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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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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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