Nos. 11-1545 & 11-1547
IN THE
'nprm QCourt of tjt nttb 'tati
CITY OF ARLINGTON, TEXAS; ET AL.,
Petitioners,
V.
FEDERAL COMMUNICATIONS COMvllSSION; ET AL.,
Respondents.
CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY
COMMITTEE OF THE NEW ORLEANS CITY COUNCIL,
Petitioner,
V.
FEDERAL COMMUNICATIONS CoMMIssIoN, ET AL.,
Respondents.
On Writs of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF OF AMICI CURIAE CATO INSTITUTE,
PROFESSORS JONATHAN H. AILER,
ROEDERICK M. HILLS, JR., JAMES
IIUFFMAN, DANIEL A. LYONS, ANDREW P.
MORRISS, NATHAN A. SALES, AND DAVID
SCHOENBROD IN SUPPORT OF
PETITIONERS
Ilya Shapiro
Nicholas Quinn Rosenkranz
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, D.C. 20001
202-842-0200
ishapiro@eato.org
Cohn E. Wrabley
David J, Bird
Counsel of Record
REED SMITH up
225 Fifth Avenue
Pittsburgh, PA 15222
412-288-3131
dbird@reedsmith.com
Counsel for Amici Curiae
TABLE OF CONTENTS
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Page
INTEREST OF AMIGI CURIAE I
SUMMARY OF ARGUMENT........... 3
ARGUMENT...... 6
Chevron Applies Only When
Congress Has Delegated
Interpretive Authority To An
Agency........................... 6
II. Courts Should Presume Ghevron
Does Not Apply To An Agency's
Interpretation Of Its Own
Jurisdiction-Controlling Statutory
Provisions 14
A. The Court Has Never Held That
An Agency's Interpretation Of
Jurisdiction-Controlling
Provisions Is Eligible For
Ghevron Deference 14
B. An Agency's Interpretation Of
Jurisdiction-Controffing
Provisions Should Not Be Eligible
For Ghevron Deference Unless A
Court Finds A Clear Sign
Congress Vested The Agency
With Authority To Interpret
Ambiguities In Those Provisions 17
C. A Strong Presumption Against
Chevron Deference In Cases Of
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Jurisdiction-Controlling
Provisions Comports With
Constitutional Principles
Requiring That A Delegation To
An Agency Be Guided By An
Intelligible Principle 18
D. A Strong Presumption Against
Chevron Deference Also
Comports With The
Administrative Procedure Act
And Decades Of Precedents 21
E. A Strong Presumption Against
Chevron Deference Would Limit
Agency Aggrandizement, While
Ensuring That Congress Can
Enact A Statute Making The
Agency The Primary Interpreter
Of Its Own Jurisdiction, If And
When Congress Wishes To Do So 25
III. The Fifth Circuit Did Not Follow
The Proper Path When It
Automatically Treated The FCC's
Interpretation Of Juris diction-
Controlling Statutory Provisions As
Eligible For Chevron Deference 30
CONCLUSION 32
111
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TABLE OF AUTHORITIES
Page(s)
Cases
ACLUv. FCC,
823 F.2d 1554 (D.C. Cir. 1987) 29
Adamo Wrecking Co. v. United States, 434
U.S. 275 (1978) ......................................... ........ 23
Adams Fruit C'o. u. Barrett,
494 U.S. 638 (1990) ........................ 8, 17, 23
Addison v. Holly Hill Fruit Prods., Inc.,
322 U.S. 607 (1944) ................................... 26
American Bar Ass'n v. FTC,
430 F.3d 457 (D.C. Cir. 2005) ................. ......... 11
American Ship Building Co. u. NLRB,
380 U.S. 300 (1965) 21
AT&T Gorp. v. Iowa Public Utilities Bd.,
525 U.S. 366 (1999) 20
Atlantic City v. FERC,
295 F.3d 1 (D.C. Cir. 2002) 11
Bolton v. Merit Sys. Prot. Bd.,
154 F.3d 1313 (Fed. Cir. 1998) 8
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988) 19
Bureau of Alcohol, Tobacco and Firearms v.
FLRA, 464 U.S. 89 (1983) 20, 21
'V
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Chevron, U.S.A., Inc. v. Natural Res. Def.
€ouncil, Inc., 467 U.S. 837 (1984) ............. passim
Christensen v. Harris Gounty,
529 U.S. 576 (2000).................................... ... 9, 17
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ............................... ...... 18
City of New York v. FCC,
486 U.S. 57(1988) 13
Gommodity Futures Trading Gomm'n v.
Schor, 478 U.S. 833 (1986) 15
Crandon v. United States,
494 U.S. 152 (1990) 20
Dole v. United Steelworkers of America,
494 U.S. 26 (1990) 16
Dunn v. Gommodity Futures Trading
Gomm'n, 519 U.S. 465 (1997) 9, 17
Durable Mfg. Co. v. United States Dep't of
Labor, 578 F.3d 497 (7th Cir. 2009) 8
Federal Maritime Gomm 'n v. Seat rain Lines,
Inc., 411 U.S. 726 (1973) 23
Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120 (2000) 12, 25
Gonzales v. Oregon,
546 U.S. 243 (2006) 11, 13
Hydro Res., Inc. v. EPA,
608F.3d1131 (lOthOir. 2010) 8
V.............................................
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Industrial Union Dep't, AFL-. GlO v.
American Petroleum Institute,
448 U.S. 607 (1980).................................. 19, 20
INS v. Cardoza..Fonseca,
480 U.S. 421 (1987) 6
La. Pub. Seru. Gomm'n v. FCC,
476 U.S. 355 (1986) 19
Loving v. United States,
517 U.S. 748 (1996) 19
Lyon County Bd. of Gomin'rs v. EPA,
406 F.3d 981 (8th Cir. 2005) 8
Massachusetts v. EPA,
549 U.S. 497 (2007) 16,28
MCI Teiecomm. Corp. v. AT&T,
512 U.S. 218 (1994) 16
Michigan v. EPA,
268 F.3d 1075 (D.C. Cir. 2001) 11
Mississippi Power & Light Go. v. Mississippi
cx rd. Moore, 487 U.S. 354 (1988).. 15, 16, 23, 29
Mist retta u. United States,
488 U.S. 361 (1989) 19
N Iii. Steel Supply Go. v. Secy of Labor,
294 F.3d 844 (7th Cir. 2002) 8
Nat '1 Gable & Telecommunications Ass 'ii u.
Brand X Internet Services,
545 U.S. 967 (2005) 16
vi
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Nat'l Cable Television Ass'n v. United States,
415 U.S. 336, 340-41 (1974) ............................. 20
NE Hub Partners, L.P. v. GNG Transmission
Corp., 239 F,3d 333 (3d Cir. 2001) 8
NLRB v. City Disposal Sys. Inc.,
465 U.S. 822, 829 (1984) 13
NLRB v. Food and Commercial Workers,
484 U.S. 112(1987) 20
Puerto Rico Mar. Shipping Auth. v. Valley
Freight Sys., Inc., 856 F.2d 546
(3d Cir. 1988 8
Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969) 13
Skidmore v. Swift & Go.,
323 U.S. 134 (1944) 9
Sm iley v. Citibank (S.D.),
517 U.S. 735 (1996) 9
Social Security Board v. Nierotko,
327 U.S. 358 (1946) 27
Texas v. United States,
497 F.3d491 (5th Cir. 2007) 11
United States v. Mead Corp.,
533 U.S. 218 (2001) passiin
United Transp. Union-Illinois Legislative Bd.
v. Surface Transp. Bd., 183 F.3d 606
(7th Cii'. 1999) 8
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Constitutional Provisions
U.S. Const. art. I,. 1 18
Statutes
5 U.S.C. § 558(b) 22
5 U.S.C. § 706 21
5 U.S.C. § 706(2)(O 22
Other Authorities
Timothy K. Armstrong,
Chevron Deference and Agency Self-
Interest, 13 Cornell J. L. & Pub. Pol'y 203
(2004) 26
William Blackstone,
Commentaries, vol. 1 25, 26
Stephen Breyer,
Judicial Review of Questions of Law and
Policy, 38 Admin. L. Rev. 363 (1986) 30
Nathan S. Chapman & Michael W.
