Arlington v. FCC on the Fourth Branch of Government


Maybe you don’t think much on the role of agencies in today’s America. But with the recently discovered news that the IRS has used its considerable powers to target political enemies and the upcoming role of agencies in the enforcement of Obamacare, maybe you should. Harry Truman said “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing,” and that was when agencies had a considerably more limited role in our lives. That quote can be found in the dissenting opinion (C.J. Roberts joined by Kennedy and Alito) of Arlington v. FCC . That dissent continues:

One of the principal authors of the Constitution famously wrote that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, … may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.

The administrative state “wields vast power and touches almost every aspect of daily life…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. Ibid.  “[T]he administrative state with its reams of regulations would leave them rubbing their eyes.” . . . And the federal bureaucracy continues to grow; in the last 15 years, Congress has launched more than 50 new agencies. . . . And more are on the way. See, e.g., Congressional Research Service, C. Copeland, New Entities Created Pursuant to the Patient Protection and Affordable Care Act 1 (2010) (The PPACA “creates, requires others to create, or authorizes dozens of new entities to implement the legislation”).

Although the Constitution empowers the President to keep federal officers accountable, administrative agencies enjoy in practice a significant degree of independence. As scholars have noted, “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2250 (2001); see also S. Breyer, Making Our Democracy Work 110 (2010) (“the president may not have the time or willingness to review [agency] decisions”).. . . President Kennedy once told a constituent, “I agree with you, but I don’t know if the government will.” See id., at 1. The collection of agencies housed outside the traditional executive departments, including the Federal Communications Commission, is routinely described as the “headless fourth branch of government,” reflecting not only the scope of their authority but their practical independence.

… It would be a bit much to describe the result as “the very definition of tyranny,” but the danger posed by the growing power of the administrative state cannot be dismissed. [Most citations have been deleted.]

The subject matter of the decision isn’t sexy. The question of whether a court must give deference to an agency’s interpretation of its own jurisdiction isn’t a headline grabber. But, wait, give it a chance. The majority (Scalia joined by Thomas, Ginsburg, Sotomayor and Kagan) takes the position that the central question in the case is illusory:

The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not engaged in reasoned decisionmaking.. . . The false dichotomy between “jurisdictional” and “nonjurisdictional” agency interpretations may be no more than a bogeyman, but it is dangerous all the same. Like the Hound of the Baskervilles, it is conjured by those with greater quarry in sight. . . [i.e., to undermine deference to agencies when challenging their actions.]

The question may fairly be asked if the majority is then willing to write a blank check to agencies even when it comes to what they may enforce. But that isn’t the idea. Scalia continues:

… Those who assert that applying Chevron [an oft-cited case that requires courts to give deference to agency action] to “jurisdictional” interpretations “leaves the fox in charge of the henhouse” overlook the reality that a separate category of “jurisdictional” interpretations does not exist. The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decisionmaking that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.

Scalia and the majority don’t want courts to substitute their judgment for the judgment of agencies and note the scant guidelines it would have to do so.  The majority fears the hodge-podge of decisions from courts that would undermine the uniformity and predictability of agency action. To the majority, the jurisdictional/nonjurisdictional distinction is specious and merely gives license for courts to impose their own ideas. The dissent fears granting too much power to agencies.

If you read to this point, congratulations! Hope it was worth it. And if it wasn’t then sorrrrry, this is what the SCOTUS does.


Filed under Courts

6 responses to “Arlington v. FCC on the Fourth Branch of Government

  1. JimHeetderks

    When Scalia says “The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decisionmaking that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority,” he appears to agree with the dissenting opinion that “the danger posed by the growing power of the administrative state cannot be dismissed.”

    By siding with the majority is Scalia saying that the the Arlington case doesn’t lend itself to a court placing a limit an agency’s authority? If not, I would like to see an agency-limiting case that meets with the approval of Scalia and Thomas.

    • Jim, it’s a fascinating majority opinion. By both general statements and examples from prior cases, Scalia says there just isn’t any logical difference between jurisdictional questions and nonjurisdictional questions. He seems to indicate that he’s not really tieing the hands of the judiciary to review agencies any more than they have been. But then he warns against the judiciary substituting its judgment over that of the agency as if the majority opinion does restrict review of agency actions.

      Whatever the legitimacy of his logical arguments, you know agency attorneys will be citing this case in support of extensive deference to agency actions, i.e., there will be a thumb on the scales in favor of agency action.

      Whatever the substantial merits of the arguments might be, I would personally trust judges more than agencies.

  2. sean

    MM, there’s no question I’d much rather stand before a judge arbitrating between me and the agency than be subject to the little old women wearing tennis shoes, certain they understand the stipulations of the contract and my obligations therein and further convinced of their right to enforce said obligations against me without regard to the government’s obligations. Scalia needs to get right on this and in a hurry.

    • Don’t hold your breath waiting for a change, Sean.

      BTW, it seems that most people think judges first choose the side they want to win and only afterward do they come up with their argument. While I won’t deny that can happen, I think judges very frequently are led to their decisions after walking through the law with legal reasoning. Applied here, I don’t think Scalia first decided that he wanted agencies to win. He’s just convinced that past decisions have perpetuated deficient reasoning and believes deference is more consistent with the proper balance of powers in our government, i.e., agencies and not courts are supposed to make certain determinations.

  3. sean

    MM, I’m sure you’re right about Scalia. But, it points to an ignorance about what it’s really like to be across the table from an agency representative who rather than negotiate in good faith presumes to assert their own discretion apart from contract obligations, because, we’ll, they took a four week course in D.C. on negotiating with civilian contractors and they assume they have the full weight and credit of the U.S. government behind them in their decisions. Give me a good contract lawyer and a court date, all day every day.

    • I get it, Sean. We once discovered that our two adopted children had a sibling in the system and intervened to offer ourselves as an adoption option, and DHS was just brutal. They treated us like they probably treat terminated parents – like we were perpetrators of some sort. There is a law that gives placement with siblings a preference, but they never told us about it in the first place and then basically set up a situation to make it look like the child would not work with us. Clearly the worker had some kind of friendship or deal with the other person who had been lined up, but how to hold her accountable was mysterious and it likely would have cost us a good deal of money to expose what had happened. Yeah, agencies can be out of control.

      But I’m thinking Scalia’s concern was not “what do I think would work best” but “how is this system supposed to work?” And, of course, people usually complain about courts butting in where they don’t belong.

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