Government Asks Supreme Court to Leave ‘Chevron’ Doctrine As Is

Cities got their day in court Wednesday in their challenge to a 2009 FCC wireless zoning shot clock order previously upheld by the 5th U.S. Circuit Court of Appeals, which was heard by the U.S. Supreme Court. The major question that came up repeatedly as justices took up Arlington, Texas v. FCC was whether the high court should further add to already complicated case law on when an agency has jurisdiction to issue rules and whether agencies should receive deference when interpreting the scope of their own regulatory authority.

The more narrow question in Arlington is whether the FCC correctly decided it has authority to impose a shot clock on zoning decisions under what the justices acknowledged is ambiguous authority in Section 332(c)(7) of the Communications Act. Section 332(c)(7)(A) says that “Except as provided in this paragraph, nothing in this chapter shall limit or affect” state and local governments’ authority over zoning decisions. The exceptions are laid out in Section 332(c)(7)(B), which says state and local governments should act on siting applications “within a reasonable period of time after the request is duly filed” while “taking into account the nature and scope of such request."

The Chevron test is straightforward, said Solicitor General Donald Verrilli, who argued the Arlington case on behalf of the government. “Chevron does apply to a court’s review of an agency’s determination of jurisdiction, but only after a court concludes that Congress has delegated to the agency generally the authority to make rules carrying the force of law, and that the rule in question was promulgated in exercise of that authority.” In cases where there is ambiguity, “our position is that Chevron applies and that the agency gets deference so long as it’s a permissible construction of the statute,” he said.

By changing the Chevron test, the court could open a “Pandora’s box,” Verrilli warned. “Our view is that Chevron does provide a stable framework for the development of administrative law."

Thomas Goldstein, who argued the case for the cities, said the 5th Circuit correctly applied what has become a three-stage test for examining whether an agency has jurisdiction, as it evaluated the FCC’s order. The 5th Circuit went wrong when it deferred to the commission’s own view of its authority to impose a shot clock, said Goldstein of the Goldstein & Russell law firm and who co-founded Scotusblog, which closely follows many cases before the Supreme Court. “This case can get complicated quickly because the word ‘jurisdiction’ means a lot of different things to a lot of different people in a lot of different contexts, and the parties have advanced both broad and narrow theories for resolving the case."

Other cases that have limited the doctrine, especially U.S. v. Mead Corp., figured prominently in questions from the justices. Both sides faced queries, though Goldstein appear to face the toughest questioning.

Justice Ruth Bader Ginsburg weighed in first. “This case has been presented in a very complicated way,” she said. “What we're dealing with is a rule adopted by the commission and the commission’s rulemaking power, as you know, is very broad.” Why isn’t the shot clock order “just a proper implementation of that rulemaking authority?” she asked.

Justice Stephen Breyer appeared skeptical about the government’s warnings against changing Chevron. “Suppose you just said, ‘Look, what we're interested in is just one question, whether Congress wanted a court to give, in this kind of situation, deference to the agency,'” he said. “And the answer will be, ‘It depends.’ Chevron is a good rule of thumb, but it isn’t a straightjacket."

"I think we have said in a number of opinions -- and certainly I have said in a concurrence -- that the jurisdictional question, like any other question … is to be decided with deference to the agency,” said Justice Antonin Scalia. Scalia conceded that “it’s always a question of how much authority Congress gave the agency."

Justice Elena Kagan wondered aloud whether the tests the cities asked for would be unmanageable for the courts. “What we don’t do is this sort of provision by provision, subsection by subsection, ‘did Congress have a special intent as to this subject matter or that subject matter or the other subject matter?'” Kagan said. “We've just had some very simple rules about what gets you into the box where an agency is entitled to deference.”

"Your understanding of jurisdiction and what you're arguing for today is nothing more or less than this is a provision as to which Congress did not give the agency lawmaking authority,” said Chief Justice John Roberts, summing up the arguments by the cities. “You do not defer to the agency with respect to this provision because it’s outside its jurisdiction in the sense that it gets deference.”

"My sense is that the government is likely to prevail in its argument that the FCC is entitled to Chevron deference in this case,” said Free State Foundation President Randolph May, who attended oral arguments Wednesday. “It appears unlikely that a majority of the justices want to establish a new rule of construction regarding Chevron’s applicability to so-called jurisdictional issues. At the end of the day, it looks like the FCC’s position regarding the its timeliness of tower siting decisions will be upheld, and, apart from the Chevron wrinkles, that is a good thing as a matter of policy.” But May also conceded it is difficult to predict the outcome of cases based on oral arguments.