McConnell, Due Process as Separation of
Powers, 121 Yale L.J. 1672 (2012) 18, 20
William N. Eskridge, Jr. & Lauren E. Baer,
The Gontinuum of Deference: Supreme
Court Treatment of Agency Stat utOry
Interpretations from Chevron to Hamdan,
96 Geo. L.J. 1083 (2008) 24
vnl
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William N. Eskridge, Jr. & Philip P. Frickey,
Quasi-Constitutional Law: Clear
Statement Rules as G'onstitutional
Lawmaking, 45 Vand. L. Rev. 593 (1992).......... 7
Ernest Gelihorn & Pail Verkuil,
Controlling G'hevron-Based Delegations,
20 Cardozo L. Rev. 989 (1999) 7, 24, 27
David M. Hasen,
The Ambiguous Basis of Judicial
Deference to Administrative Rules, 17 Yale
J. on Reg. 327 (2000) 7
Douglas W. Kmiec,
Judicial Deference to Executive Agencies
and the Decline of the Nondelegation
Doctrine, 2 Admin. L.J. 269 (1988) 7
Daniel A. Lyons,
Tethering the Administrative State: The
Case Against G'hevron Deference for FCC
Jurisdictional Claims, 36 J. Corp. L. 823
(2011) 8, 17, 29
John F. Manning,
Textualisin as a Nondelegation Doctrine,
97 Colum. L. Rev. 673 (1997) 20
John F. Manning,
The Nondelegation Doctrine as a G'anon of
Avoidance, 2000 Sup. Ct. Rev. 223 27
Thomas W. Merrill,
The Mead Doctrine: Rules and Standards,
Meta-Rules and Meta-Standards, 54
Admin. L. Rev. 807 (2002) 9
ix
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Thomas W. Merrill,
The Story of Chevron: The Making of an
Accidental Landmark, in Administrative
Law Stories (Peter L. Strauss ed., 2006) ..,.... . 6
Thomas W. Merrill & Kristin E. Hickman,
Chevron's Domain,
89 Geo. U. 833 (2001) passim
Lars Noah,
Interpreting Agency Enabling Acts:
Misplaced Metaphors in Administrative
Law, 41 Win. & Mary L. Rev. 1463 (2000)... 24
Richard J. Pierce, Jr.,
Reconciling Chevron and Stare Decisis,
85 Gee. L.J. 2225 (1997) 7
Nicholas Quinn Rosenkranz, Federal Rules of
Statutory Interpretation, 115 Harv. L.
Rev. 2085 (2002 10
Nathan Alexander Sales & Jonathan H.
Adler, The Rest Is Silence: Chevron
Deference, Agency Jurisdiction, and
Statutory Silences, 2009 U. Ill. L. Rev.
1497 (2009) passim
Cass R. Sunstein,
Interpreting Statutes in the Regulatory
State, 103 Harv. L. Rev. 405 (1989) 26
Cass R. Sunstein,
Nondelegation Gaiions, 67 IL Chi L. Rev.
315(2000) 20
x..................................
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Cass R. Sunstein,
Chevron Step Zero, 92 Va. L. Rev. 187
(2006) 7, 8, 11
Adrian Vermeule,
Introduction: Mead in the Trenches,
71 Geo. Wash. L. Rev. 347 (2003) ........... ...... 12
Ernest A. Young,
Executive Preemption, 102 Nw. U. L. Rev.
869 (2008)...................................,.... ... 26
The Federalist No. 10 (James Madison)
(C. Rossiter ed. 1961) 25, 26
The Federalist, No. 51 (James Madison)
(C. Rossiter ed. 1961) 26
The Federalist No. 80 (Alexander Hamilton)
(C. Rossiter ed. 1961) 26
INTEREST OF AMIGI CURIAE1
Amici curiae include a nonpartisan public policy
research foundation dedicated to advancing the
principles of individual liberty, free markets, and
limited government and seven law professors who
teach and write about administrative law,
constitutional law, and related subjects.
This case is important to the ainici because they
believe the Fifth Circuit's extension of Ghevron
deference to an independent federal agency's
interpretation of its own jurisdiction-controlling
statutory provisions is inconsistent with decades of
this Court's administrative law precedents, the
constitutional principles governing the construction
of statutory delegations of power to federal agencies,
and the system of checks and balances established by
the Constitution.
The Cato Institute was established in 1977 as a
nonpartisan public policy research foundation
dedicated to advancing the principles of individual
liberty, free markets, and limited government. Cato's
Center for Constitutional Studies was established in
1989 to help restore the principles of limited
constitutional government that are the foundation of
liberty. Toward those ends, Cato publishes books and
1 Pursuant to this Court's Rule 37.3(a), letters of consent from
all parties to the filing of this brief have been submitted to the
Clerk. Pursuant to this Court's Rule 37.6, ainici state that this
brief was not authored in whole or in part by counsel for any
party, and that no person or entity other than arnici or their
counsel made a monetary contribution intended to fund the
preparation or subimssion of this brief.
2studies, conducts conferences and forums, and.
publishes the annual Cato Supreme Court Review.
Jonathan H. Adler is the Johan Verheij
Memorial Professor of Law and Director of the
Center for Business Law and Regulation at the Case
Western Reserve University School of Law in
Cleveland, Ohio, where he teaches and writes on
administrative, constitutional, and environmental
law.
Roderick M. Hills, Jr. is the William T. Comfort,
III Professor of Law at the New York University
School of Law. He teaches and writes on
administrative law, constitutional law, and conflicts
of laws.
James Huffman is Dean Emeritus at the Lewis &
Clark Law School, where he teaches and writes on
constitutional law, environmental law, and
jurisprudence. He is a member of the Hoover
Institution Property Rights, Freedom and Prosperity
Task Force.
Daniel A. Lyons is an assistant professor at
Boston College Law School, where he teaches and
writes on property, telecommunications and.
administrative law.
Andrew P. Morriss is the D. Paul Jones, Jr. &
Charlene A. Jones Chairholder of Law at the
University of Alabama School of Law in Tuscaloosa,
Alabama, where he teaches and writes on regulatory
issues involving environmental, energy, and offshore
financial centers. He is affiliated with the Property &
Environment Research Center, the Regulatory
Studies Center at George Washington University,
the Institute for Energy Research, and the Mercatus
Center at George Mason University. He is a
3Research Fellow at the New York University Center
for Labor and Employment Law, and chair of the
editorial board of the Cayman Financial Review.
Nathan A. Sales is an assistant professor of law
at George Mason University School of Law where he
teaches and writes on national security law,
administrative law, and criminal law.
