By: Agron Etemi*
Published Feb. 20, 2014
As we approach the thirtieth anniversary of the landmark decision of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., we are reminded of its continued vitality in modern administrative law, as well as the polarizing effect it has on judges, commentators, and practitioners alike. While most applaud the Chevron decision for introducing simplicity to the deference rules, others have called for terminating the doctrine altogether. Not startling, then, is the Supreme Court’s recent decision in City of Arlington v. FCC, which presented a fractured decision concerning the applicability of the Chevron framework.
In City of Arlington, the Court confronted the issue of whether to defer to the Federal Communication Commission’s (“FCC”) interpretation of a statutory ambiguity concerning the “scope of [the FCC’s] regulatory authority (that is, its jurisdiction)[.]” On the briefs, much of the fight appeared to focus on the distinction between an agency interpretation of jurisdictional and nonjurisdictional statutory provisions. Justice Scalia, for the majority, concluded that the distinction was meaningless because “every new application of a broad statutory term can be reframed as a questionable extension of the agency’s jurisdiction.” Moreover, he opined that the general conferral of rulemaking and adjudicative authority to the FCC warranted the conclusion that Congress delegated interpretive authority to the FCC to resolve the particular ambiguity in question. Having concluded so, the Court held that deference was due to the FCC’s interpretation under Chevron Step Two because the FCC’s interpretation was not unreasonable (or, to put it differently, it was not outside the bounds of its statutory authority).
Chief Justice Roberts saw it differently. Although Chief Justice Roberts agreed that the jurisdictional-nonjurisdictional distinction was a red herring, he disagreed with the majority’s assumption that the delegation of general rulemaking authority over a statute provided the FCC with authority to interpret any statutory ambiguity. Rather, citing his concerns over the vast growth of the administrative state, Chief Justice Roberts opined that the Court has a duty to first determine whether Congress intended the agency to have interpretive authority over the particular provision before affording it the ultimate weapon —Chevron deference.
This Essay has three primary tasks. The first, which is the subject of Part II, is to synthesize cogently the law regarding judicial deference to agency interpretations of statutory ambiguities. The second task, which is the subject of Part III, is to provide an analysis of each of the opinions in the City of Arlington decision. Finally, in Part IV, I conclude that Chief Justice Roberts’ dissenting opinion offers a more realistic approach than that offered by the majority that is also consistent with the Court’s precedent, and more faithful to the separation of powers doctrine.