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.