David Schoenbrod is the Trustee Professor of
Law at New York Law School in New York, New
York and a visiting scholar at the American
Enterprise Institute in Washington, D.C. He teaches
and writes on legislation, administrative regulation,
constitutional law, and environmental law.
The views expressed herein are those of the
amici and do not necessarily reflect the views of the
am ici law professors' employers or any other group
or organization with which they may be affiliated.
SUMMARY OF ARGUMENT
The Court has never decided whether a federal
agency's interpretation of its own jurisdiction-
controlling statutory provisions should be eligible for
deference under the two-step inquiry articulated in
Chevron, U.S.A., Inc. v. Natural Res. Def Gouncil,
Inc., 467 U.S. 837 (1984), but the foundation for the
answer was made explicit in United States v. Mead
Gorp., 533 U.S. 218 (2001). There, the Court held
that an agency's interpretation of a statute is eligible
for deference under Ghevron only "when it appears
that Congress delegated authority to the agency
generally to make rules [about the meaning of that
statutej carrying the force of law." Id. at 226-27.
Mead teaches that there must be a clear sign of
congressional intent to delegate authority to
interpret a statutory provision before a court gives
4"controlling weight" (that is, "Chevron deference") to
an agency's reasonable interpretation of ambiguities
in that provision. Mead's teaching comports with (1)
Article I of the Constitution, which vests all
legislative power in the Congress, (2) the rule that
federal agencies have no inherent powers but only
delegated ones, and (3) the principles directing that
statutes should be construed to avoid difficult
constitutional questions and in light of the modest
constraints of the nondelegation doctrine. It also
comports with the Administrative Procedure Act and
decades of this Court's precedents. And it limits the
potential for aggrandizement by federal agencies,
while ensuring that Congress is able to delegate
authority to an agency to interpret statutory
ambiguities when necessary and proper.
Meaci's implications for the particular question
presented in this case are clear. A reviewing court
should presume that an agency's interpretation of
ambiguity in jurisdiction..controlling provisions is not
eligible for Chevron deference. Questions of agency
jurisdiction are questions of law that are for the
courts to resolve in the first instance. Further, a
statutory ambiguity, standing alone, does not
constitute a delegation of interpretive authority to a
federal agency, let alone a delegation of authority to
an agency to determine the scope of its own
jurisdiction.
The Fifth Circuit's decision in this case does not
follow the proper analytical path. The Fifth Circuit
neither looked for, nor found, a clear sign of
congressional intent to delegate authority before
deferring to the FCC's interpretation of the alleged
ambiguity in the provisions at issue here. Standing
alone, that error should lead to vacatur of the Fifth
0Circuit's judgment and remand for further
proceedings, consistent with Mead and the Court's
opinion.
Affirming the Fifth Circuit's judgment and
reflexively treating the FCC's interpretation of its
own jurisdiction-controlling provisions as eligible for
Chevron deference would be inconsistent with Mead
and would establish a principle of statutory
construction in direct opposition to the principles
used by the Court in other cases interpreting
statutes to avoid constitutional delegation problems.
Treating the jurisdictional interpretations of
federal agencies as eligible for Ghevron deference
also would create a particular risk of agency
aggrandizement. Just as one would not let foxes
guard henhouses, courts should not presume
Congress has authorized agencies to determine their
own jurisdiction, for agencies will be prone to
interpret ambiguities in line with agency interests.
Extending eligibility for Ghevron deference to
interpretations of jurisdiction-controlling provisions
also would give agencies a systematic advantage over
Congress on questions of their own jurisdiction, and
make it easier for Congress to shirk its responsibility
to delegate power in a clear manner. None of those
outcomes would be desirable or consistent with the
careful allocation of power among the branches of
government set forth in this Court's precedents.
The Court should adhere to Mead, vacate the
Fifth Circuit's judgment, and remand the case so
that the Fifth Circuit can make an appropriate de
novo assessment of the agency's jurisdiction, without
Ghevron deference to the agency's views on that
threshold matter.
6ARGUMENT
I. Chevron Applies Only When Congress
Has Delegated Interpretive Authority
To An Agency.
The Court's decision in Ghevron set forth a
familiar two-step inquiry for courts to apply when
evaluating agency interpretations of federal statutes.
In step one, the reviewing court considers the
statutory text to determine "whether Congress has
directly spoken to the precise question at issue."
Ghevron, 467 U.S. at 842. If so, the statute controls,
"for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress."
Id. at 842-43. If the statute is "silent or ambiguous,"
however, the court proceeds to step two and must
defer to the agency's statutory interpretation, so long
as it "is based on a permissible construction of the
statute." Id. at 843. In other words, at step two, the
agency's interpretation is given "controlling weight"
unless it is "arbitrary, capricious, or manifestly
contrary to the statute." Id. at 844 (emphasis added).
As the Court explained in INS v. Gardoza-Fonseca,
480 U.S. 421, 448 (1987), "the courts must respect
the interpretation of the agency to which Congress
has delegated the responsibility for administering
the statutory program."
Ghevron itself concerned a relatively routine,
technical controversy concerning the implementation
of a complex regulatory statute. Nothing in the
Court's decision purported to announce a landmark
holding. See Thomas W. Merrill, The Story of
Chevron: The Making of an Accidental Landmark, in
Administrative Law Stories 399, 402 (Peter L.
Strauss ed., 2006). Perhaps because of the relatively
routine and technical nature of the underlying
7dispute in the Chevron case, the Court "was much
clearer" in articulating Ghevron's two-step approach
than it was in articulating "the rationale that
accounted for it." Cass R. Sunstein, Chevron Step
Zero, 92 Va. L. Rev. 187, 197 (2006). Over the years,
this lack of clarity has led to significant doctrinal
confusion, tension, and debate in this Court and the
circuit courts, as well as among academics and
commentators, over Chevron's "legal pedigree" and
how broadly to apply the two-step Ghevron deference
analysis. See Nathan Alexander Sales & Jonathan H.
Adler, The Rest Is Silence: Chevron Deference,
Agency Jurisdiction, and Statutory Silences, 2009 II.
Ill. L. Rev. 1497, 1522, 1525 (2009).
Some commentators have argued that Chevron is
grounded in constitutional separation-of-powers
principles. See, e.g., Douglas W. Kmiec, Judicial
Deference to Executive Agencies and the Decline of the
Nondelegation Doctrine, 2 Admin. U. 269, 269-70
(1988); Richard J. Pierce, Jr., Reconciling Chevron
and Stare Decisis, 85 Geo. L.J. 2225, 2232-34 (1997).
Others have suggested that Chevron should be seen
as a rule of federal common law. See, e.g., William N.
