October 10, 2012
In an ominous development for the FCC, the Supreme Court agreed Friday to hear the legal question of whether a Federal Court must give “Chevron deference” to an administrative agency (FCC) when an agency interprets a law in a way which could determine its own jurisdiction. I believe this presages that the Supreme Court will decide next year that regulatory agencies cannot be the effective final arbiter of their own power and jurisdiction under the law, because that constitutional power rests with Congress and the courts.
“Chevron deference” is a 1984 Supreme Court administrative law precedent that directs courts to defer to a regulatory agency’s expertise in interpreting statutes directing regulatory action unless their interpretation is unreasonable.
FCC-watchers know that “Chevron” has been an amorphous source of exceptional grey-area legal power that the unelected FCC commissioners frequently have tapped into in order to self-augment their perceived power to accomplish its many policy goals. Importantly, the FCC probably needs very generous Chevron deference, if the FCC’s Open Internet Order and net neutrality regulations are to survive the pending legal challenge in the D.C. Court of Appeals. Remember, the D.C. Court of Appeals overturned the FCC’s prior net neutrality enforcement regime in Comcast vs. the FCC, because the FCC was effectively self-asserting “boundless authority” to regulate where it had no direct statutory authority to do so from Congress.
This is a very big deal, especially given how dependent the FCC has become on Chevron deference to try and morph its obsolete monopoly-era regulatory powers into sustainable competitive-Internet-era regulatory powers. For example, Chevron deference is basically the magic FCC pixie dust that the FCC sprinkled on Section 706 to mutate it from a obviously de-regulatory provision into a boundless pro-regulatory provision.
Why is the FCC’s Chevron deference power at such risk?
First, it takes at least 4 Justices to hear a case, so at least four Justices have signaled that they see a serious legal or constitutional problem here to resolve. Only a very small percentage of cases are worthy of being heard by the Supreme Court. That this particular issue has been deemed worthy should grab the attention of all who work with, or follow, the FCC.
Second, since the legal limits of administrative law, jurisdiction and due process are not very political, but inherently highly-Constitutional in nature, it is likely that where there is agreement among at least four Justices there is likely to be agreement among even more Justices. That’s because this question inherently is a pretty easy decision for the Supreme Court to make, because at bottom it is about whether or not the Constitution and the Supreme Court’s interpretation of the law are the final authority or whether regulatory agencies are. It does not look like a tough call on first impression.
Third, the primary logical reason for the SCOTUS to hear this case would be to reestablish constitutional limits on administrative agencies, because to not hear the case would simply maintain the status quo. SCOTUS loathes to waste precious court time affirming the basic legal status quo.
Fourth, this case implicates the most fundamental of U.S. constitutional principles, separation of powers and checks and balances on power to avoid the tyranny of unlimited power like a king. SCOTUS logically takes cases like this one to preserve constitutional limits on government power, not to confer unlimited power.
Finally, the problem of unlimited potential power is obvious to a junior high civics student. He/she knows it is not right for anyone to be judge, jury and executioner, no more than it would be right for a competitive player to also be their own referee and scorekeeper, or for a student to be their own official grader and keeper of their official transcript.
In short, would you want to be the government official to try and argue before the Supreme Court that an administrative agency should enjoy court deference to be the final arbiter of one’s own legal power and authority? This does not look like a tough call. It is obviously in the interests of our constitutional democracy based on the rule of law, for the Supreme Court to limit administrative agencies to the authority Congress has specifically granted to them.
In a word, why should administrative agencies be the only entities in government not leashed to the law?
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