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.

Roberts included in his opinion a veritable essay on the administrative state. He discussed its growth over the past decades (more than 50 new agencies in the past 15 years) and the powers the agencies wield, touching “almost every aspect of daily life,” with “reams of regulations that would leave [the Framers] rubbing their eyes.” He noted their independence and how difficult it is to ensure their accountability, quoting “scholars” named “Kagan” (who said, in a law review article that first brought her to prominence in the 1990s, that no president “could, and presumably none would wish to, supervise so broad a swath of regulatory activity”) and “S. Breyer” (who said in a recent book that “the president may not have the time or willingness to review [agency] decisions”).

Roberts clearly was concerned about what he called “the danger posed by the growing power of the administrative state.” That, he believed, was the context in which City of Arlington should be seen, with the question in the case this: “whether the authority of administrative agencies should be augmented even further, to include not only broad power to give definite answers to questions left to them by Congress, but also the same power to decide when Congress has given them that power.” Believing that kind of augmentation of power unlawful, Roberts voted against it, asserting a role for the courts. Not incidentally, the chief justice observed​—​and this was the main point of his remarks on the administrative state​—​that its rise “has not changed” the “duty of the judicial department to say what the law is,” as another chief justice, John Marshall, famously wrote in the 1803 case Marbury v. Madison.

Scalia, a stalwart defender of Chevron, saw a different danger. “Make no mistake​—​the ultimate target here is Chevron itself.” Savvy challengers, he said, speaking to a concern of several justices during the oral argument, would play “the ‘jurisdictional’ card” in every case. And the effect would be “to transfer any number of interpretive decisions .  .  . from the agencies that administer the statutes to federal courts.” The courts would apply some sort of “totality of circumstances” test that would “render the binding effect of agency rules unpredictable” and replace excessive agency power with chaos.

Roberts acknowledged that Chevron guards against judicial usurpations of policy-making that properly belongs, under the separation of powers, to the executive branch. But Roberts was minded to observe another concern, also rooted in the separation of powers: that the judiciary not only remain within its proper role but “ensure that the other branches do so as well.” And “that means ensuring that the Legislative Branch has in fact delegated lawmaking power to an agency within the Executive Branch, before the Judiciary defers to the Executive on what the law is.” Especially since the administrative agencies “draw upon a potent brew of executive, legislative, and judicial power,” and especially since “the dramatic shift in power over the last 50 years from Congress to the Executive” has been “effected through the administrative agencies.”

The appeal of Roberts’s opinion lies in its attempt to push back against the administrative state. It does so, however, in a case that does not advance the opinion’s main storyline, since the FCC in its interpretation of the ambiguous term in question did not exactly try to expand its power. City of Arlington, after all, is about a local zoning approval process.

Roberts may have been writing for some future case. And whether his position someday prevails would seem to turn on whether Scalia can be proved wrong in his view that “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage.” As one Supreme Court litigator told me, “There would have to be a new case where the distinction is so crystal clear as to force Scalia to look at it again.”

Terry Eastland is publisher of The Weekly Standard.

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