Eskridge, Jr. & Philip P. Frickey, Quasi-
Constitutional Law: Clear Statement Rules as
Constitutional Lawmaking, 45 Vand. L. Rev. 593,
618-19 (1992); David M. Hasen, The Ambiguous
Basis of Judicial Deference to Administrative Rules,
17 Yale J. on Reg. 327, 345-54 (2000). Still others
maintain that C'hevron deference is derived from
congressional intent. See, e.g., Ernest Gelihorn &
Pail Verkuil, Controlling Chevron-Based Delegations,
20 Cardozo L. Rev. 989, 1007 (1999); Thomas W.
Merrill & Kristin E. Hickman, Chevron's Domain, 89
Geo. L.J. 833, 836-37, 872 (2001); Sunstein, Chevron
8Step Zero, 92 Va. L. Rev, at 198; Daniel A. Lyons,
Tethering the Administrative State: The Case Against
Chevron Deference For FCC Jurisdictional Claims,
36 J. Corp. L. 823, 830-31 (2011).
Indeed, the conflict that presently exists among
lower courts on the very question presented in this
case reflects this fundamental doctrinal confusion,
tension, and debate over Chevron's rationale and
scope.2
While the Court may not have been as clear as it
could have been about the doctrinal pedigree of its
two-step approach in Chevron itself the Court has
been relatively consistent in maintaining that
congressional delegation is the basis for according
controlling weight to an agency's reasonable
interpretation of an ambiguous statute. In Adams
Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990), the
Court explained that "[a} precondition to deference
2 Compare N. Ill. Steel Supply Go. v. Secy of Labor, 294 F.3d
844, 847 (7th Oir. 2002); United Transp. Union-Illinois
Legislative Bd. v. Surface Transp. Bd., 183 F.3d 606, 612 (7th
Cir. 1999); Durable Mfg. Co. v. United States Dep't of Labor, 578
F.3d 497, 501 (7th Cir. 2009; Bolton v. Merit Sys. Prot. Ed., 154
F.3d 1313, 1316 (Fed. Cir. 1998) (reviewing an agency's
determination of its own statutory jurisdiction without applying
Ghevron?s two-step analysis), with NE Hub Partners, L.P. v.
GNG Transmission Corp., 239 F.3d 333, 355 (3d Cir, 2001);
Puerto Rico Mar. Shipping Auth. v. Valley Freight Sys., Inc.,
856 F.2d 546, 552 (3d Cir. 1988); Lyon Gou.nty Bd. of Gomm'rs v.
EPA, 406 F.3d 981, 983 (8th Cir. 2005); Hydro Res., Inc. v, EPA,
608 F.3d 1131, 1145-1146 (10th Cir. 2010) (applying Chevron's
two-step analysis to questions of an agency's statutory
jurisdiction).
9under Chevron is a congressional delegation of
administrative authority." Likewise in Dunn v.
Commodity Futures Trading Go,nm, 529 U.S. 465,
479 n.14 (1997), the Court described Gheuron
deference as "aris[ingJ out of background
presumptions of congressional intent" (citing Smiley
v. Citibank (S.D.), 517 U.S. 735, 740-41 (1996)). And
in Christensen v. Harris Gounty, 519 U.S. 576 (2000),
a majority of the Court held that (i) Congress can
only be said to have impliedly delegated the power to
interpret ambiguous statutory language when it has
granted an agency power to take actions that bind
the public with the "force of law" and (ii) other
agency interpretations should only receive a lesser
form of deference (Skidmore deference) or no
deference at all. Id. at 587 (citing Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944)).
United States v. Mead Corp. made it even clearer
that eligibility for chevron deference depends on a
delegation of interpretive authority to a federal
agency. In Mead, the Court held that the U.s.
Customs Service's tariff classification rulings were
not entitled to Chevron deference, and its decision
makes it clear that "congressional intent is the
touchstone" for determining whether an agency's
interpretation of a statute may be eligible for
deference under Ghevron's two-step approach. Sales
and Adler, The Rest Is Silence, 2009 U. Ill. L. Rev, at
1526; see also Thomas W. Merrill, The Mead
Doctrine: Rules and Standards, Meta-Ruies and
Meta-Standards, 54 Admin. L. Rev. 807, 812 (2002)
("At the most general level, Mead eliminates any
doubt that Chevron deference is grounded in
congressional intent."). As the Court put it then,
Chevron applies "when it appears that Congress
:io
delegated authority to the agency generally to make
rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated
in the exercise of that authority." Mead, 533 U.S. at
226-27. The Court further explained that while there
are many ways Congress may demonstrate its
intention to delegate interpretive authority
(including, as in Mead itself, by granting authority to
engage in notice-and-comment rulemaking), an
agency's decision is not eligible for Ghevron deference
without that demonstration of Congress's intent. Id.
at 227.
Mead's explicit grounding of Chevron deference
in Congress's intent to delegate authority to
interpret ambiguity in a statute has several
important implications for the doctrinal debates
about chevron's legal pedigree and how broadly to
apply the Gheuron deference analysis.
First, by making it clear that eligibility for
Ghevron deference depends on Congress's intent,
Mead also makes it clear that Ghevron deference
does not arise directly from constitutional
separation-of-powers principles. Judicial deference
under Ghevron is possible and appropriate only
where there is reason to think that Congress has
delegated authority to the agency to fill in gaps and
resolve ambiguities in a particular statute, and it
always is subject to congressional control and
revision. In other words, "Chevron deference should
apply only where Congress would want [it] to apply."
See Merrill & Hickman, Chevrons Domain, at 836-
37. Gf. Nicholas Quinn Rosenkranz, Federal Rules of
Statutory Interpretation, 115 Harv. L. Rev. 2085,
2130 (2002) ("Congress could by statute eliminate
the Chevron doctrine.").
11
Second, Mead makes it clear that there must be
a judicial inquiry into whether Congress intended to
delegate authority to an agency to interpret a
statutory ambiguity before a court extends Chevron
deference to the agency's reasonable interpretation of
that ambiguity. Merrill & Hickman, Chevron's
Domain, 89 Geo. U. at 836-37; Sunstein, Chevron
Step Zero, 92 Va. L. Rev, at 208. If there is a clear
sign of Congress's intent to delegate interpretive
authority, the interpretation is eligible for deference
under Ghevron's two-step inquiry. If not, the agency's
interpretation is not eligible for Jhevron deference,
and the court should apply a lesser form of deference
or no deference at all. Sales and Adler, The Rest Is
Silence, 2009 Ti. Ill. L. Rev, at 1526.
Third, Mead confirms that mere ambiguity in a
statute is not sufficient to establish that Congress
intended to delegate to an agency interpretive
authority over that ambiguity, See also Gonzales v.
Oregon, 546 U.S. 243, 258 (2006) ("Chevron
deference, however, is not accorded merely because
the statute is ambiguous and an administrative
official is involved."). As lower courts have
recognized, ambiguity is necessary, but not
sufficient, to establish a delegation of authority and
allow for Chevron deference. See Michigan v. EPA,
268 F.3d 1075, 1082 (D.C. Cir. 2001) ("Mere
ambiguity in a statute is not evidence of
congressional delegation of authority"); Atlantic Ci&y
v. FERC, 295 F.3d 1, 9 (D.C. Cir. 2002) (same);
American Bar Ass'n v. FTC, 430 F.3d 457, 469 (D.C.
Cir. 2005) (same); Texas v. United States, 497 F.3d
491, 502 (5th Cir. 2007).
After Mead, courts must look for a clear sign that
Congress delegated authority to the agency to resolve
12
an ambiguity in a statute, relying on the traditional
tools of statutory interpretation. A clear sign can be
manifest in the text of the statute, in the agency's
power to engage in notice-and-comment rulemaking,
or in other ways. However, there must be an
affirmative reason to conclude that Congress
intended the agency to have interpretive authority
and courts to give controlling weight to the agency's
reasonable interpretation. As Professor Adrian
Vermeule, a Mead critic, has written:
Rather than taking ambiguity to signify
delegation, Mead establishes that the default
rule runs against delegation. Unless the
reviewing court affirmatively finds that
Congress intended to delegate interpretive
authority to the particular agency at hand, in
the particular statutory scheme at hand,
Chevron deference is not due and the Chevron
two-step is not to be invoked.
