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Argument recap: Unraveling the fear of unraveling Chevron

At Wednesday’s argument in the consolidated cases of City of Arlington v. FCC and Cable, Telecommunications, and Technology Committee v. FCC, the Court took up a question that has long been debated in administrative law: whether federal agencies may receive deference under the famous framework of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. when they interpret their own “jurisdiction.”  The elusive definition of jurisdiction in the agency context has always been a focus of the debate.  In a concurring opinion in Mississippi Power & Light Company v. Moore in 1988, Justice Scalia stated that “it is plain that giving deference to an administrative interpretation of its statutory jurisdiction or authority is both necessary and appropriate,” in part because “there is no discernible line between an agency’s exceeding its authority and an agency’s exceeding authorized application of its authority.”  Not surprisingly, the challenge of distinguishing jurisdictional questions from others took center stage in Wednesday’s argument.

As I described in a previous post, the briefs in this case offered different definitions of jurisdictional questions.  Petitioner City of Arlington pressed a narrow construction, arguing that only “interpretive jurisdiction” – whether an agency has authority to issue binding interpretations of a particular statutory provision – is at issue in this case.  (Arlington says this is the same question the Court always asks at “Step Zero” of its Chevron inquiry, pursuant to the Court’s decision in United States v. Mead.)  In contrast, a group of state and local organizations on the city’s side – the International Municipal Lawyers’ Associations (IMLA) and others – offer a much broader definition.  Represented by former Solicitor General Paul Clement, IMLA’s briefs argue that the jurisdictional category includes all agency decisions that “concern the who, what, where, and when of regulatory power: which subject matters an agency regulates and under what conditions.”  Under this view, the only agency interpretations eligible for Chevron deference are “how” questions, or those that decide “in what fashion” an agency can implement its power.  A good deal of questioning at Wednesday’s argument sought to tease out the implications of these narrow and broad definitions – and to ascertain whether the two are truly distinct.

Thomas C. Goldstein of Washington, arguing for petitioner City of Arlington, began his argument by addressing the definitional difficulty directly: “This case can get complicated quickly,” he said, “because the word ‘jurisdiction’ means a lot of different things to a lot of different people in a lot of different contexts.”  Goldstein said he would limit his argument to the “threshold jurisdictional question, which we call interpretive jurisdiction.”

Before Goldstein got very far, however, questioning began on the question that was not presented.  As my previous post described, the Court denied certiorari on the question whether the FCC actually has the authority it claimed to interpret Section 332(c)(7)(B).  Usually, a denial of certiorari means the Court won’t resolve a question.  Yet the parties briefed the question of statutory authority anyway, and resolving it may be appealing to some members of the Court.  The question of the FCC’s authority under Section 332(c)(7)(B) may seem simpler than the Chevron question – and if it turns out that the Commission clearly has authority, why wade into the Chevron morass?  Along these lines, Justice Ginsburg asked Goldstein more than once why this case isn’t very simple: “The Commission’s rulemaking power, as you know, is very broad,” she said.  “They have power to make the rules needed to carry out provisions of the Act.”  And Section 332 “counts as a provision of the Act.  So why isn’t it just a proper implementation of that rulemaking authority?”  Goldstein countered that he was conscious that the Court had limited its grant to “the abstract Chevron question.”  But Justice Ginsburg responded that “[t]he abstract question isn’t really presented.”

Justice Breyer, too, expressed interest in addressing the question of the Commission’s authority – and he too suggested that the Commission does have the authority it claimed.  He noted that the Federal Communications Act is “an expert statute” administered by “an agency that has all kinds of discretionary authority” and which includes “an important substantive question” about telecommunications.  These factors, Justice Breyer opined, suggest that “Congress, which is not expert, would have wanted the FCC to figure this one out.”

Before Goldstein had answered the statutory authority question, however, Justice Scalia directed him back to the Chevron question.  Justice Scalia readily agreed with Goldstein that the Court must review de novo the “entry question,” but Justice Scalia characterized that question as “whether the FCC has the jurisdiction to administer the Federal Communications Act.”  Justice Scalia said that is “a good deal short of” the inquiry petitioner sought, which he framed as whether the agency’s “implementation of this particular provision goes beyond what its authority is.”

Justice Kagan – who, like Justices Breyer and Scalia, was once an administrative law professor – struck further at petitioner’s provision-specific approach.  “[A]t one level, you are right,” she told Goldstein – “[i]t’s just a level that doesn’t help you very much.”  Justice Kagan agreed that there is always a preliminary question whether Chevron applies.  But she explained that the Court usually resolves that question using “very simple rules,” not the sort of “provision by provision, subsection by subsection” search that petitioner sought.  The Court’s simple questions, Justice Kagan explained, are whether the agency is interpreting its organic statute, whether that organic statute gives the agency lawmaking power, and whether the agency has acted under that power.  Three yeses, in Justice Kagan’s view, send a case on to Chevron’s two steps without a need for petitioner’s more particularized threshold inquiry.

Justice Kennedy seemed more receptive to petitioner’s position.  He suggested that there may be some parts of a statute that are subject to an agency’s “Chevron rulemaking authority” and some that are not.  He also noted that an agency denied Chevron deference isn’t ignored altogether; its opinion can still receive “respect” under Skidmore v. Swift & Co.   This suggestion evoked disapproval from Justice Scalia, who has previously called Skidmore an anachronism” and “a recipe for uncertainty, unpredictability, and endless litigation.”

