Supreme Court

Scalia vs. Roberts on Federal Regulatory Power

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At Bloomberg View, Harvard law professor and former Obama administration regulatory czar Cass Sunstein highlights last week's Supreme Court ruling in City of Arlington, Texas v. Federal Communications Commission, which he dubs "an important victory for Barack Obama's administration that will long define the relationship between federal agencies and federal courts."

The central issue in the case was whether the FCC and other administrative agencies should be granted deference by the courts when it comes to interpreting the scope of their own regulatory authority under an ambiguously-worded statute. Writing for a majority that also included Justices Clarence Thomas, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, Justice Antonin Scalia held that such deference should be granted. "No matter how it is framed," Scalia wrote, "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." As to the case at hand, "If 'the agency's answer is based on a permissible construction of the statute,' that is the end of the matter."

Chief Justice John Roberts, writing in a dissent joined by Justices Anthony Kennedy and Samuel Alito, took a different view. After first observing that "the Framers could hardly have envisioned today's 'vast and varied federal bureaucracy' and the authority administrative agencies now hold over our economic, social, and political activities," Roberts firmly rejected Scalia's deference to that growing bureaucracy. "We do not defer to an agency's interpretation of an ambiguous provision unless Congress wants us to," the chief justice wrote, "and whether Congress wants us to is a question that courts, not agencies, must decide."

It's not everyday you find a prominent liberal such as Sunstein praising a decision by Scalia, but this is such a day. As Sunstein sees it, Scalia's opinion in Arlington v. FCC "is an important win for all future presidents, whether Republican or Democratic," since it "strengthens the hand" of federal regulators as they carry out future presidential agendas.

It certainly does strengthen the regulatory hand. But does it grant too much power in the process, essentially allowing federal agencies to define the scope of their own authority without proper accountability? Roberts' dissent makes a strong case that it does. Unfortunately, he was able to secure just two other votes for that position.

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  1. but yet Obamacare was find and dandy. Screw you, Roberts.

    1. But, you see, Obamacare is Congress, and Congress must be deferred to under all circumstances because the represent the will of the people. /sarc

      They are all wrong. No branch of government owes deference to any other branch. They are not there to collude. They are there to keep each other in check.

      1. They are not there to collude. They are there to keep each other in check.

        That’s so 1790. The job of the judicial branch is to defend the actions of the government from peasants with enough coin to hire a lawyer.

        1. Their real job is propaganda, to maintain the fiction that the government is limited and follows the constitution while doing nothing to prevent the growth of government power.

      2. If I ever get to reform the Constitution to make it work better to limit government growth, one of the mechanisms I’ll add will be something–not sure what–that incentivizes the branches to fight more amongst themselves. Part of that is restoring state power to the Senate, but that’s not enough.

        1. I’ve come to the conclusion that the whole separation of powers is the problem because it limits the accountability of government to the public. And it defuses reform efforts before they accomplish anything.

        2. Have a house whose only power is to undo the actions of the others, so people would run for office based upon what they promise to repeal.

          1. Well, of course, I’ve advocated something like that for years, though I’ve more recently concluded that the Censor should live outside of government, though with contitutional authority over it.

            1. This is what the courts were supposed to be for, but that didn’t work. I don’t think anything would work. It goes against human nature. Human nature is to accumulate power, not to give it up.

              1. Which means that there should be an incentive for someone to limit government power. I think each of the Censors should get a bounty for each politician they remove from office.

                1. I think each of the Censors should get a bounty for each politician they remove from office.

                  How long before they become partisan tools?

                  1. Which is the real fly in the ointment. How do you keep them isolated from partisan crap? Or, if that’s impossible, how do you make it work, despite partisan crap? I don’t have an easy solution to that problem.

                    1. The only solution is to change human nature. Which means that there is no solution.

                    2. Well, I’m not quite that pessimistic. The Constitution tried to build in safeguards against human failings and was successful to some extent for a while. Maybe more safeguards would hold back the tide for longer.

                      Ultimately, we have to want liberty more than government on a cultural level, or nothing we do will work.

                    3. we have to want liberty more than government on a cultural level

                      Public schools have fixed that. Forever.

                    4. Not forever, but they’ve certainly played a role. My kids don’t hear anything remotely libertarian in school, that’s for sure.