Adrian Vermeule, Introduction: Mead in the
Trenches, 71 Geo. Wash. L. Rev. 347, 348 (2003),
quoted in Sales and Adler, The Rest Is Silence, 2009
U. Ill. L. Rev, at 1528.
Fourth, Mead's focus on congressional intent also
suggests that certain types of statutes are less likely
to be subject to the Jhevron framework. Gf. Food &
Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 159 (2000) ("In extraordinary cases,
there may be reason to hesitate before concluding
that Congress has intended such an implicit
delegation.").
For example, the Court frequently has suggested
that Congress would expect a reviewing court to give
controlling weight to an agency's reasonable
13
interpretation of an ambiguity in a statute where (1)
the agency has specialized knowledge or expertise in
the technical subject matter of a statute-knowledge
and expertise that gives the agency an institutional
advantage over a reviewing court in resolving
statutory questions in accord with Congress's policy
objectives and intent, (2) deference to the agency
would increase political control and accountability, or
(3) the agency's range of reasonable interpretive
choices are tethered to express statutory mandates
that serve to limit the danger of agency self-dealing
and aggrandizement.3 Conversely, the Court has
been reluctant to give controlling weight to an
agency's interpretation of an ambiguity in a statute
where the agency lacks expertise or competence
relative to a court or where deference arguably would
decrease political accountability and increase the
dangers of agency self-dealing and aggrandizement.4
3 See Chevron, 467 U.S. at 865 (regulations eligible for
deference where agency indisputably had authority to interpret
statutory ambiguities and was an "expert[] in the field," and.
part of a "political branch of Government."); see also City of New
York v. FCC, 486 U.S. 57, 67 (l988 (regulations deemed
eligible for deference where the statute "grants the [FCC] the
power to 'establish technical standards" (citation omitted));
NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 829 (1984)
(Board's order "on an issue that implicates its expertise in labor
relations" was eligible for deference where the Court previously
determined "that the task of defining the scope" of the statute
was for agency); Red Lion Broadcasting Go. v. FCC, 395 U.S.
367, 381-82 (1969) (upholding regulations where Congress
"ratified" agency construction "with positive legislation").
4 See, e.g.. Gonzales, 546 U.S. at 243 (evaluating an executive
officer's claim of delegated interpretive authority de novo; and
14
II. Courts Should Presume Chevron Does Not
Apply To An Agency's Interpretation Of Its
Own Jurisdiction-Controlling Statutory
Provisions.
A federal agency's interpretation of its own
jurisdiction-controlling statutory provisions should
not be eligible for Gheuron deference unless the
reviewing court (1) conducts a de novo review of the
statutory scheme and (2) finds an affirmative reason
to conclude that Congress intended the agency to
have authority to make interpretations of the
jurisdiction-controlling provisions that carry the
force of law.
A. The Court Has Never Held That An
Agency's Interpretation Of Jurisdiction-
Controlling Provisions Is Eligible For
Chevron Deference.
Whenever an issue has arisen regarding an
agency's authority to issue a binding interpretation
of a jurisdiction-controlling provisions, the Court has
reviewed the agency's authority de novo-assessing
whether Congress has delegated power to make rules
with the force of law. The Court never has held an
agency's interpretation of its own jurisdiction-
controffing provisions to be eligible for Chevron
deference. There is no reason to reverse course.
rejecting the claimed authority where, among other things, the
claimed authority (1) did not comport with the text of the
statutory delegation provision; (2) would have an
"extraordinary" effect on the balance of power among branches
of the federal government and between the fedeia1 government
and the states; and (3) did not align with any special "expertise"
of the officer.
15
Two years after Chevron, in Commodity Futures
Trading Gomm'n v. Schor, 478 U.S. 833 (1986), the
Court made remarks that implied that an agency's
views on the scope of its jurisdiction could be eligible
for deference from the judiciary under Chevron.
However, a close reading of Schor shows that the
Court reviewed and decided the jurisdiction of the
CFTC de novo, based on the "face of the [Commodity
Exchange Actjj," its "unambiguousJ" legislative
history, and "abundant evidence" of what Congress
"plainly intended." Id. at 841-43, 847. It was only
after the Court had conducted its own independent
assessment of the jurisdiction-controlling statutory
provisions that the Court made passing remarks
about the CFTC's "long-held position" on the
meaning of the provisions. Id. at 845 (describing the
CFTC position as reasonable and worthy of
considerable weight under chevron). And, even those
passing remarks were prefaced by what appears to
be an independent judicial determination that the
CFTC had some sort of unspecified) "delegated
authority" under the Act to make rules interpreting
the jurisdiction-controlling provisions. Id. In any
event, in light of the Court's preceding independent
assessment of the CFTC's jurisdiction under the Act,
the Court's passing remarks about the CFTC's
position on the jurisdictional issue should be seen for
what they are-dicta from the beginning of the
Chevron era.
Two years after Schor, in Mississippi Power &
Light Go. v. Mississippi cx rd. Moore, 487 U.S. 354
(l988, Justices Scalia and Brennan wrote dueling
opinions that did address the question of whether a
federal agency's interpretation of its own
jurisdiction-controffing provisions should be eligible
16
for Chevron deference. Id. at 377-84 (Scalia, J.,
concurring in judgment), 384-91 (Brennan, J.
dissenting). Although the competing considerations
of the two justices have been echoed repeatedly by
jurists and academics, they were not addressed in
the Court's primary opinion. Id. at 367-70 (Stevens,
J., for the Court) (making no reference to Ghevron).
Furthermore, since Mississippi Power, the Court has
sidestepped numerous opportunities to illuminate
the extent to which jurisdictional questions ought to
be analyzed under the C7ievron framework, typically
by finding the meaning of jurisdiction-controlling
statutory provisions to be plain and unambiguous.5
5 See Mississippi Power. 487 U.S. at 370-77 (Stevens, J., for the
Court) (upholding the agency's jurisdiction without citing
Chevron); Dole v. United Steelworkers of America, 494 U.S. 26,
42-43 (1990) (holding that Congress clearly denied the 0MB
jurisdiction to review disclosure rules under the Paperwork
Reductions Act; MGI Telecomm. Corp. v. AT&T, 512 U.S. 218
(1994) (striking down FCC's regulation that would eliminate
tariff filings for most interexchange telephones); Brown &
Williamson, 529 U.S. at 159 (holding that Congress clearly
denied the FDA jurisdiction to regulate tobacco); Nat'l Cable &
Telecommunications Ass'n v. Brand X Internet Serus., 545 U.S.
967 (2005 (sidestepping FCC jurisdiction issues);
Massachusetts u. EPA, 549 U.S. 497 2007) holding that the
Clean Air Act unambiguously conferred jurisdiction on the EPA
to regulate greenhouse gases).
17
B. An Agency's Interpretation Of
Jurisdiction-Controlling Provisions
Should Not Be Eligible For Chevron
Deference Unless A Court Finds A
Clear Sign Congress Vested The
Agency With Authority To Interpret
Ambiguities In Those Provisions.
The delegation principle implicit in Chevron and
explicit in Adams Fruit, Dunn, Ghristensen, and
Mead provides a solid foundation for the right
answer to the question presented in this case. Simply
put, an agency's interpretation of its own
jurisdiction-controlling provisions should not be
eligible for Ghevron deference, unless a court finds a
clear sign of congressional intent to delegate
authority to the agency to determine, in a reasonable
way, the meaning of ambiguity in the jurisdiction-
controlling provisions. Merrill & Hickman, Chevron's
Domain, 89 Geo. U. at 836-37; Sales and Adler, The
Rest Is Silence, 2009 U. IlL L. Rev, at 1528-32;
Lyons, Tethering the Administrative State, 36 J.