Chief Justice Roberts, like Justice Kennedy, asked questions relatively friendly to the city’s position.  The Chief Justice tried to move away from the troublesome “jurisdiction” label and suggested that petitioner’s position is simply that deference shouldn’t apply where “Congress didn’t give the agency lawmaking authority” over the provision at issue.  But Justice Scalia pushed back, noting that in these types of cases “it’s always a question of how much authority Congress gave the agency.”  In his view, holding that an agency lacks authority to interpret a provision is “no different” from holding that a rule “goes too far.”  And if that’s the case, petitioner hasn’t succeeded in providing a limiting principle.

The Solicitor General began his argument with a “central point”: the Chevron framework is preceded by an initial de novo inquiry, but that inquiry asks only whether “Congress has delegated to the agency generally the authority to make rules carrying the force of law,” and whether “the rule in question was promulgated in exercise of that authority.”  Echoing the views of Justices Kagan and Scalia, Verrilli noted that this inquiry is made “in general” rather than provision by provision.

General Verrilli then turned to the problems with petitioner’s position.  He argued that precluding deference in so-called jurisdictional cases “is really a Pandora’s box situation,” and he emphasized the lack of “a clear, neat dividing line” between issues of jurisdiction and issues of substance.  He added that Goldstein’s “interpretive jurisdiction” and the IMLA’s broader who-what-when-where framework both reduce to the same argument, which is that agencies can’t act in excess of their authority.

Chief Justice Roberts asked Verrilli to address the possibility that this provision should be treated differently “because it concerns the authority, or lack thereof, of state and local government agencies.”  And so began a rather heated discussion of the significance of federalism in this case.  Chief Justice Roberts suggested that the state-federal implications make this case different from other jurisdictional cases, remarking that “obviously the dividing line between state authority and federal authority is a more significant one than some of the other questions as to which agencies get deference.”  Justice Kennedy expressed sympathy for the notion that agencies shouldn’t get to decide when to intrude upon state authority, because “agencies have no historic responsibility or tradition, quite unlike Article III courts, of safeguarding the federal balance.”

Justice Scalia, however, disagreed that federalism concerns are implicated in this case.  The statute, Justice Scalia pointed out, gives authority to the federal government, not the states.  There is “an interesting separation of powers question” as to whether the authority is best allocated to courts or agencies, he said, but there is no question “whether it’s the states or the federal government that’s going to call the tune here.”

Chief Justice Roberts did not seem persuaded.  He rejected “the idea that there is no difference between the federal judiciary defining the limits between state and federal power, and having an agency of unelected bureaucrats responsible to the executive saying when the state controls and when the federal controls” – “those are vastly different propositions.”  Justice Kennedy seconded skepticism of giving such authority to “unelected federal bureaucrats.”

Justice Breyer, in contrast, appeared to side with Justice Scalia on whether federalism concerns were implicated. It would be one thing, he said, if the federal agencies were adding some requirement or burden to states.  But the statute already requires action within a reasonable time.  What’s being added to that, he asked?

Near the close of the Solicitor General’s argument, Justice Ginsburg returned once more to the question of the statute’s apparent clarity.  Noting that the statute says the state has to conform to a reasonable period of time, she asked: What is ambiguous about this provision?  Justice Scalia pursued a similar question:  why “an easy answer to the whole case” didn’t lie in the statute’s text, which identifies the provision at issue as one of the “limitations” on state authority.

General Verrilli used these questions to emphasize  the absence of ambiguity, and added that Section 332(c)(7)(B) is “just a normal substantive standard,” not a jurisdictional provision.  By “giving it more precise content,” the agency was simply “doing its job.”  Petitioner’s contrary position, the Solicitor General stressed at the end of his allotted time, “threaten[s] to unravel the Chevron framework and destabilize administrative law.”

When Goldstein returned to the lectern for rebuttal, Justice Kennedy began with a quip: “Chevron is at an end.  It’s unraveled.”  Goldstein joked that he regretted having “contributed to such horror,” and then characterized the perceived unraveling of Chevron as “silliness.”  Justice Kagan quickly disagreed: “with respect, it’s not silliness.”  She perceived as “a fair question” how petitioner’s argument does not collapse into a much broader argument that would preclude deference on any question implicating an agency’s authority.  She pushed Goldstein to explain, in particular, how his position was really any different from IMLA’s broader position, noting that Goldstein had been “running as fast as you can away” from that broader definition.  Goldstein emphasized that he was addressing only “the threshold question, did Congress give the agency the power to interpret this provision,” but it seemed that Goldstein and Justice Kagan were, in Goldstein’s words, “at loggerheads.”

*          *          *

That the City of Arlington argument never cohered around a workable definition of jurisdictional questions may bode well for the government.  If the Court believes there is no limiting principle for jurisdictional questions, then the Solicitor General’s admonition – that excluding such questions from Chevron would “unravel the Chevron framework” – may become a dispositive concern.

The oral argument did suggest ways the Court might avoid resolving the question in its broadest form, but whether they could garner majority support remains to be seen.  At least two members of the Court indicated interest in placing this case in a special category due to its implications for the federal-state balance.  Taking a different tack, at least two Justices suggested that the Commission’s authority in this case is clear, which could eliminate the need to resolve the deference question at all.  And other views may still surface – Justice Alito, like Justice Thomas, did not ask a single question.

Miriam Seifter is a Visiting Researcher at Georgetown University Law Center.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioners in these cases.

Recommended Citation: Miriam Seifter, Argument recap: Unraveling the fear of unraveling Chevron, SCOTUSblog (Jan. 18, 2013, 12:17 PM),