                    5. Because the Censor is actually just a drone programed to kill politicians for failing impromptu quizzes on said founding document. I think we had this conversation like 4 years ago.

              2. No, he courts were supposed only to apply the laws, not to undo them. It’s only because subsidiary laws came to be so out of bounds of the superior, constitutional law that it appears the courts are to undo laws.

  2. Scalia’s opinion in Arlington v. FCC “is an important win for all future presidents, whether Republican or Democratic,” since it “strengthens the hand” of federal regulators as they carry out future presidential agendas.

    Because that is all that really matters to these fucks.

  3. For the life of me, I cannot figure out Scalia’s or Roberts’ operating theory of governmental authority. You would think that their opinions are determined by whether or not someone pissed in their Wheaties that morning.

    1. Scalia’s opinion is that the will of Congress is limited to what is written down in the legislation. If Congress doesn’t like how an agency is implementing its will, it needs to write better laws.

      Roberts’ opinion is that the judicial system can determine that the Executive Branch is clearly contravening the will of Congress without Congress having to pass an explicit law clarifying its position.

      Roberts’ opinion is based on efficiency (it would be time consuming for Congress to have to pass correctives to all its laws in the face of a malicious Executive finding new loopholes) with a dollop of increasing judicial power.

      Scalia’s opinion is based on textual limitations together with judicial restraint.

      Seems pretty consistent for them both with their other opinions.

      1. Under that interpretation, Scalia is the more conservative. Unfortunately, I don’t see anyone giving consideration to the overall limits put on the legislature and the executive in regards to the Constitution, they’re just arguing over who gets to be the final authority.

        1. Well, yes, in this case they weren’t. There are other court cases where Constitutional limits on governmental powers are at issue, but it simply wasn’t the matter at stake here.

          The issue at hand here was:
          “If Congress passes a law and the Executive interprets in a way that might be inconsistent with what Congress meant but might be justifiable under a particular reading of the statute, when and how does the Judicial Branch step in to tell the Executive Branch that they aren’t following the law?”

          There are lots of cases there. Many laws are vague; when is it too vague? When does the court making such rulings and interpretations switch from “calling balls and strike” to “legislating from the bench?”

          It’s an important question for jockeying for power amongst the branches, particularly when Congress abdicates its responsibility. It’s just not necessarily a direct question of liberty, particularly if you think that liberty is enhanced by balance of powers.

      2. If Congress doesn’t like how an agency is implementing its will, it needs to write better laws.

        Im actually fine with Scalia on this one.

        Congress needs to man up and stop letting agencies run all willy-nilly. They are in charge of legislation, they should stop giving that up to the executive branch.

        1. Exactly. One of the biggest problems with PPACA is how it delegates a shit ton of authority to HHS to write all these healthcare regulations.

        2. If Scalia were truly conservative, he would notice that the Constitution does not empower Congress to delegate its legislative authority. Congress makes laws, the courts interpret them–if the executive wants to use its own interpretation, they should go through the courts.

          1. That would be the Nondelegation Doctrine. I agree that it should be an issue at hand in more cases– but it wasn’t what was discussed or briefed in this case.

        3. Im actually fine with Scalia on this one.

          Congress needs to man up and stop letting agencies run all willy-nilly. They are in charge of legislation, they should stop giving that up to the executive branch.

          Bingo.

  4. I do like that the default position of many justices is deference to the state. The legislature is no longer the people and the bureaucracy their indifference has created certainly isn’t the people. Fuck you, Supreme Court.

    1. Well, do remember that the alternative here is justices legislating or interpreting the will of Congress. I’m pretty sure that one could say “Fuck you, Supreme Court” on this general principle no matter what.

      This is not really a case of preserving liberty, it’s a case of who has the upper hand– the Executive Branch (claiming to execute Congress’s will), or the Judicial Branch-in-the-name-of-Congress, in those cases where Congress (is forced to) pass a vague law.

  5. So why exactly do certain libertarians think that SCOTUS is a liberty friendly institution?

    1. Who said that it was?

      1. I mean, between the White House, the Congress, and SCOTUS, SCOTUS is the most libertarian.

        But that’s like saying you’d rather have chlamydia then syphilis or AIDS.