Corp. L. at 831-32.
Furthermore, the clear sign that a court needs
cannot be established by mere ambiguity in the
jurisdiction-controlling provisions themselves. There
must be an affirmative reason for the reviewing court
to conclude that Congress intended or expected the
agency to have interpretive authority. Merrill &
Hickman, Chevron Domain, 89 Geo. U. at 836-37;
Sales and Adler, The Rest Is Silence, 2009 U. Ill. U
Rev, at 1528-32; Lyons, Tethering the Administrative
State, 36 J. Corp. U. at 831-32. That a statute fails to
resolve a jurisdictional question is not, in itself,
evidence of Congressional intent to delegate
authority to an agency.
18
There should be, in other words, a strong
presumption against treating an agency's
interpretation of jurisdiction-controlling statutes as
eligible for Chevron deference-a presumption that
can be rebutted only by a de novo statutory analysis
that shows that Congress affirmatively entrusted the
agency with such authority. See Nathan S. Chapman
& Michael W. McConnell, Due Process as Separation
of Powers, 121 Yale L.J. 1672, 1788 (2012) ("Rather
than defer to executive assertions of power, courts
should presume that Congress has not intended to
delegate power unless it has done so with clarity.").
C. A Strong Presumption Against
Chevron Deference In Cases Of
Jurisdiction-Controlling Provisions
Comports With Constitutional
Principles Requiring That A
Delegation To An Agency Be Guided
By An Intelligible Principle.
A strong presumption against extending Ghevron
deference in cases involving agency interpretations
of jurisdiction-controlling provisions would be
consistent with (1) Article I of the Constitution,
which vests all legislative power in the Congress; (2)
settled principles of constitutional law that make it
clear that federal agencies have no inherent powers
but only delegated ones; and (3) the rules providing
that statutes should be construed to avoid difficult
constitutional questions and in light of the modest
constraints of the nondelegation doctrine. U.S.
Const. art. I, § 1; Chrysler Gorp. v. Brown, 441 US.
281, 302 (1979) ("The legislative power of the United
States is vested in the Congress, and the exercise of
quasi-legislative authority by governmental
departments and agencies must be rooted in a grant
19
of such power by the Congress and subject to
limitations that body imposes.").
It is "axiomatic" that a federal agency has no
inherent power to act unless and until Congress
delegates power to it through a statute. Boweii v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988;
La. Pub. Serv. Gomm'n v. FCC, 476 U.S. 355, 374
(1986) ("[Ala agency literally has no power to act...
unless and until Congress confers power upon it.").
Furthermore, consistent with Article I, Congress
cannot give an agency the power to define its own
political or public policy mission; Congress must
define the agency's power and authority and give the
agency an "intelligible principle" to guide the
agency's efforts to interpret, implement, and enforce
the statute.
The nondelegation doctrine ensures that
"important choices of social policy are made by
Congress, the branch of our Government most
responsible to the popular will." Industrial Union
Dep it, ARL- GIG v. American Petroleum Institute, 448
U.S. 607, 685 (1980) (IRehnquist, J., concurring). The
doctrine prevents Congress from forsaking its duties
and prevents agencies from arrogating undelegated
powers. Loving v. United States, 517 U.S. 748, 757
(1996). Simply put, the doctrine fosters democratic
accountability and safeguards liberty.
While this Court has been reluctant to apply the
nondelegation doctrine directly to strike down
statutes that delegate power to agencies, see
Mistretta v. United States, 488 U.S. 361, 372 (1989,
it consistently has reaffirmed the bedrock
constitutional principle that agencies have only those
powers delegated to them by Congress. The Court
thus has interpreted statutes so as to avoid potential
20
nondelegation doctrine problems, see, e.g., Industrial
Union Dep't, 448 U.S. at 646; Nat? Gable Television
Ass'n v. United States, 415 U.S. 336, 340-4? (1974),
and has required an agency to construe a statute so
as to avoid nondelegation doctrine concerns. See
AT&T Gorp. v. Iowa Public Utilities Bd., 525 U.S.
366, 388-89 (1999).6 This approach ensures that
federal agencies only exercise those powers actually
delegated by Congress. See Chapman & McConnell,
Due Process as Separation of Powers, 121 Yale L.J. at
1786-87 ("Armed with the understanding that the
legislative branch, not the executive, makes law,
courts should interpret statutes narrowly to ensure
that any delegation is the genuine intention of
Congress, and not an instance of executive
overreach.").
The question of whether Congress has delegated
authority to an agency to decide the meaning of
jurisdiction-controlling statutory provisions logically
and chronologically precedes the question of whether
the agency's exercise of that power is entitled to
deference under Ghevron. See NLRB v. Food and
Gommercial Workers, 484 U.S. 112, 123 (1987)
(Ghevron review of agency interpretations of statutes
applies only to regulations "promulgated pursuant to
congressional authority"); Crandon v. United States,
494 U.S. 152, 177 (1990) (Scalia, J., concurring in
judgment) (rejecting Ghevron deference where the
statute "is not administered by any agency but by
the courts"); cf. Bureau of Alcohol, Tobacco and
6 See also John F. Manning, Textuatism as a Nondelegation
Doctrine, 97 Colum. L. Rev. 673 (1997); Cass R. Sunstein,
Nondelegation Ganons, 67 U. Chi. L. Rev. 315, 315-17 (2000).
21
Firearms v. FLRA, 464 U.S. 89, 97 (1983) (refusing to
sanction "'unauthorized assumption by an agency of
major policy decisions" (quoting American Ship
Building Go. v. NLRB, 380 U.S. 300, 318 (1965)).
A holding in this case that recognizes this reality
and establishes a strong presumption against
extending Chevron deference to an agency's
interpretation of jurisdiction-controlling provisions
would advance the ultimate concerns of the
nondelegation doctrine and avoid potential
constitutional problems associated with giving
agencies interpretive authority to define their own
jurisdiction by presumption or implication.
D. A Strong Presumption Against
Chevron Deference Also Comports
With The Administrative Procedure
Act And Decades Of Precedents.
The text of the Administrative Procedure Act
(APA) and decades of administrative law precedents
from this Court further reinforce the conclusion that
an agency's interpretation of jurisdiction-controlling
statutory provisions should not be eligible for
Chevron deference unless a court finds a delegation
by Congress to the agency of authority to issue
reasonable interpretations of ambiguities in the
jurisdiction-controlling provisions.
In the APA, Congress directed that the courts
should decide "all relevant questions of law." 5
U.S.C. § 706. As Justice Scalia noted in his dissent
in Mead, "tjhere is some question whether C'hevron
was faithful to the text of the [APAJ, which it did not
even bother to cite." Mead, 533 U.S. at 241 (Scalia,
J., dissenting). Yet, there is no genuine conflict
between § 706 and Chevron in this case or any other,
22
so long as a reviewing court conducts a de novo
review of the particular statutory scheme and
decides for itself (without deference to the agency)
whether Congress has entrusted the agency with
authority to issue reasonable interpretations of a
particular statutory provision that carry the force of
law. If the court answers that "relevant" question of
law in the affirmative, then the court's legal finding
(that Congress shifted primary responsibility for
interpreting statutory ambiguities from the court to
the agency) makes it possible to proceed with the
Gheuron inquiry in harmony with § 706. If the court
answers that "relevant" question of law in the
negative, deference under Gheuron is not possible.
