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Justices breathe new life into Chevron deference

The Supreme Court on Monday, May 20, issued an opinion that may revive Chevron deference by courts to actions of federal regulators. A 6-3 majority led by Justice Antonin Scalia affirmed a Fifth Circuit decision in favor of the Federal Communication Commission (FCC) and held that a federal agency’s interpretation of a statutory ambiguity regarding its jurisdiction is entitled to Chevron deference.

Background. The Telecommunications Act of 1996 restricted state and local authorities’ ability to regulate wireless tower siting decisions. One of these limits requires local authorities to act on siting applications within a reasonable time.

The FCC, in response to a petition by CTIA — The Wireless Association, issued a declaratory ruling that “reasonable time” means a rebuttable presumption of 90 days to process collocation applications and 150 days for other applications. The City of Arlington, Texas challenged the FCC’s ruling. Ultimately, the Fifth Circuit held in favor of the FCC and the Supreme Court affirmed that decision.

Chevron reaffirmed. The majority opinion recited the familiar Chevron two-step test: (1) Did Congress speak on the precise question at issue?; and (2) if not, did the agency adopt a permissible construction of the law? The Court noted that Chevron acknowledged that Congress intended for agencies to fill gaps resulting from ambiguities in the laws they administer. Congress also has demonstrated the ability to speak clearly when it seeks to limit agency action and to speak more generally when it gives agencies discretion.

Citing H. Edwards & L. Elliott, Federal Standards of Review 146 (2007), the Court said: “In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.”

Here, the FCC had interpreted an ambiguity in its own jurisdiction. The Court cited many cases where Chevron applied to agency jurisdiction. The Court further noted that federalism was not an issue here, but a decision against the FCC could shift many decisions that belong to agencies to the courts.

According to the majority, the arguments against the FCC here were intended to undermine Chevron: “…[m]ake no mistake—the ultimate target here is Chevron itself.”

The dissent. Chief Justice Roberts’ dissent, joined by Justices Kennedy and Alito, expressed concerns about the power held by administrative agencies. According to the dissent, courts must decide whether Congress had delegated to an agency the power to determine an ambiguity. Citing Marbury v. Madison, the dissent noted that the prominence of federal agencies had not altered the court’s power to decide what the law is.

Wrote Roberts: “My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference.”

Citing the court’s prior Chevron opinions, the dissent further noted that Chevron’s “legitimacy” is predicated on Congress delegating interpretive authority to agencies. As a result, the dissent said that courts may defer to an agency interpretation only if Congress authorized the agency to interpret a particular ambiguity.

Concurrence. Justice Breyer agreed with the majority that the distinction between jurisdictional and nonjurisdictional decisions is a “mirage” when the question is whether an agency acted within its statutory authority. Breyer also agreed that the FCC’s statute left gaps for it to fill with its own interpretation and thus he rejected the petitioner’s argument that the presence of a savings clause and a judicial review provision barred the FCC from construing the law.

But Breyer appeared to stake out a middle ground between the majority and the dissent: “I say that the existence of statutory ambiguity is sometimes not enough to warrant the conclusion that Congress has left a deference-warranting gap for the agency to fill because our cases make clear that other, sometimes context-specific, factors will on occasion prove relevant.”