Scalia vs. Roberts on Federal Regulatory Power


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.