The APA further recognizes a distinction
between (1) questions of agency jurisdiction and (2>
other questions of law or policy that are relevant to
evaluating agency rulemakings and actions. As the
APA makes clear, agencies only have authority to
interpret, implement, and enforce a law or regulation
when the agency has jurisdiction. Section 558(b), for
instance, provides that "[a] sanction may not be
imposed or a substantive rule or order issued except
within jurisdiction delegated to the agency and as
authorized by law" 5 U.S.C. § 558(b). Likewise
§ 706(2)(C) provides that courts are to invalidate and
set aside those agency actions determined to be "in
excess of statutory jurisdiction, authority, or
limitations, or short of statutory right." 5 U.S.C.
§706(2)(C).
Decades of this Court's precedents reinforce the
legal distinction between questions of agency
jurisdiction and other questions of law or policy.
These precedents also support a holding by the Court
in this case that an agency's interpretation of
23
jurisdiction-controlling provisions ordinarily should
not be eligible for Ghevron deference. See Federal
Maritime Gomrn'n v. Seatrain Lines, Inc., 411 U.S.
726, 745 (1973) ("an agency may not bootstrap itself
into an area in which it has no jurisdiction" through
the adoption of a long-standing interpretation of its
statutory authority); Adamo Wrecking Co. v. United
States, 434 U.S. 275, 288 n.5 (1978) (rejecting an
administrator's "unexplained exercise of supposed
authority"); Adams Fruit Go., 494 U.S. at 650 (citing
and quoting Seat rain and Adarno Wrecking as
establishing "fundamental" principles of
administrative law).
The reasoning in these cases aligns fully with
Mead, 533 U.S. at 228-27. The agency cannot
bootstrap itself into an area where it has no
jurisdiction through an interpretation of jurisdiction-
controlling provisions. To the contrary, an agency's
interpretation of those provisions may be eligible for
Ghevron deference only "when it appears that
Congress delegated authority to the agency generally
to make rules [about the meaning of that statute}
carrying the force of law." Id. Furthermore, as the
text of the APA and the case law described above
demonstrate, a reviewing court cannot wash its
hands of responsibility for assessing whether
Congress has made such a delegation to an agency.
Some have objected that "there is no discernible
line" between jurisdictional and non-jurisdictional
questiOns. Mississippi Power, 487 U.S. at 381
(Scalia, J., concurring in the judgment). Such
concerns are overstated. "However fuzzy or difficult
to apply the concept of jurisdiction may be in some
instances, both Congress and the Court consistently
have drawn a distinction between questions of
24
agency jurisdiction and other legal questions and
limitations on agency power." Sales and Adler, The
Rest Is Silence, 2009 U. Ill. L. Rev, at 1537. This
Court and lower federal courts routinely distinguish
between jurisdictional and nonjurisdictional
questions, and this inquiry presents no greater
challenge than those addressed by federal courts all
the time. Id. at 1557-60; Lars Noah, Interpreting
Agency Enabling Acts: Misplaced Metaphors in
Administrative Law, 41 Win. & Mary L. Rev. 1463,
1522-24 (2000).
Requiring agencies to identify a statutory basis
for any jurisdictional claim will resolve many cases.
Courts may also consider whether a given assertion
of jurisdiction is novel for an agency or strays from
its "core regulatory assignment." Gelihorn &
Verkuil, Controlling Chevron-based Delegations, 20
Cardozo L. Rev, at 1009, 1011; see also William N.
Eskridge, Jr. & Lauren E. Baer, The Gontinuum of
Deference.' Supreme Court Treatment of Agency
Statutory Interpretations from Chevron to Hamdan,
96 Geo. L.J. 1083, 1130 (2008) (distinguishing
between "wholesale" and "retail" applications of a
statute). In all instances, however, the existence of
agency jurisdiction is a necessary predicate for
Chevron deference. This distinction between
jurisdictional and nonjurisdictional questions should
be maintained and re-affirmed when this case is
resolved.
25
E. A Strong Presumption Against
Chevron Deference Would Limit
Agency Aggrandizement, While
Ensuring That Congress Can Enact
A Statute Making The Agency The
Primary Interpreter Of Its Own
Jurisdiction, If And When Congress
Wishes To Do So.
As the Court recognized in Brown & Williamson,
529 US. at 159, in "extraordinary" cases, there is
"reason to hesitate" before concluding that Congress
intended to entrust an agency with primary
responsibility for interpreting ambiguities in federal
statutes or expected a court to give controlling
weight to an agency's views.
By any fair measure, an agency's interpretation
of jurisdiction-controlling provisions presents an
"extraordinary" case, requiring a careful analysis of
the natural and legitimate expectations of Congress
both in general and in a particular case. This is so
because an agency's interpretation of jurisdiction-
controlling provisions poses a special risk of agency
self-dealing or aggrandizement: a risk that the
agency will exercise a power Congress did not intend
or expect it to have or that it will extend its power
more broadly than Congress envisioned.
Extending Chevron deference to agency to
interpretations of jurisdiction-controlling provisions
contravenes a fundamental principle within the
Anglo-American legal tradition. See, e.g., 1 Wffliam
Blackstone, Commentaries 91 ("if an act of
parliament gives a man power to try all causes, that
arise within his manor of Dale; yet if a cause should
arise in which he himself is party, the act is
construed not to extend to that; because it is
26
unreasonable that any man should determine his
own quarrel."); The Federalist No. 10 (James
Madison) (C. Rossiter ed. 1961) ("No man is allowed
to be a judge in his own cause; because his interest
would certainly bias his judgment, and, not
improbably, corrupt his integrity."); The Federalist
No. 80 (Alexander Hamilton) (C. Rossiter ed. 1961)
("No man ought certainly to be a judge in his own
cause, or in any cause in respect to which he has the
least interest or bias."). The Framers of the
Constitution were acutely aware of the tendency of
individuals to favor their own interest. Indeed, this
was among the central problems the Constitution's
structure of separated powers is designed to solve.
See The Federalist, No. 51 (James Madison) (C.
Rossiter ed. 1961).
This principle, that "foxes should not guard
henhouses," is among those upon which judicial
review of agency action is based. See Ernest A.
Young, Executive Preemption, 102 Nw. U. L. Rev.
869, 889 (2008); Cass R. Sunstein, Interpreting
Statutes in the Regulatory State, 103 Harv. L. Rev.
405, 446 (1989) ("The basic case for judicial review
depends upon the proposition that foxes should not
guard henhouses."). Agency officials are no less
prone to the temptation to interpret ambiguities in
light of their own self-interest, however measured.
See Timothy K. Armstrong, Chevron Deference and
Agency Self-Interest, 13 Cornell J. L. & Pub. Pol'y
203, 208-11 (2004) (discussing agency se1f-interest.
Judicial review of agency action helps ensure that
agencies do not engage in self-dealing or
aggrandizement.
Even before Ghevron, courts were wary of
allowing agencies to determine the scope of their own
27
power. For example, in Addison v. Holly Hill Fruit
Prods., Inc., 322 U.S. 607, 616 (1944), the Court held
that the "[djetermination of the extent of authority
given to a delegated agency by Congress is not left
for the decision of him in whom authority is vested."
Likewise, in Social Security Board v. Nierotko, 327
U.S. 358, 369 (1946), the Court made it clear that
"[an] agency may not finally decide the limits of its
statutory power[;} [t]hat is a judicial function." The
Court did not abandon such concerns with Chevron.