        1. Bullshit. They’re more worthless than the other two branches, who occasionally can be moved by popular pressure into doing the right thing.

          SCOTUS is the ultimate FYTW institution and as noted up thread there’s no discernible pattern to the votes of the supposed ‘right wing’ justices; other than they’re almost always on the dissenting side of government growth.

          1. They’re terrible, but at least they occasionally block government action. Like striking down the CDA. Not really common with the other branches.

            Not that it matters much, since they’re steering the ship the wrong way, too.

          2. Actually, I find that there is a discernible pattern. Scalia and Thomas are on the side of textualism and formalism, Roberts and Alito are pragmatists, as mostly is Kennedy.

            Saying that Congress has to write its laws better and has to formally rebuke the Executive by correcting the law, even if it’s obvious that the Executive isn’t doing what the Legislative meant, is pure formalism, and what Scalia and Thomas have done here.

            Saying that the courts can step in to say that the Executive is interpreting it wrongly in ambiguous cases is very pragmatic (it would be nearly impossible for Congress to explicitly disavow all dubious interpretations of a determined Executive), hence Roberts, Alito, and Kennedy.

            There is *no* anti-government growth side here. It’s merely a case of who has the ultimate power when Congress abdicates theirs– the Executive or the Judiciary.

            1. The anti-government growth side would be to say that Congress has no constitutional authority to delegate their legislative power to the executive branch and that therefor any regulatory rulings based on vague language is unconstitutional.

              That would satisfy both the textualists and the pragmatists.

              Christ, what’s to stop SCOTUS from saying that an Enabling Act (To relieve the distress of the people and the country) is constitutional?

              1. I’m not 100% convinced that a Congress with plenary power is anti-government growth either. Do I care whether it’s the Executive, Legislature, or Judiciary making the rules, if the rules are bad?

                Balance of powers is generally useful, and there’s fighting around the edges expected.

              2. So, VG, taking this down to the state level where I can find a simple example, suppose you’re in a state that has “shall-issue” pistol carry permit legislation. It says the local authority shall issue someone a permit unless they have reason not to. Would you rather that administrative agency have no such authority to decide, so that instead you’d have to have an act of the legislature to grant any given individual a carry license?

                Sure, you could say they shouldn’t require a license at all, but you don’t get to decide such things. The likelihood would rather be that there would be a general prohibition for which exceptions for individuals could be individually legislated. If it didn’t apply to pistols, it might apply to something else.

                1. Right, giving a permit under a shall issue law is exactly the same as putting the secretary shall determing in a vague 2,000 page law hundreds of times.

            2. There is *no* anti-government growth side here. It’s merely a case of who has the ultimate power when Congress abdicates theirs– the Executive or the Judiciary.

              I think there is an anti-gov’t-growth side, it’s just that it’s not a consistent one, but it’s there if you play the odds. There is a tendency of admin. agencies to grow gov’t by putting more private sector decisions under their agency’s jurisdiction. Occasionally things are reversed, where an agency would abjure power over the private sector and some private party sues to have them assert it, but even then they usually lose in court.

              If this case were about deference in statutory construction on points in gen’l, then you might well be right, but when it’s specifically about deciding jurisdiction, I think the smaller gov’t side just lost.

              1. There’s also a tendency of legislatures and courts to grow government as well.

        2. SCOTUS has one or two that occasionally have a libertarian flavor. That’s 20%. Congress has a few as well but they are completely outnumbered. SCOTUS wins!

    2. It’s not, though it’s often better than the other branches.

    3. There was a “liberty friendly” position in this case? It was about the source of oversight, not the scope of authority.

      Also, that’s a straw man worthy of Tony. Now pull a shriek and do some tu quoque.

    4. SCOTUS can, from time to time, render a liberty friendly decision, but I wouldn’t argue that it’s a liberty friendly institution.

  6. “and whether Congress wants us to is a question that courts, not agencies, must decide.”

    Surely there’s a strong case that “whether Congress wants us to” is a question that Congress must decide.

    I do grant that there’s a good case for the Courts judging disputes between the other two branches, but following Roberts’ logic too much easily leads to a situation of it being SCOTUS usurping Congress’s power instead of the agencies.

