter.” The 6-3 majority in the case also included Justices Kagan, Breyer, Sotomayor, and Ginsburg.

In his dissent, Roberts recognized the “broad power” of agencies to “construe statutory provisions over which they have been given interpretive authority.” But he disagreed about what that “broad power” encompasses, arguing that it does not include the “power to decide when Congress has given” agencies the authority to give “definitive answers to questions left to them by Congress.”

Thus, he wrote, “a court should not defer to an agency on whether Congress has granted the agency interpretive authority over the statutory ambiguity at issue.” Instead, a court should determine whether Congress has given that authority to the agency in the first place, Roberts’s essential point being an agency is a creature of Congress and has no power to act unless Congress confers power upon it.

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