To the contrary, as Professors Gellhorn and Verkuil
observed, the very structure of Ghevron is attentive
to the problem of agency aggrandizement in that "it
requires courts to make the first determination of
whether Congress answered the precise question at
issue [because] agencies have no comparative
advantage in reading statutes and . . . agency self-
interest may cloud [an agencys] judgment."
Gont roiling Chevron-based Delegations, 20 Cardozo
L. Rev, at 1009.
Aggrandizement not only raises the risk that an
agency might wield excessive power but also that it
might disrupt Congress's intended distribution of
power. See John F. Manning, The Nondelegation
Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev.
223, 276-77 "If Congress has addressed a subject,
but has done so in a limited way, this fact may itself
suggest that Congress has gone as far as it could, as
far as the enacting coalition wished to, on the subject
in question"); see also Sales and Adler, The Rest Is
Silence, 2009 U. Ill. L. Rev, at 1551-53; Merrill &
Hickman, Chevrons Domain, 89 Geo. L.J. at 912
(noting that no matter what Congress might
naturally intend or expect in a case involving an
ordinary statutory provision, it does "not follow" that
28
Congress would naturally harbor the same intent or
expectation in a case that implicates the existence or
scope of an agency's jurisdiction).7
A comparison of the institutional competencies
and incentives of Congress, the courts, and agencies
reinforces the conclusion that an agency's
interpretation of a jurisdiction-controlling provision
ordinarily should not be eligible for judicial deference
under Ghevron's two-step inquiry.
Even if one believes that an agency may have
some unique or valuable insight into the construction
of jurisdiction-controlling provisions based on the
7 In a smaller but no less important set of cases, an agency may
interpret a statute to disclaim jurisdiction-that is, the agency
may affirmatively renounce a power arguably granted to it or
conclude that an undisputedly granted power does not extend
as far as it might. Jurisdiction-disclaiming interpretations pose
the risk of abrogation: the possibility that an agency might fail
to discharge the duty with which Congress has charged it,
perhaps because of policy disagreements with the legislature or
because it fears public disapproval for taking politically
unpopular actions. Power-disclaiming interpretations also can
pose a danger of a different sort of agency aggrandizement:
agencies might focu5 on matters that advance their own
institutional interests, as distinct from the interests Congress
tasked them with serving. See Sales and Adler, The Rest Is
Silence. 2009 U. Ill. L. Rev, at 1503-07, 1548-50. Given the
potential for self-interested agency action that might disrupt
Congress's intended distribution of power, we see no doctrinal
or practical reason to distinguish between jurisdiction-seizing
and jurisdiction-denying agency interpretations. Ic!. And the
Court has not drawn any such distinction either. See, e.g.,
Mcz3sachusetts, 549 U.S. 497.
29
agency's expertise in a particular subject or its
familiarity with a federal statutory scheme or
program, Mississippi Power, 487 U.S. at 381-82
(Scalia, J., concurring in the judgment), it seems only
fair to say that an agency will have much less
institutional competence in answering questions of
jurisdiction than in answering complex technical or
scientific questions or making policy judgments
about how best to implement a statutory regime. At
the same time, the risks of aggrandizement or
abrogation associated with an agency's
interpretation of its own jurisdiction-controlling
provisions are much greater than in any ordinary
case involving complex technical or scientific
questions or competing policy judgments about how
best to implement a statutory regime. Agencies are,
after all, "proactive" "'policy entrepreneurs." Sales
and Adler, The Rest Is Silence, 2009 U. Ill. L. Rev, at
1553-54 (citation omitted); Lyons, Tethering the
Administrative State, 36 J. Corp. L. at 836-37.
In contrast, federal courts have their own unique
and valuable insights into the construction of
jurisdiction-controlling provisions based on the
courts' historical position and experience as the
arbiters of power among the various branches of
government. Furthermore, courts are inherently
reactive institutions: they cannot issue advisory
opinions or initiate proceedings to affirm or deny
agency jurisdiction over an activity or field. Sales
and Adler, The Rest Is Silence, 2009 U. ifi. L. Rev, at
1553-54 (citation omitted); Lyons, Tethering the
Administrative State, 36 J. Corp. L. at 836-37.
On balance, "it seems highly unlikely that a
responsible Congress would implicitly delegate to an
agency the power to define the scope of its own
30
power." AGLU v. FCC, 823 F.2d 1554, 1567 n.32
(D.C. Cir. 1987). Indeed, it is unlikely Congress
would delegate such authority at all. As then-Judge
Breyer observed, "Congress is more likely to have
focused upon, and answered, major questions," such
as whether to confer jurisdiction to an agency, while
"leaving interstitial matters," such as how delegated
authority is exercised, for resolution by the agency
during the "daily administration" of the statute.
Stephen Breyer, Judicial Review of Questions of Law
and Policy, 38 Admin. L. Rev. 363, 370 (1986).
III. The Fifth Circuit Did Not Follow The
Proper Path When It Automatically
Treated The FCC's Interpretation Of
Jurisdiction-Controlling Statutory
Provisions As Eligible For Cheuron
Deference.
The Fifth Circuit's decision in this case does not
follow the proper analytical path. That court neither
sought nor found a clear sign of congressional intent
to dlegate authority to the FCC to interpret
ambiguity in the agency's jurisdiction-controlling
provisions before deeming the FCC's interpretation of
those provisions eligible for Chevron deference.
Standing alone, that error should lead to vacatur of
the Fifth Circuit's judgment and remand for further
proceedings, consistent with Mead and the Court's
opinion.
Affirming the Fifth Circuit's judgment and
treating the federal agency's interpretation of its own
jurisdiction-controlling provisions as eligible for
Ghevron deference, without requiring an
independent search by a court for a clear sign of
Congress's intent to vest the agency with the power
to make a reasonable ruling on that issue, would be a
31
mistake. It would be inconsistent with Mead and
would establish a principle of statutory construction
that is in direct opposition to the principles used by
the Court in other cases interpreting statutes to
avoid constitutional nondelegation problems. It
would create a serious risk of self-dealing and
aggrandizement by federal agencies, especially by
independent federal agencies that are even further
removed from political control and accountability
than agencies under presidential administration. It
would give agencies a systematic advantage over
Congress on jurisdictional questions. And it would
make it easier for Congress to shirk its
responsibilities to delegate power clearly. None of
those outcomes would be desirable or consistent with
the balance of power among Congress, courts, and
agencies struck in past cases.
The Court should adhere to Mead, vacate the
Fifth Circuit's judgment, and remand the case so
that the Fifth Circuit can make an appropriate
assessment of whether Congress intended to entrust
the FCC with the power to interpret the jurisdiction-
controlling provisions at issue and, if Congress did
not, to make its own determination of the agency's
jurisdiction, without Chevron deference to the
agency's views on those threshold jurisdictional
matters.
32
CONCLUSION
For these reasons, and those set forth by the
Petitioners, the judgment below should be reversed.
Respectfully submitted,
flya Shapiro
Nicholas Quinn Rosenkranz
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, D.C. 20001
202-842-0200
ishapiro@cato.org
Cohn E. Wrabley
David J. Bird
Counsel of Record
REED SMITH LLP
225 Fifth Avenue
Pittsburgh, PA 15222
412-288-3131
dbird@reedsmithcom
Counsel for Amici Curiae
November 26, 2012