  7. There’s no doubt that Arlington was an important victory – just as was Plessy v. Ferguson. The thing is, executive-branch agencies can always have their ambiguous provisions disambiguated by Congress – would Sunstein consider this an improper intrusion by Congress into the executive prerogative?

    Those who believe in a unitary executive need not think that the president can defy the will of Congress, or torture people, or make war on his own. Apparently he can if he asserts an ambiguously worded provision of law allows him to. And if the President asserts that a provision is ambiguously worded, if – for example – it depends on what the meaning of ‘is’ is, wouldn’t deference by the Court demand that they accept his assertion of ambiguity?

    1. It’s mostly a question of where the Court draws the line. Exactly how ambiguous does a wording have to be, or how tortured the Executive’s reasoning have to be, before the Court tells the Executive that they’re interpreting it wrongly, without Congress having to intervene? Exactly how much can the Court infer about what Congress must have meant when they passed that law, versus sticking to what the law actually says, regardless of what was meant?

      1. “Congress shall make no law…” “…shall not be infringed.”

        SO FUCKING AMBIGUOUS! WHAT COULD THEY HAVE POSSIBLY MEANT? AAAUUUGGGHHH!

        1. This is about laws passed by Congress. Are you seriously arguing that the tax code, or Obamacare, or the ag bill, aren’t ambiguous and poorly worded in places?

          1. No. That’s not what I’m arguing. However if the judicial branch did its job and struck down bills that were beyond the scope of the powers granted to Congress by the Constitution, we wouldn’t have so much ambiguous legislation, would we?

            1. Oh, that’s certainly true, and if SCOTUS struck down on the basis of the Nondelegation Doctrine we’d also have less. I agree with you on those points.

              But you won’t get the Court to rule on an issue that wasn’t argued before them.

          2. Are you seriously arguing that the tax code, or Obamacare, or the ag bill, aren’t ambiguous and poorly worded in places?

            I wold say purposefully so.

  8. “No matter how it is framed,” Scalia wrote, “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.”

    Isn’t there some other thing, some sort of set of rules laying out the limits on government authority, which is supposed to be considered?

    Or did I just imagine that?

    1. “General welfare… regulate commerce… necessary and proper”

      Nope. I see no limits. None at all.

  9. As Sunstein sees it, Scalia’s opinion in Arlington v. FCC “is an important win for all future presidents, whether Republican or Democratic,” since it “strengthens the hand” of federal regulators as they carry out future presidential agendas.

    Yippee!

    I could jump up a dance a jig.

    1. it’s hard to dance when weighted down with chains.

  10. Sunstein is the idiot here. The issue in Arlington was a technical and limited issue of the standard of review to be applied by the courts in a limited category of cases. It leaves the general law of judicial deference to administrative agencies essentially where it has been for the past 30+ years. The decision “strengthens the hand” of federal regulators only because it did not weaken their hand.

    Still, given the number of recent federal decisions in which administrative agencies did not fare well, this one somewhat favorable decision must seem like a major victory to a regulation fan like Sunstein.

    1. I don’t think so. If the Roberts position had won, there would be a decade of litigation over whether the regulation being interpreted went to the scope of the agency’s authority and therefore got no deference. That’s why Scalia says that Roberts position is an attack on Chevron.

      1. Perhaps. But then we’d see courts drawing lines between “jurisdictional” interpretations and “non-jurisdictional” issues, which is implicit in Robers’ approach.

        My point, though, is that Scalia’s opinion leaves matters pretty much in status quo. It does not mark some great increase in agency power, like Sunstein is claiming.

  11. As Sunstein sees it, Scalia’s opinion in Arlington v. FCC “is an important win for all future presidents, whether Republican or Democratic,”

    Let’s see if Sunstein feels the same way when a Republican wields that power.

  12. I don’t know if the ruling is correct based on (bogus) precedent, but it’s bad news. This won’t get Congress to be any clearer in writing statutes; they’ll be happy to defer even more to agencies.

    I haven’t read the decision, but I do see at least a little difference between an agency’s construction of enabling legislation in gen’l and their deciding the particular question of jurisdiction: It’s the difference between being forced to choose in cases where they clearly must act, and taking on themselves to act where it’s not clear they must.

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