Scalia screws conservatives again: Upholds faulty notion that federal agencies have the authority to determine the scope of their own jurisdiction if the law is unclear

“The ruling is ‘unquestionably welcome news’ for EPA because it is often faced with unclear statutory language.

Read more at EE&E News.

6 thoughts on “Scalia screws conservatives again: Upholds faulty notion that federal agencies have the authority to determine the scope of their own jurisdiction if the law is unclear”

  1. I have to agree with the others, and I cannot argue with Scalia’s reasoning. If Congressional language is unclear, Congress cannot be relied upon to clarify it in a orderly or timely fashion. This is one of the primary reasons for rulemaking agencies in the first place. The alternative is eternal deadlock. While agencies have run amuck at times, and the courts have abdicated responsibility in the past, I do not see how they could rule otherwise.

  2. Howdy whitetop
    Why, yes, and that was more-or-less Justice Roberts’ point in the DemBamaCare case. RTF’s analysis is also good. Mr. Milloy is right that, in the real world, this is working out less well than we’d hope.

  3. Does it matter how the agencies actually function in reality, or how the lower courts function, or how the victims of the agencies function when they go into court?

    No it doesn’t. There is a question of law being decided. The Constitution is a contract, and the statutes are like appendices to that contract. The question being decided is, “What exactly do these words mean? What did the parties to the contract agree to be bound by, with this particular section?” If there are rogue agencies (and there are), the question of their rogue behavior has not entered into this case. The court was not being asked to rule on that. Therefore, it is required to disregard it when making this ruling.

    Fiat iusticia ruat caelum.
    “Let justice be done, though the sky falls.” The very essence of conservatism.

    “Peek out from the blindfold before deciding — because it’s not the items on the scales that really matter here — it’s how our friends and enemies will be affected by your ruling. Support the sky (us), though all justice be thrown away.” The very essence of liberalism?


  4. Scalia’s reasoning works great in the Ivory Tower — but not in the reality of highly politicized, vengeful and even rogue federal agencies. The excessive delegation by Congress to federal agencies is bad enough — but the federal agencies get a wide swath of “discretion” on top of that. This decision shows that he (and sadly Thomas) have a limited understanding of how the agencies actually function.

  5. Quote from Scalia’s opinion, written for the majority ….


    The dissent is correct that United States v. Mead Corp., 533 U. S. 218 (2001), requires that, for Chevron deference to apply, the agency must have received congressional authority to determine the particular matter at issue in the particular manner adopted. No one disputes that. But Mead denied Chevron deference to action, by an agency with rulemaking authority, that was not rulemaking. What the dissent needs, and fails to produce, is a single case in which a general conferral of rulemaking or adjudicative authority has been held insufficient to support Chevron deference for an exercise of that authority within the agency’s substantive field. There is no such case, and what the dissent proposes is a massive revision of our Chevron jurisprudence.

    Where we differ from the dissent is in its apparent rejection of the theorem that the whole includes all of its parts—its view that a general conferral of rulemaking authority does not validate rules for all the matters the agency is charged with administering. Rather, the dissent proposes that even when general rulemaking authority is clear, every agency rule must be subjected to a de novo judicial determination of whether the particular issue was committed to agency discretion. It offers no standards at all to guide this open-ended hunt for congressional intent (that is to say, for evidence of congressional intent more specific than the conferral of general rulemaking authority). It would simply punt that question back to the Court of Appeals, presumably for application of some sort of totality-of-the-circumstances test—which is really, of course, not a test at all but an invitation to make an ad hoc judgment regarding congressional intent. Thirteen Courts of Appeals applying a totality-of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos. There is no need to wade into these murky waters. It suffices to decide this case that the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority.
    * * *
    Those who assert that applying Chevron 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. Where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional.” If “the agency’s answer is based on a permissible construction of the statute,” that is the end of the matter. Chevron, 467 U. S., at 842.

    The judgment of the Court of Appeals is affirmed.


    Sounds pretty conservative to me. I don’t agree that Scalia (or Thomas) “screwed” anyone, with this ruling.

    Maybe the real issue here is that Roberts is not the strict constructionist that he’s been sold as. It is my sense that with this case, both the dissenters and the court’s liberal wing have engaged in situational ethics, while Scalia and Thomas alone have remained true to conservative principles. The majority opinion, authored by Scalia, is actually very skeptical of government power. But because the liberal members are in search of language that their side can twist and use out of context (and unlawfully so) to influence more courts in their favor, and because they needed allies to get such language passed, they voted for Scalia’s language, without the intention that it should be applied in the way that it demands.

    But that’s not Scalia’s fault, nor is it his problem. His job is to remain true to traditional conservative principles, upon which the U.S. and its Constitution were established. And he has done that.

    Roberts appears in his dissent to be concerned that the effects will be bad for conservatism and conservatives, by resulting in new de facto power grabs by the Executive Branch. But the plain language of Scalia’s opinion appears to rule out such power grabs, and to provide an (already existing) mechanism for preventing them. But it is not Scalia’s fault if people do not properly use this mechanism, or if liberal courts refuse to allow it.

    Scalia (like every other SC member) has his responsibility, and others have theirs. Roberts appears to have suggested that the Supreme Court has to do everyone else’s job for them because otherwise, there will be an erosion of liberty. But in trying to do others’ job pre-emptively, his opinion (were it adopted) would actually erode the legal safety valves that have already been in place for such problems. Therefore, I believe his opinion in this case amounts to dangerous situational ethics … as does, I daresay, his opinion about Obamacare, as well.

    In the long term, such situational ethics — besides being an unlawful abuse of the court’s power — benefit liberalism exclusively. Is Roberts aware of this, or is he ignorant of it? That is an important question.


  6. Perhaps it would be more appropriate to turn it back to Congress to write the legislation more clearly so their intent wouldn’t have to be interepreted by the courts. After all Congress is noted for writing crappy legislation and leaving it up the regulated community to have to deal a rouge agency like EPA.

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